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Petition for Declaratory Relief and in Alternative Informal Request for Commission Action

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Petition for Declaratory Relief and in Alternative Informal Request for Commission Action Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) ) UINTAH BASIN ELECTRONIC ) TELECOMMUNICATIONS, LLC ) D/B/A STRATA NETWORKS ) ) To: The Commission PETITION FOR DECLARATORY RELIEF AND IN ALTERNATIVE INFORMAL REQUEST FOR COMMISSION ACTION NORTHWEST BAND OF SHOSHONE NATION SKULL VALLEY BAND OF GOSHUTE INDIANS Stephen Díaz Gavin RIMON, P.C. 1717 K Street, N.W., Suite 900 Washington, D.C. 20006 (202) 871-3772 [email protected] Their Counsel Dated: March 27, 2020 Summary Section 106 of the National Historic Preservation Act (“NHPA”) provides that Native American tribes be afforded the opportunity to be consulted regarding the means by which adverse effects on historic property will be considered before the construction of the undertaking.1 In the context of antenna towers and communications facilities, the Commission has made clear that applicants and licensees are required to assess whether certain proposed facilities may significantly affect the environment, as defined in Section 1.1307 of the Rules, specifically including construction that might disturb Native American religious sites. In re Sprint Corporation (Consent Decree), 33 FCC Rcd 3440 (Enforcement Bur. 2018). See also In re Nationwide Agreement Regarding the Section 106 [NHPA] Review Process (Section 106 Agreement), 20 FCC Rcd 1073 (2004). The D.C. Circuit of the U.S. Court of Appeals has only recently reiterated that the Commission has a binding legal duty under the NHPA to consider the impact of radio tower constructions on sites of historical, cultural and religious importance to the Native American tribes. United Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933 F.3d 728 (D.C. Cir. 2019). At no point since the enactment of the NHPA (in 1966) has the FCC not required historic-preservation review of wireless facilities. Id. at 736. Uintah Basin Electronic Telecommunications, LLC d/b/a Strata Networks (“Strata”), licensee of cellular radio station KNKN236, has constructed no fewer than five antenna tower sites without first submitting the towers to review pursuant to Section 106 of the NHPA. Strata through its agents has made a series of TCNS filings, which demonstrate that Strata constructed a series of antenna towers beginning in 2001 without submitting them to Section 106 review. 1 54 U.S. Code § 306102(b)(5). ii The Northwestern Band of the Shoshone Nation and the Skull Valley Band of Goshute Indians of Utah (collectively the “Tribes”), pursuant to Section 5(d) of the Administrative Procedures Act and Section 1.2 of the Commission’s Rules, request a Declaratory Ruling from the Commission that the radio antenna towers used by Strata for its cellular system have been constructed in violation of the National Historic Preservation Act (“NHPA”) and consequently should (a) be ordered to cease operation immediately, (b) be deenergized and (c) ordered to have their radio station antennas removed as a result of the violation of federal law. In the alternative, and pursuant to Section 1.41 of the Commission’s Rules, the Tribes request that the Commission investigate the facts and circumstances under which these towers were originally built and then determine whether it should order Strata immediately cease operating the radio facilities located on the towers and/or determine what remedial efforts can possibly be made so that the towers have been brought into compliance with the NHPA iii Table of Contents Item Page No. I. Background 2 II. Parties and Interest 4 Northwestern Band of Shoshone Nation 5 Skull Valley Band of Goshute 7 The Interest of the Tribes 9 III. The Strata Towers Were Constructed without Undergoing Section 106 10 Review IV. The Commission Must Follow its Own Rules and Sanction Strata for its 12 Failure to Comply with the NHPA iv Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) ) UINTAH BASIN ELECTRONIC ) TELECOMMUNICATIONS, LLC ) D/B/A STRATA NETWORKS ) ) To: The Commission PETITION FOR DECLARATORY RELIEF AND IN ALTERNATIVE INFORMAL REQUEST FOR COMMISSION ACTION THE NORTHWEST BAND OF SHOSHONE NATION (“Shoshone”) and THE SKULL VALLEY BAND OF GOSHUTE INDIANS (“Goshute”) (together Shoshone and Goshute the “Tribes”), through counsel and pursuant to Section 5(d) of the Administrative Procedures Act (“APA”)1 and Section 1.2(a) of the Commission’s Rules,2 hereby request a Declaratory Ruling from the Commission that the radio antenna towers used by the cellular radio facilities licensed to Uintah Basin Electronic Telecommunications, LLC d/b/a Strata Networks (“Strata”) have been constructed in violation of the National Historic Preservation Act (“NHPA”)3 and consequently should (a) be ordered to cease operation immediately, (b) be deenergized and (c) ordered to have their radio station antennas removed as a result of the violation of federal law. In the alternative, and pursuant to Section 1.41 of the Commission’s Rules4, the Tribes request that the Commission investigate the facts and circumstances under which these towers were originally built and then determine whether it should order Strata immediately cease operating the radio facilities located on the towers and/or determine what remedial 1 5 U.S.C. § 554(e). 