D.C. APPEALS COURT MULLS IF FCC HAS AUTHORITY TO ADOPT NPA

摘要

The U.S. Appeals Court, D.C. judges questioned their jurisdiction to act in a Cellular Telecom & Internet Assn. (CTIA) challenge of the Nationwide Programmatic Agreement (NPA) on communication tower siting, while the court also mulled whether FCC had the authority to adopt the NPA. The court has jurisdiction in CTIA v. FCC (05-1008) only if the FCC’s 2004 order constituted “reopening” the case. Judges Merrick Garland and David Tatel told CTIA and FCC to file supplemental briefs addressing the question within 5 days. Also on the court panel was Judge Thomas Griffith. More fundamental is the question whether the Commission had authority to impose National Historic Preservation Act (NHPA) compliance requirements on tower construction.nnThe case goes back to Sept. 2004 when the FCC adopted the NPA, with Comr. Kathleen Abernathy and then-Comr. Kevin Martin dissenting. The 2 said the agency didn’t have legal authority to adopt the NPA under Sec. 106 of NHPA. CTIA appealed the order in Jan. 2005, arguing the FCC erred in concluding that construction of wireless towers by private wireless carriers was a “federal or federally assisted undertaking” under NHPA Sec. 106. The law applies only to “federal or federally assisted undertakings,” said Donald Verrilli, an attorney representing CTIA in oral argument Thurs. That means NHPA doesn’t apply to tower construction, since the FCC doesn’t fund it and wireless carriers don’t need a license or other FCC approval to build towers, he said. But FCC attorney Grey Pash said because a license the FCC issues to provide service in a place includes a condition for a carrier to comply with the Commission’s rules carrying out NHPA, the whole process is a federal undertaking.