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From: "Marty Tennant" marty@sccoast.net
To: 
Subject: Towers and Historic Properties
Date: Tue, 13 Apr 1999 10:15:26 -0400


Dear Friends,

I hope the historic protection law information I provide to Dale and Janet
is helpful to you in your efforts. (see below)

I am now actively soliciting information on other towers and proposed
towers that have been erected or proposed for erection without compliance
with the FCC rules regarding historic preservation.

I have reason to believe that this has happened on a regular basis all over
the nation.  The Advisory Council for Historic Preservation has indicated
to me that they know of situations similar to mine.

It is important to know that a historic property doesn't have to actually
be on the National Register of Historic Places before the environmental
assessment requirement is triggered.  If a property is eligible for
inclusion on the National Register, that is enough.  This calls into
question an even greater range of properties.  If you think a property
might be eligible, the State Historic Preservation Office becomes involved
to assist in the identification and nomination process.

As a result of my personal experience with non-compliance with three
historic properties in Georgetown County by the FCC and its wireless
licensees, I am considering launching a "Qui Tam" legal action.  Qui Tam
actions place the initiator in the role of a private U.S. Attorney General.
It is important that the largest universe of non-compliant tower
installations be known before this type of action is initiated.

I am asking everyone to become aware of the historic properties in your
area.  The link below will allow you to access the online version of the
National Register.  It is maintained by the National Park Service and
allows state/county and state searches.  If it gets broken in transit, just
go to www.nr.nps.gov and follow the links.

Online version of the National Register

After you identify existing or potential historic properties, ask yourself
if any existing or proposed towers have or might adversely affect these
properties.  The only way this is determined is for an environmental
assessment to be filed by the applicant, which probably was not done.  The
effect from the tower can be in the form of visible or atmospheric
influences. An undertaking is considered to have an adverse effect when the
effect on a historic property may diminish the integrity of the property's
location, design, setting, materials, workmanship, feeling, or association.
These are broad legal terms.

I would like to be the clearing house for this information and will share
it with the group.  Please communicate this information directly to me at
marty@sccoast.net.  I will be asking the Advisory Council on Historic
Preservation (ACHP) to investigate FCC actions on any towers on or near
historic properties brought to my attention.  The ACHP has statutory
authority to investigate the determinations made by any federal agency
under the Historic Preservation Act.  It gets interesting when towers have
gone up on or near historic properties and no environmental assessment has
been done.  I have a situation where the ACHP has asked the FCC for copies
of non-existent documents.  Guess what?  They have received no response
from the agency responsible for insuring our historic properties are
protected.

I look forward to hearing from as many people as possible.  Thank you in
advance for your interest and cooperation.

Marty Tennant
Georgetown, SC
843 527-4485



X-Sender: thistle@mail.sover.net
Date: Tue, 13 Apr 1999 09:13:13 -0400
To: 
From: "Marty Tennant"  (by way of Newtons at Fruitlands )
Subject: THIS IS A "MUST KEEP ON FILE". Tower Injuction


Marty - 
Thanks for the invaluable research on Historic Preservation compliance

                                                        Janet


Jennifer,

You should show these and other pertinent FCC and ACHP rules to the Judge.
Basically, if the tower is going near, on or within a historic district, or
might have an effect on a historic property or district, Omnipoint is
responsible for filing an environmental assessment (EA) and complying with
the National Historic Preservation Act.  The fact that it is going on a
water tower has no effect.  See below.  If this has not been done, you have
the basis for a temporary injunction.  Talk to your lawyer.

See FCC Rules at 47 CFR 1.1306 and 1.1307.  Also Advisory Council for
Historic Preservation rules at 36 CFR 800.  See below.

The State Historic Preservation Officer (SHPO) DOES NOT have the statutory
authority to make the required determination of effect.  This can only be
done by the federal agency (FCC).  Point this out to the Judge.  Make
Omnipoint file an EA,  make the FCC do a Section 106 review, put it out for
public notice, and then file a petition to deny.  This will stop them in
their tracks temporarily, long enough to get people ticked off enough to
make it a political issue.

I have been this route before and have a pending petition to deny before
the FCC.  They started work on the site before the Section 106 review was
done, just like in your case.  That was over a year ago and it is still
tied up at the FCC. I'd be glad to send an electronic copy of this PTD if
you wish.

Good luck.  Based on what I've read, the law has not been followed and your
state historic preservation agency thinks they can make determinations they
are not legally allowed to make.  Make sure you understand everyone's
responsibilities, and then make sure they follow them.

Marty Tennant
marty@sccoast.net

++++++++++++++++++++++++++++++

TITLE 47--CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION

PART 1--PRACTICE AND PROCEDURE--Table of Contents

Subpart I--Procedures Implementing the National Environmental Policy Act of
1969

Sec. 1.1307 Actions that may have a significant environmental effect, for
which Environmental Assessments (EAs) must be prepared. (a) Commission
actions with respect to the following types of facilities may significantly
affect the environment and thus require the preparation of EAs by the
applicant (see Secs. 1.1308 and 1.1311) and may require further Commission
environmental processing (see Secs. 1.1314, 1.1315 and 1.1317):

(4) Facilities that may affect districts, sites, buildings, structures or
objects, significant in American history, architecture, archeology,
engineering or culture, that are listed, or are eligible for listing, in
the National Register of Historic Places. (See 16 U.S.C. 470w(5); 36 CFR 60
and 800.) Note: The National Register is updated and re-published in the
Federal Register each year in February. To ascertain whether a proposal
affects a historical property of national significance, inquiries also may
be made to the appropriate State Historic Preservation Officer, see 16
U.S.C. 470a(b); 36 CFR parts 63 and 800.

++++++++++++++++++++++++++++++

36 CFR Part 800 (Section 106 Regulations)
SUBPART A BACKGROUND AND POLICY

800.1 Authorities, purposes, and participants. (a) Authorities.

Section 106 of the National Historic Preservation Act requires a Federal
agency head with jurisdiction over a Federal, federally assisted, or
federally licensed undertaking to take into account the effects of the
agency's undertaking on properties included in or eligible for the National
Register of Historic Places and, prior to approval of an undertaking, to
afford the Advisory Council on Historic Preservation a reasonable
opportunity to comment on the undertaking.

800.5 Assessing effects. (a) Applying the Criteria of Effect. In
consultation with the State Historic Preservation Officer, the Agency
Official shall apply the Criteria of Effect (800.9(a)) to historic
properties that may be affected, giving consideration to the views, if any,
of interested persons.

800.9 Criteria of effect and adverse effect. (a) An undertaking has an
effect on a historic property when the undertaking may alter
characteristics of the property that may qualify the property for inclusion
in the National Register. For the purpose of determining effect, alteration
to features of a property's location, setting, or use may be relevant
depending on a property's significant characteristics and should be
considered. (b) An undertaking is considered to have an adverse effect when
the effect on a historic property may diminish the integrity of the
property's location, design, setting, materials, workmanship, feeling, or
association. Adverse effects on historic properties include, but are not
limited to: (1) Physical destruction, damage, or alteration of all or part
of the property; (2) Isolation of the property from or alteration of the
character of the property's setting when that character contributes to the
property's qualification for the National Register; (3) Introduction of
visual, audible, or atmospheric elements that are out of character with the
property or alter its setting;

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