2 47 C.F.R. § 1.2(a). 3 54 U.S.C. § 300101, et seq. 4 47 C.F.R. § 1.41. efforts can possibly be made so that the towers have been brought into compliance with the NHPA. In support whereof, the following is respectfully set forth.5 I. Background 1. Strata is the holder of cellular radio station license KNKN236 issued by the Commission. Strata has built and operates towers at least as far back in time as 2001 to provide service authorized by its license that were constructed without having undertaken its responsibilities under Section 106 of the NHPA, as listed in Exhibit 1 to this Petition. These towers cannot simply be dismissed as so-called “Twilight Towers” for which Strata and the Commission should not bear any responsibility6. The fact is that those towers were erected in violation of the NHPA. 2. Although in the Twilight Towers notice the Commission initiated a further proceeding to consider a Program Comment to address the issue of Twilight Towers, the Tribes note that nearly 2 ½ years later, the Program Comment has still not been finalized at the FCC itself, much less formally presented to the Advisory Council on Historic Preservation (“ACHP”). Indeed, like so much in WT Docket 17-79, the Commission’s proceeding is completely at a standstill. On August 9, 2019, the U.S. Court of Appeals for the D.C. Circuit vacated in principal part and remanded the Commission’s Second 5 The Tribes have previously filed a Petition to Deny the renewal of Strata’s license. See File No. 0008814164. The issues raised herein relate substantially to that Petition to Deny. Accordingly, this Petition should be associated with that file. 47 C.F.R. § 1.2(b). 6 The Tribes are aware that the Commission has proposed a draft Program Comment that would effectively result in “grandfathering” towers constructed in the period 2001-05 without demonstrating compliance with the NHPA. See Public Notice, “Comment Sought on Draft Program Comment for the Federal Communications Commission’s Review of Collocations on Certain Towers Constructed without Documentation of Section 106 Review” in WT Docket No. 17-79, 33 FCC Rcd 10715 (2017) (“Twilight Towers Notice”). Therein, the Commission noted that “FCC will not take enforcement action relating to the construction of Twilight Towers based on the failure to follow any particular method of considering historic preservation issues or otherwise based on the good faith deployment of Twilight Towers.” Id., at 10718. - 2 - Report and Order in WT Docket 17-79. See United Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933 F.3d 728 (D.C. Cir. 2019). More than seven months later, however, essentially nothing has happened in the proceeding, other than the Commission’s acknowledging, as directed by the vacatur of the Second Report and Order in WT Docket 17-79, that like all wireless undertakings, “deployments of small wireless facilities are subject to review to the same extent as larger wireless facilities pursuant to the [NHPA] and the National Environmental Policy Act of 1969.”7 Despite the vacatur and remand, the Commission has taken no further action to date.8 3. Thus, the present state of the law is clear: At the time of the Strata constructions, the Commission’s environmental rules did then and still require licensees and applicants to evaluate whether proposed facilities may affect historic properties under the NHPA. See 47 C.F.R. § 1.1307(a)(4). Thus, there should have been a determination made of the Strata sites under the NHPA prior to their initial construction. Strata failed to do so when they constructed the towers. 4. Section 106 of the NHPA provides that a federal agency “having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking … prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property.” A federal undertaking includes “a project, activity or program” that is “carried out by or on behalf of the Federal agency,” “carried out with Federal financial assistance,” or that requires “a Federal permit, license, or approval.” 54 U.S.C. § 300320(3); 36 C.F.R. § 16(y). In reviewing the NHPA, the courts have read this definition broadly, stating that “Congress intended to expand the definition of an 'undertaking'—formerly limited 7 In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (Order), 34 FCC Rcd 9366, 9367 (Wireless Tel. Bur. 2019). 8 47 U.S.C. § 402(h). - 3 - to federally funded or licensed projects—to include projects requiring a federal 'permit' or merely federal 'approval’”9 such as cellular telephone license.
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