Ctia - Wireless Ass'n v. F.C.C.
| Decision Date | 26 September 2006 |
| Docket Number | No. 05-1008.,05-1008. |
| Citation | 466 F.3d 105 |
| Parties | CTIA—THE WIRELESS ASSOCIATION, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Donald B. Verrilli, Jr. argued the cause for petitioner. With him on the briefs were Ian H. Gershengorn and Michael F. Altschul.
C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were James C. Kilbourne and Todd S. Kim, Attorneys, U.S. Department of Justice, and Samuel L. Feder, General Counsel, Daniel M. Armstrong, Associate General Counsel, and Richard K. Welch, Counsel, Federal Communications Commission. Robert B. Nicholson and Robert J. Wiggers, Attorneys, U.S. Department of Justice, entered appearances.
Before: TATEL, GARLAND and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
CTIA-The Wireless Association ("CTIA") challenges an order of the Federal Communications Commission (1) determining that the construction of wireless communications towers is an "undertaking" subject to section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, and (2) deferring to a determination by the Advisory Council on Historic Preservation (the "Council") that section 106 protects not only those properties formally deemed eligible for listing in the National Register of Historic Places (the "Register"), but also those that simply meet the criteria for listing. Because we conclude the FCC did not err, we deny the petition for review.
Congress enacted the National Historic Preservation Act ("NHPA" or the "Act") in 1966 to "foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony." 16 U.S.C. § 470-1(1). Section 106 of the Act requires federal agencies to "take into account" the effects of their "undertaking[s]" on historic properties "included" or "eligible for inclusion" in the Register. Id. § 470f.1 In doing so the Act does "not require [a federal agency] to engage in any particular preservation activities; rather, Section 106 only requires that the [agency] consult the [State Historic Preservation Office] and the [Advisory Council on Historic Preservation] and consider the impacts of its undertaking." Davis v. Latschar, 202 F.3d 359, 370 (D.C.Cir.2000).
The Council is an independent agency created by the NHPA, with twenty members drawn from the public and private sectors and a professional staff trained in historic preservation. See 16 U.S.C. § 470i(a). The NHPA directs the Council "to promulgate such rules and regulations as it deems necessary to govern the implementation of [section 106] in its entirety." Id. § 470s. Using this authority, the Council created what it calls the "section 106 process"—a process that provides "how Federal agencies meet [their] statutory responsibilities" under section 106. 36 C.F.R. § 800.1(a). The section 106 process requires agencies to identify undertakings that might affect historic properties, id. § 800.3, identify potentially affected historic properties, id. § 800.4, assess the potential adverse effects of their actions on those properties, id. § 800.5, and seek ways to "avoid, minimize or mitigate" those effects, id. §§ 800.1, 800.6. Agencies "must complete the section 106 process prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license." Id. § 800.1(c) (quotation marks omitted).
As an alternative, the Council's regulations provide that agencies "may develop procedures to implement section 106 and substitute them [for the standard section 106 process] ... if they are consistent with the Council's regulations," id. § 800.14(a), a determination the Council itself makes, id. § 800.14(a)(2). Agencies and the Council may also "negotiate a programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings." Id. § 800.14(b). Such programmatic agreements are frequently used for undertakings whose effects are "similar or repetitive" or "cannot be fully determined prior to approval" of the undertaking. Id. § 800.14(b)(1).
Negotiation of a programmatic agreement requires "consultation ... as appropriate" with "[State or Tribal Historic Preservation Offices ("SHPOs" or "THPOs")], the National Conference of State Historic Preservation Officers ("NCSHPO"), Indian tribes and Native Hawaiian organizations, other Federal agencies, and members of the public." Id. § 800.14(b)(2)(I). Programmatic agreements "take effect when executed by the Council, the agency official and the appropriate SHPOs/THPOs when the programmatic agreement concerns a specific region or the president of NCSHPO when NCSHPO has participated in the consultation." Id. § 800.14(b)(2)(iii). A programmatic agreement binds the agency and "satisfies the agency's section 106 responsibilities for all individual undertakings of the program covered by the agreement until it expires or is terminated by the agency." Id. After being executed by the parties, the agreement has no legal force, however, until after the agency has provided public notice of its terms and allowed for public comment. Id. § 800.14(b)(2)(iv). Only then may the agency issue an order that makes the terms of the agreement binding.
