Citizen Group Asks County Commission to Act on Controversial Cell Tower’s Apparent Non-Compliance

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The status of a proposed cellular tower on the west edge of the city of Memphis was the topic of discussion of a special meeting of concerned citizens addressing the Scotland County Commission on May 13th.

Local attorney, Kevin Brown, led a group of concerned citizens who were on hand to learn of the County Commission’s awareness regarding the current status of the proposed tower project.  At the meeting, Brown indicated that a local property owner had contacted the group after he had “stumbled” across new information regarding the tower project’s pending application with the Federal Communications Commission (FCC).  Brown questioned whether the County Commission was aware of the update.

“Basically, this individual found an obscure link, virtually hidden in one corner of the FCC’s ASR (Antenna Structure Registration) website,” said Brown, a Memphis resident whose home is located near the site of the proposed 300-foot metal lattice structure. Brown explained that this link opened a letter, dated February 7th of this year, addressed from the tower project applicant, Wireless Investment Partnership, LLC, to the FCC.  “Apparently, the tower applicant failed to notify any of the other local parties who have expressed an interest in this project, and we are here to see whether they provided any notice to the County.”

The County Commissioners stated they had not received any correspondence concerning the applicant, Wireless Investment Partnership, LLC, since receiving an e-mail from the Missouri State Historic Preservation Office (SHPO) on December 5th, 2019, rescinding the SHPO’s previous determination that the proposed tower project would have “no adverse effect” on any local historic properties.  The County Commission indicated that the applicant had not responded to their November 2019 letter asserting their status as an official consulting party in the application process – a status which appears to be mandated by federal law.  The Commissioners further stated that a follow-up letter, sent in April of this year, had also not received any response from Wireless Investment Partnership, LLC.

Brown noted that, unfortunately, there is no longer any direct governmental oversight to ensure that due process is followed in developing these types of projects.  “The FCC and the ACHP (Advisory Council on Historic Preservation) succumbed to political and industrial pressures to expedite the process of approving construction of these communications towers in response to the huge nationwide demand for increased services.  In their infinite wisdom, the governmental bodies tasked with protecting citizens and property from unscrupulous or unfair acts and practices have delegated their oversight responsibilities to the applicants themselves,” Brown lamented.  “They have put the fox in charge of guarding the chicken coop.”

Brown explained that the desire to expedite these projects led to the creation and implementation of the 2004 National Programmatic Agreement (NPA), an arrangement made between the federal regulatory agencies and industry officials.  Under the NPA, which has the power of federal law, the responsibility for determining what local organizations and individuals are allowed to consult on a proposed federal undertaking was delegated to the applicant.

In an e-mail communication, dated September 26, 2019, the FCC had ordered Wireless Investment Partnership, LLC, to go back and remedy several “deficiencies” it had found in the applicant’s failure to meet its obligations under the NPA.  Citing a 6-page letter it had received from Mr. Brown in May of 2019, the FCC identified several due process violations which, for all practical purposes, had denied the local community any involvement with regard to how or where the proposed tower project was to be constructed.

 “Since last September, when the FCC forced [the applicant] to start the public notice process over again, this community has sent Wireless Investment Partnership a total of 65 letters from concerned citizens and at least seven written requests to be considered a consulting party in this process,” Brown stated.  “To our knowledge, not one of these people have been afforded the dignity of a response.”  According to Brown, this lack of communication is especially concerning, given the County Commission’s November 2019 letter asserting consulting party status.  “The NPA contains provisions which expressly entitle the local government, here this means the County Commission, to be a consulting party in the Section 106 review of this undertaking.”

Brown further explained that, as a consulting party under the NPA, the County Commission was entitled to receive notices, copies of submission packets, correspondence and other documents provided to the SHPO in their review of the proposed tower project. Additionally, the NPA gives the County Commission the right to take an active role in providing input to be considered in any determination made by the applicant and the SHPO.  “These are rights provided by law,” Brown commented, “yet it seems they are ignoring this.”

“We are dealing with an already abbreviated process,” stated Brent Walker, whose residential property adjoins the proposed project site.  “There are rules that are supposed to be followed that are meant to protect the public and it definitely appears that they are not adhering to it.”  Expressing his frustration, Walker commented, “it certainly feels like the community’s concerns are being ignored.  It is very upsetting that these people continue to thumb their noses at us and our elected officials and appear to be simply ignoring the legal requirements of this process.”

