April 19, 2017–Several tribal entity organizations want the FCC to abandon a draft notice of proposed rulemaking scheduled for consideration at tomorrow’s monthly meeting that would explore the agency’s rules and procedures concerning historic preservation and environmental review (TR Daily, April 13). “Tribal Nations are deeply concerned with the proposed policy changes contained in the DNPRM,” the National Congress of American Indians (NCAI), the United South and Eastern Tribes Sovereignty Protection Fund (USET SPF), and the National Association of Tribal Historic Preservation Officers (NATHPO) said in a joint ex parte filing posted today in WT docket 17-79.

“Not only do these changes have the potential to harm a largely functional and streamlined tribal review process that preserves Tribal culture resources, they run counter to the intent of various laws, including the National Historic Preservation Act (NHPA), the National Environmental Protection Act (NEPA) and the Native American Graves Protection and Repatriation Act (NAGPRA). Furthermore, much of what the DNPRM seeks to address can be found in existing FCC documents, including the USET Voluntary Best Practices. NCAI, USET SPF and NATHPO strongly urge the Federal Communications Commission not to proceed with this draft Notice of Proposed Rulemaking and to avoid taking further action on these dockets,” the tribal groups said.

“In the event that the Commission does move forward with this Draft Notice of Proposed Rulemaking, the Commission must conduct government-to-government consultation with Tribal Nations across the Country,” the filing added. “It is the Commission’s obligation to consult on any major changes to federal government processes that impact Tribal Nations. Thus far, the Commission has not conducted consultation in any form with Tribal Nations on this topic.”

A fact sheet on the draft NPRM, which was circulated with a companion draft notice of inquiry late last month (TR Daily, March 30), noted that the draft NPRM, among other things, would “open a review of FCC rules and procedures for historic preservation (NHPA) and environmental (NEPA) review ….” For example, the fact sheet noted that the NPRM would seek comment on (1) “[t]he NHPA process, including measures to address costs and delays attributable to Tribal Nations’ and State Historic Preservation Officers’ participation in that process”; (2) “[t]he NEPA process, including the costs and benefits of the Commission’s NEPA rules”; (3) “[o]ptions to exclude deployments from historic preservation review”; (4) “[t]he scope of the Commission’s responsibility to review wireless facility construction under the NHPA and NEPA”; and (5) “[o]ptions to address the issue of ‘Twilight Towers,’ certain towers that cannot readily be used for siting small deployments because they may not have completed historic preservation review.”

“It must be emphasized that the issues presented in the NPRM are not new. Rather, they have been discussed among the interested parties for years and led to very substantial understandings and agreements that have provided guidance to the FCC, Tribal Nations and Industry,” noted the ex parte filing by the three tribal groups. “For example, the USET-FCC Best Practices, which were adopted on October 24, 2004, provide comprehensive recommendations for a process that would provide certainty to Industry while protecting Tribal sacred sites … “ the filing added, saying that “[i]n the most recent discussions, USET submitted to the FCC and Industry a document that expressly set forth the substantial overlap between the Best Practices and the four principles that Industry representatives had proposed for a ‘revised’ historic review process (see Attachment B, ‘Assessing Commonalities Between the Principles Proposed by Industry and the USET-FCC Best Practices,’ January 18, 2017). These Best Practices may be specific to USET, but they are illustrative of what is possible when the parties work together.

“Further, by memorandum dated March 27, 2017, after conducting internal consultations, USET SPF specifically responded to each of the four Industry principles …” the filing said, adding that “[i]n virtually every case, USET SPF was largely in agreement with Industry on the main principles. However, USET SPF also noted that there are practical considerations that are necessary to make certain suggestions work. For example, Industry proposed a 30-day deadline for Tribal Nations to respond to an application. USET SPF agrees with that proposal, but disagrees with Industry on when the clock starts to run. USET SPF strongly believes that the clock should only begin once all the information necessary for a Tribal Nation to make a determination of impact has been provided by Industry. NATHPO’s research and surveys of members confirm[] this same finding. Too often, Industry representatives send deficient information which prevents Tribal Nations from beginning a comprehensive and thorough review of an application.”

“Because of the work described immediately above, the process for assessing the historic impact of cell towers has gone relatively smoothly and many sensitive sites have been avoided,” the groups said. “Industry has asserted that they hardly ever impact a sensitive site: this is because of the success of discussions between Industry representatives and Tribal Nations and not because Industry, on its own, built on sites along major trade routes and high points frequently held sacred by Tribal Nations that are not sensitive in character.”

The groups also said the FCC shouldn’t adopt new rules only because of a handful of “bad actors.” “A radical change to policy, as a reaction to the conduct of a small number of Tribal Nations, is contrary to the FCC’s trust responsibility to act in the best interests of ALL Tribal Nations,” they said. The groups also urged the FCC to prioritize 5G deployment in Indian country due to its relatively low broadband penetration.

The filing also addressed specific issues discussed in the draft NPRM, such as tribal review delays, the costs of tribal review, certification of tribal areas of interest, multiple tribal reviews for one project application, applicant self-certification, rights-of-way reviews, collocations, and reviews of twilight towers.

