Back in December of 2005 I posted a blurb about the battle between the FCC and the wrireless industry about Section 106 compliance (see “Section 106 in Trouble?…”, December 07, 2005). At that time the wireless industry was attempting to further weaken the Section 106 process in regard to cell towers. In my opinion, we had already gone too far when we reduced the amount of work necessary for Section 106 compliance with a Nationwide Programmatic Agreement (Section 106 is, for those non-archaeo types, the part of the National Historic Preservation Act that insures that undertakings done on Federal land, with Federal money, or requiring Federal permitting will have archaeological work conducted so we can triage, save or excavate sites that may be important to understanding our past).
The wireless industry was then arguing that cell towers are NOT federal undertakings an therefore not subject to Section 106 at all and they were arguing that the wording in the legislation and regulations relating to Section 106 has been misinterpreted. The phrase “eligible for inclusion in the NRHP,” they said, should be interpreted as “listed on the NRHP.”
If the courts had agreed, this would have spelled doom for Section 106 as it would have set a precedent that would have had an effect far beyond cell towers…eventually we would have been forced to only consider properties already listed on the NRHP as our standard…and only a very, very small percentages of important sites have already been listed on the NRHP.
Thankfully, the courts have ruled in favor of the FCC…we can all breath a sigh of relief, but you can bet that the telecom industry has plans to return to Congress to reform Section 106.
If you are interested, check out the Appeal Court’s decision here.