Historic property regulations could hog-tie providers seeking sites.

In the last few years, the Advisory Council on Historic Preservation, a private institution that protects historic properties, has set its sights on towers. As part of its aggressive stance, the council promulgated a set of regulations in June 1999 that has set the stage and introduced a cast of characters. Like a Shakespeare an drama, there are a number of players, sides are formed, conflict ensues, and there are countless surprises. However, unlike the Bard's plays, there's no clear resolution of the underlying issues at the end of this play's third act.

Act I: The Stage Is Set
The regulations adopted by the council are meant to further the goals of the National Historic Preservation Act (NHPA) of 1966. The NHPA strives to promote the preservation of historic properties that contribute to the cultural heritage of the United States that are located outside of protected areas such as national parks. Spring boarding from its inclusion in the NHPA process, the council penned regulations that made a number of provisions mandatory that formerly were discretionary and added many new requirements. According to one tower-company representative, "Under the 1999 rules, the process involves up to 32 required actions or determinations, with many more sub-categories of possible actions" as compared to the seven discrete steps recommended under the old process.

In the year that the regulations have been in effect, they have attracted criticism and protests by those feeling the brunt of their effects. Thewireless community has added its voice to the Greek chorus, which strenuously opposes these regulations.

Act II: The Battle Is Joined
In February 2000, the National Mining Association (NMA) filed suit against the council in the U.S. District Court for the District of Columbia, challenging the procedures used to adopt the 1999 regulations. Specifically, the NMA claimed that by allowing two council members (the National Trust for Historic Preservation and the National Conference of State Historic Preservation Officers-SHPO) who weren't appointed by the resident to participate in the vote to adopt the 1999 regulations, the council violated the appointments clause of the Constitution rendering the regulations unconstitutional.

The court currently is considering a motion for summary judgment filed by the United Mining Association. Meanwhile, the council has responded with a series of actions designed to defuse the litigation's challenges.

Scene I: Cleaning Up Past Acts
In an effort to quell continued objections to procedural flaws, in June, the council decided to take a second vote on whether to reapprove the rules that currently are inplace. This time, the council voted without the participation of the two unappointed council members. Significantly, the council also voted to proceed with the issuance of an NPRM, for which comments were due on Aug. 10. The council stated that this action is meant to "provide an opportunity to address assertions about the procedural adequacy of the promulgation of the Section 106 regulations" and doesn't serve as evidence that the council agrees with the merits of NMA allegations. The council also stated that it anticipated that "the new final rule would be submitted to the council for a vote on adoption at its next scheduled meeting on Nov. 17, 2000," perhaps in hopes of making moot the procedural challenge raised by the NMA.

Scene II: Guarding Interests
To date, PCIA has been the most active wireless participant in the court proceeding. It has supported the NMA by filing an amicus brief. PCIA used its filing as a spring board for documenting the adverse effect that the regulations have had upon the industry. Representatives within the industry also have articulated their frustration over the chaos caused by such problems as imprecise definitions for historic properties, which encompass almost any man made structures more than 50 years old and vague standards for determining whether a project would have an adverse effect.

That is hardly the only complaint voiced by the industry. Service providers and tower companies have been concerned over some SHPOs' refusal to consider a site until contacted by the FCC. This would either place a horrendous and untenable burden upon the FCC to become involved in every site, or it would leave numerous providers unable to gain approval of towers without which the industry cannot meet the public's appetite for wireless services. Also vexing to critics is the fact that, some SHPOs, when they are willing to address given projects, require "off-site mitigation" agreements where the SHPO will agree to a telecommunications project if "the tower company contribute(s) financially to some worthy historic-conservation goal unrelated to the project, or to perform extensive historic-resource surveys of whole sections of the state. "According to critics, the net effect of the regulations is that they" have resulted in numerous interpretation disputes and regulatory uncertainties, causing costly project delays, wasteful diversion of compliance resources, and in some cases, abandonment of projects, depriving whole areas of wireless telecommunications services."

Scene III: Parrying & Thrusting
The council responded to the challenges of the litigation with a series of actions designed to defuse or moot its opponents' advances. It has filed a motion to stay any further action by the court until the completion of council's proposed rule making proceeding.

In a surprising move, the council chairman, Cathryn Buford Slater, has hinted at the possibility of significant concessions. Slater, on the eve of the day on which NPRM comments were due, is reported to have proposed suspending its 1999 rules. The nature of the suspension remains unclear as does its timing. According to Sharon Conway, council director of communications and intergovernmental relations, "The council could wait until its November meeting to vote on suspending its rules or hold a special meeting."

Further clouding this picture is the fact that the parties to the litigation are exploring settlement.

Act III: The Battle Continues
As the battle over the its rules continues, the council pursues three different strategies outside of the courtroom: 1) moving to conclude a new set of regulations; 2) considering suspending its 1999 regulations for providers; and 3) exploring settlement options. The industry should remain steadfast and vocal in its opposition to the extant rules, should press for reforms, which will avoid undue delay in the consideration of towers, and endorse efforts to reach a reasonable settlement. Both the industry and the council will invite future litigation and its partners - acrimony and unrealized expectations - to the stage if they do not pursue an acceptable middle ground. Tempering the irrespective positions should be the mutual understanding that having the court resolve matters is not "a consummation devoutly to be wished."

Sill ( wsill@wbklaw.com) is a partner and Lin (clin@wbklaw.com) is an associate at Wilkinson Barker Knauer LLP.