The FCC can apply Nationwide Programmatic Agreement (NPA) authority to wireless towers, the U.S. Appeals Court, D.C., ruled Tues. The case dealt with the FCC's power to regulate tower siting by wireless carriers under the National Historic Preservation Act (NHPA), and by extension, the National Environmental Protection Act (NEPA), as well as Commission deference to the Advisory Council on Historic Preservation created by Section 106 of NHPA. The court unanimously denied an appeal by the Cellular Telecommunications & Internet Assn. (CTIA), saying the association 揻ailed to explain how the FCC acted contrary to the law?by following Council recommendations and asserting its oversight. CTIA claimed in oral argument that the FCC can't apply NPA to wireless towers because 揻ederal undertakings?cited in the law don't include tower construction by private wireless carriers when they need no license and get no federal funding to build towers. CTIA also said the Council's reach on deciding which sites qualify as historic was, in the words of Gen. Counsel Mike Altschul, 搕otally open-ended... arbitrary and capricious.?br> nThe court sided with the FCC on both matters. It ruled that because the FCC has long reserved approval authority to ensure compliance with NEPA, the same authority must apply to compliance with sister law NHPA. Congress authorized the Council 搕o promulgate such rules and regulations as it deems necessary,?the court said, citing Andrus V. Sierra Club, in which the Supreme Court ruled that a similar council under NEPA was due 搒ubstantial deference?in environmental matters.
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