RECENT FEDERAL DECISIONS

December 2006

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D.C. Circuit Lets Stand Order of the FCC, Finding Construction of Wireless Towers Constitutes an “Undertaking” Subject to National Historic Preservation Act
CTIA—The Wireless Association v. Federal Communications Commission, ___F.3d___

On September 26, 2006, the United States Court of Appeal for the District of Columbia Circuit denied plaintiff CTIA’s (CTIA) petition for review of a nationwide programmatic agreement order issued by the Federal Communications Commission (FCC). The court found that the FCC did not err in determining that the construction of wireless communications towers is an “undertaking” subject to § 106 of the National Historic Preservation Act (NHPA). The court further found that the FCC did not act contrary to law in deferring to the Advisory Council on Historic Preservation’s (council) determination that § 106 protects not only those properties formally deemed eligible for listing in the National Register of Historic Places (register), but also those that simply meet the criteria for listing.