FCC OK’s Two-For-One Tower Deal That Took Nine Years

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The FCC approved Eger Communications’ request to replace two guyed towers with one self-supported lattice tower in Livingston, NY. The decision, which took nine years, was not without controversy, as several local historic preservation groups opposed the build.

The process began in 2010, when Eger filed an application with the town of Livingston to replace both 190-foot towers with one of the same height. 

The site is visible from the Olana House State Historic Site, a National Historic Landmark. The Olana Site includes the home of Frederic E. Church, an important figure in the Hudson River School of American landscape painting. 

In 2013, considering pleadings from parties arguing that the new tower would have adverse impacts on historic properties, the town granted Eger’s application. The Olana Partnership and Scenic Hudson, Inc. challenged the town’s decision before the New York State Supreme Court, asserting that Livingston had not properly considered the proposed tower’s visual impact on the viewshed of the Olana Site. The NY State Court dismissed that challenge, finding the town’s decision was supported by substantial evidence.  

While the local approval process was playing out, several parties raised historic preservation concerns before the FCC. The Olana Partnership, Scenic Hudson, the National Park Service, and the New York State Historic Preservation Office asked to participate in the Section 106 review of Eger’s proposed tower.

To implement the National Historic Preservation Act (NHPA), the Commission requires parties that want to construct certain communications towers to first determine whether construction may affect properties listed or eligible for listing, in the National Register of Historic Places by conducting a “Section 106 review.” Eger argued the proposed tower was excluded from such review because the replacement would be the same size as the current tower.

Addressing the local complaint, the Competition and Infrastructure Policy Division of the FCC’s Wireless Telecommunications Bureau, found the specific circumstances of this case made Section 106 review necessary under the NHPA. Eger appealed, reiterating the proposed tower was a replacement tower and excluded from the review. 

Eger also contended it would serve the public interest to grant the petition, because the new tower would support additional antennas needed to upgrade public safety communications systems in the region. A number of public safety entities told the FCC they support Eger, and discussed their need to co-locate antennas on the structure.

In a decision reached by the full Commission, it rejected Olana/Scenic Hudson’s contention that the proposed tower is not a replacement. Eger’s proposal calls for constructing the new tower, relocating antennas from the old towers to the new one, and then removing the old towers. The new tower, “will also include appurtenances—antennas and microwave dishes—but these will be the same as or similar to those on the existing towers,” said the agency in its decision. Olana/Scenic Hudson allege the new tower will have the “potential” to support larger antenna and other large equipment, but have not claimed that such structures actually will be added, according to the FCC.

The FCC agreed with the town’s decision concerning the view, noting the town said:“’the proposed tower would be one of many twentieth and twenty-first century additions to the Olana viewshed…’ including three radio towers with blinking lights that are taller than the proposed tower and much closer to Olana.”

The support of local public safety organizations helped sway the agency’s decision. They said the current towers are inadequate to support new antennas needed for an upgrade, and eight new whip antennas would be added to the proposed tower, to support county and local public safety radio communications.

The FCC said requiring an additional historic review based on allegations that were previously raised before the NY State Court is not needed and would unnecessarily delay the deployment of critical public safety communications in the affected communities. The Commission agreed with Eger that the new structure is a replacement tower, granted its application, and said Eger can now begin construction.

June 27, 2019        

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