This case involves a programmatic agreement negotiated by the Federal Communications Commission ("FCC" or "Commission"), the Council, and the NCSHPO regarding wireless communications towers. Prior to execution of this agreement, wireless communication tower construction was subject to the standard section 106 process established by the Council. In August 2000, the FCC convened a working group to develop a programmatic agreement for wireless communications towers. This working group included the FCC, the Council, representatives of the wireless communications industry (including CTIA), and individuals and organizations from the historic preservation community. By June 2003, the working group had drafted a Nationwide Programmatic Agreement ("NPA") regarding tower construction. The NPA
[a]dopt[ed] categories of undertakings that are excluded from the Section 106 process ... [;][o]utline[d] procedures regarding public participation; [and][a]dopt[ed] procedures regarding the identification and evaluation of historic properties and the assessment of effects, including: (1) guidelines for establishing the area of potential effects, (2) streamlined procedures for identifying potentially eligible properties for purposes of the Nationwide Agreement, (3) standards governing the conduct of archeological surveys, (4) a definition of visual adverse effects, and (5) standards for the use of qualified experts.
Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, 20 F.C.C.R. 1073, 1075 ¶ 2, 2004 WL 2248768 (2004) (the "NPA Order"). The NPA also "[e]stablish[ed] procedures for SHPO/THPO and Commission review" of proposed tower construction. Id.
After the NPA was drafted, the FCC issued a notice of proposed rulemaking seeking public comment on the proposed agreement and a draft amendment to its regulations that would incorporate the NPA into the Commission's rules. See Notice of Proposed Rulemaking, Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, 18 F.C.C.R. 11664, 2003 WL 21308908 (2003) ("Notice of Proposed Rulemaking" or "NPRM") (proposing to amend 47 C.F.R. § 1.1307(a)(4)). On January 4, 2005, following the notice and comment period, the FCC issued the NPA Order, in which the FCC adopted its proposed changes. See NPA Order, 20 F.C.C.R. at 1074 ¶ 1. In the NPA Order, the FCC concluded that construction of a wireless communications tower constitutes an "undertaking" subject to section 106 of the NHPA. Id. at 1082-84 ¶¶ 24-28. In addition, the FCC deferred to the Council's interpretation of the term "eligible for inclusion" as including properties formally determined eligible for listing on the Register and properties that meet the criteria for listing but have not yet received a formal determination. Id. at 1117 ¶ 121. CTIA filed a petition for review challenging those two aspects of the NPA Order and invoking this Court's jurisdiction under 47 U.S.C. § 402(a) and 28 U.S.C. §§ 2342, 2344.
Even where the "parties assure us that we have jurisdiction over [a] case, we have an independent obligation to be certain." Midwest Indep. Transmission Sys. Operator, Inc. v. FERC, 388 F.3d 903, 908 (D.C.Cir.2004) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Section 2344 of Title 28, United States Code, allows "[a]ny party aggrieved by the [FCC's] final order within 60 days after its entry" to "file a petition to review," with respect to "a final order reviewable under this chapter." Id. Although neither CTIA nor the FCC challenged our jurisdiction in their briefs, we questioned at oral argument whether CTIA's petition for review was timely with respect to one of its challenges.
CTIA filed its petition for review within 60 days of the FCC's final order implementing the Nationwide Programmatic Agreement, and seeks to challenge two independent grounds set forth in the NPA Order in support of the FCC's conclusion that tower construction is a federal undertaking subject to the NHPA. As we discuss more fully in Section III, first, the NPA Order determined that tower construction constitutes a "federal undertaking" under section 106 because of the FCC's registration process, through which the Commission "may assure, prior to construction, that towers do not pose a risk to air safety," 20 F.C.C.R. at 1084 ¶ 27. Second, the NPA Order...
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