Walker indicated that he had visited with several contractors who had come onto his property in an apparent build up to looming construction of the tower. “They have marked the street for utilities and other underground obstacles and are making preparations with NEMR Telecom to connect to fiber optics lines,” said Walker.  “One of the contractors told me they have plans to be up and transmitting by July 31st.”

The February 7th letter from Wireless Investment Partnership, LLC, posted in the FCC ASR online portal, indicates that the company believes it has corrected the deficiencies in its initial application, as identified by the FCC in September 2019.  A portion of the process violations, identified in Brown’s May 2019 letter to the FCC, had revolved around unidentified historical properties which might be impacted by the proposed tower construction.  Brown indicated that the initial review by the SHPO, back in August of 2019, had not included nearly 50 historical properties located within the area impacted by the tower project.  “In October of last year, our group sent the applicant and the SHPO a 150-page packet identifying each of the historic properties previously determined by the SHPO as being eligible for registration on the National Register of Historic Properties,” said Brown.  The packet included maps showing each property’s location in relation to the proposed site, as well as a detailed description of each property and photographs.

On December 5th, 2019, in response to this additional information, the SHPO rescinded its previous determination that the tower project would not adversely affect any of the area’s historic properties.  However, according to the applicant’s February letter to the FCC, on December 16, 2019, the company resubmitted its Cultural Resource report with a new assessment of the additional historical properties and, on January 13th of this year, the SHPO issued its determination finding “no effect” on any historic properties.  No notice of the applicant’s resubmission or of the SHPO’s subsequent finding was provided to any of the persons, organizations, or governmental bodies that had requested to be consulted on the project and the County Commission was never consulted on the issue prior to either event.

“It is sad that so many people put so much time and effort into identifying these historical properties for the SHPO, a state agency that is supposed to already be doing that task itself,” said Brown. “And then to have that same agency, that we dutifully support with our hard-earned tax dollars, and whose sole duty it is to protect and preserve these treasures, apparently just rubber stamp the application of a non-local company, is appalling and offensive.”

After speaking with an SHPO official familiar with agency’s review of the applicant’s report, Brown stated, “It appears the SHPO applied the policy that ‘if you can’t see the base of the tower from the historic property, then there’s no adverse impact.’  So by that logic, if 275 feet of the more than 300 foot structure would be visibly looming over the historic structure, then according to the SHPO, there’s no direct visual impact to the property.  That is absurd on its face and should be upsetting to every taxpayer in this County.”

The February 7th letter from Wireless Investment Partnership to the FCC highlighted the proposed tower as being developed for the FirstNet Network, stating that the “site location was selected to support the system and design requirement of this Network” and requesting the FCC’s review “be prioritized due to the critical status of this site as an integral part of the First Responder National system for public safety.”  Brown informed the County officials that he had contacted FirstNet’s national and state representatives.  “The service that FirstNet is providing is an important one, deserving of support,” Brown said. “However, their representative indicated that, outside of basic coverage requirements, FirstNet absolutely does not have any preference as to where any particular tower is located.  As their service is not specific to any one tower location, the applicant’s letter seems disingenuous in representing that this particular site is needed by the FirstNet Network.”

“Our research has indicated that reputable tower construction companies try to involve everyone and they listen to the communities they hope to serve with their towers,” Walker told the commissioners.  “Good tower companies look for ways to work with the community.”

“We have tried to make it very clear,” said Walker, “we are not opposed to the technology and we are not trying to scare off companies from placing towers in our community.  We are simply asking that everyone use a little common sense about where these towers are being built and to work with communities on finding better, safer options.”

“The NPA requires our community to rely upon the Scotland County Commission to be our voice in this process,” Brown stated. “Although 6 other groups, including the City of Memphis and the County Historical Society, have requested consulting party status on this proposed tower project, the County Commission is the only authority that is guaranteed such status by law.  More than 200 taxpayers have requested that the County take action on this issue.  At a certain point, we can only do so much and we need the County to step into that leadership role.”

Ultimately, the County Commission agreed to communicate with the FCC through a letter addressing these issues.