“In the draft NPRM, both the wireless industry and the Commission cite delay in the Tribal review of proposed sites as a significant impediment to wireless deployment. We agree that reasonable timelines and deadlines should be adhered to. It is important to note, however, that the experiences of Tribal Nations with the review process are absent from this document, which focuses solely on the views and experiences of Industry,” the groups complained. “We are aware that many Tribal Historic Preservation Offices adhere to strict timelines as they respond to applicant requests for review. From the perspective of many Tribal Nations, it is the receipt of incomplete packets most often causing delays.” They said the FCC should work to convince additional tribes to adopt the USET best practices.

Regarding the costs of tribal review, they said, “As sovereign governments, it is appropriate for Tribal Nations to assess reasonable fees for reviewing industry applications. … We are aware that the actions of few Tribal Nations may be driving this conversation in a way that could impact all Tribal Nations. If the FCC believes one Tribal Nation to be charging exorbitant fees, it is the responsibility of the FCC to work with that individual Tribal Nation to remedy the situation. Changing policy as a reaction to a small number of Tribal Nations at the detriment of all Tribal Nations sets a dangerous precedent for the Commission in addition to being contrary to the Commission’s trust responsibility to work in the best interest of all Tribal Nations.”

The Commission also “asks if Tribal Nations should provide a form of certification for areas of interest. Asking Tribal Nations to quantify culture and provide documentation when attempting to protect historic and cultural properties rejects Tribal Sovereignty and the history of government to government relations between the US and Tribal Nations,” the filing noted. “If the Commission has reason to believe that an individual Tribal Nation is expanding their area of interest in an unreasonable way to take advantage of the TCNS [Tower Construction Notification System] system, it is the duty of the FCC to remedy the situation directly with that individual Tribal Nation. Forcing all Tribal Nations to certify their culture and heritage when attempting to protect their own cultural properties, is not the proper remedy.”

“The FCC asks when it is necessary for an applicant to compensate multiple Tribal Nations for the same project and whether there are mechanisms to gain efficiencies to ensure that duplicative review is not conducted by each Tribal Nation. Recognizing individual sovereigns is the responsibility of the FCC. The historic preservation concerns of one Tribal Nation cannot and should not be considered the same as historic preservation concerns of another Tribal Nation,” according to the filing.  “The FCC has a trust responsibility to each of the 567 Tribal Nations in America. Limiting Tribal input out of concern for industry convenience, as described in the draft NPRM, is a violation of the FCC’s trust responsibility.”

The groups also said they oppose permitting applicants to self-certify compliance with section 106 of the NHPA.

“In addition to being against the spirit of the law, self-certification will embolden industry bad actors and result in a dramatic increase in requests for FCC intervention,” they said. “Tribal Nations have expressed their concerns regarding some members of the wireless industry not working in good faith with Tribal Nations. In relying on industry’s interpretation of compliance, the Commission will be called in for direct consultation by Tribal Nations more often, thus straining FCC resources and undermining the gains made through the TCNS system. Setting up a system to allow applicants to self-certify their section 106 compliance could lead to legal ramifications and the potential for lawsuits against the Commission.”

They also said that the FCC has an obligation to consult with tribes even if a review exclusion is adopted for wireless facilities that are built in utility or communications ROWs on historic properties.

And they said tribal consultation also is required for collocations, including involving twilight towers. However, they said, “We suggest that the Commission work directly with individual Tribal Nations to come to an agreement on collocations” in cases where “a tower has already been found to have no effects to Tribal historic and cultural properties, and an applicant wishes to collocate on that same tower, without any new ground disturbance …”

The tribal groups and individual tribes are the latest parties to weigh in on the draft NPRM and the companion draft NOI.

In comments filed last week, the Advisory Council on Historic Preservation (ACHP) called the wireless infrastructure item premature and asked the Commission to defer action on it until it has consulted with key stakeholders (TR Daily, April 14). The National Conference of State Historic Preservation Officers and cultural and heritage groups also have taken issue with provisions in the draft item.

Additional tribes have defended their review of wireless projects, including the fees they charge, and commented on other issues.For example, the Miami Tribe of Oklahoma said it “has an excellent track record responding to vendor notifications averaging 12 days in submitting its determination back to vendors. In addition, the Tribe’s fees related to TCNS are very reasonable with New Build fees at $400 per project, Co-Location fees at $100 per project, and NODE fees at $200 per project. These fees offset the Tribe’s cost for staffing and costs associated with data collection, data storage, and software maintenance.”

The tribe said it “approves the concept of a Shot Clock provided that sufficient time is given for the Tribe to consult and respond.” It also recommended “a single defined window for all projects as opposed to varied response windows for different types of projects.” It also said that it vehemently opposes being classified as a contractor under any new regulation.” But it “supports classification as a consultant.” It also expressed support for TCNS process streamlining.

The Kialegee Tribal Town, which is also in Oklahoma, said, “It is imperative that the TCNS Program continue in-force to prevent damage and destruction of culturally significant sites of the Kialegee Tribal Town. Through our work we have preserved and protected our independent and sovereign interests in our former and current homelands utilizing the Section 106 process with consultation on a government to government basis.” It said it provides “prompt response to all cell tower notifications” and encouraged Congress to increase the FCC’s spending authority so it can update the TCNS. —Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily