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The FCC & Section 106 Review

Section 106 of the National Historic Preservation Act of 1966 requires the Federal Communications Commission (FCC) to take into account the effects of its proposed undertakings on historic properties. These undertakings typically include projects, activities, or programs that require a permit, a license, or approval from the FCC. The regulations that implement Section 106 (36 CFR Part 800) require the FCC to consult with the State Historic Preservation Officer (SHPO).

Section 106 consultation for FCC undertakings takes place under one of two nationwide programmatic agreements that have been negotiated and executed according to a process set out in the Part 800 regulation. The 2001 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas  (Collocation PA) provides for the exemption of particular types of antennae collocations from Section 106 review.

The 2004 Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission  (Nationwide PA) is a more broadly applicable agreement that streamlines the Section 106 review of FCC actions that are not exempt under the Collocation PA.

The FCC delegates its authority to initiate and conduct Section 106 consultation to its applicants. The applicants may, in turn, use the services of a consultant to perform the more routine tasks in the consultation process such as scoping information needs and gathering requisite information. While the Nationwide PA permits the FCC to delegate its authority in this manner, the FCC retains ultimate legal responsibility for the veracity of the determinations and findings that its applicants make while complying with the Section 106 process set forth in the Nationwide PA.

To initiate a Section 106 consultation, the applicant prepares and transmits a submission packet to the SHPO. The FCC provides guidance for preparation of the packet, Learning Interactive Unit: Nationwide Programmatic Agreement, and the Office of Historic Preservation provides the SHPO’s evolving interpretation of the 2004 Nationwide PA and useful links related to working with the new PA in FAQs -  FCC Nationwide PA .

Note: Complying with Section 106 of the NHPA is a statutory obligation that is separate and distinct from complying with the National Environmental Policy Act (NEPA).