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With the recent publication in the Federal Register, several new Commission rules and policies regarding communications towers and migratory birds are now on the books, however, they are not yet effective as the collection of information still requires OMB approval.  The Commission's new rules are an outgrowth of a decision from the Court of Appeals in 2008 in which the court found the FCC's tower registration procedures to be inadequate.  In its Order on Remand released December 9, 2011, the Commission revised its rules governing the review and registration of proposed broadcast and communications towers to provide greater opportunity for comment by the public and interested parties. In addition, while this Order does not resolve the ongoing FCC rule making regarding the impact of towers on migratory birds it does adopt interim policies regarding certain tower proposals.  The Commission's new rules require the following:

• Prior to the filing of an antenna structure registration for a new tower or antenna structure, members of the public must be given an opportunity to comment on the potential environmental effects of a proposal.  Thus, an applicant for a new tower that requires antenna structure registration, or a modification of a registered tower that would have a significant environmental impact, must initially submit a partially completed tower registration form (Form 854) and give local notice of the proposed tower through a local newspaper or local zoning public notice process.  After local notice has been provided, the FCC will post the partially completed registration form on its tower website for 30 days notice.  Members of the public may then file comments or to request further environmental review of the proposed tower.  The FCC staff will consider any comments received from the public to determine whether an Environmental Assessment is required for the tower. Notably, this additional period for public review and comment will be required for all towers requiring registration in the FCC's ASR database, even if the applicant has determined that the proposed tower will not have a significant environmental impact and that a complete Environmental Assessment is not required.

• Environmental notice will also be required if an applicant seeking to register an antenna structure changes the lighting of an existing tower to a less preferred lighting style.

• Proposed towers that require an Environmental Assessment must file such assessments with the antenna structure registration application and the Environmental Assessment will be considered in the context of the tower registration, rather than considered with a service-specific license or permit application.  Previously, some environmental assessments were filed with the license application and considered by the FCC Bureau issuing the service license or permit (for example, by the Media Bureau as it issued a radio or television station construction permit.) 

• Institute an interim procedural requirement that an Environmental Assessment must be filed for all proposed registered towers over 450 feet in height.  FCC staff will review the Assessment to determine whether the tower will have a significant environmental impact. This processing requirement is an interim measure pending completion of the ongoing programmatic environmental analysis of the FCC's antenna structure registration program to determine what changes, if any, are necessary to consider the impact of towers and tower lighting on migratory birds.

Once OMB approval is received for the collection of information required by these new rules, the FCC's Wireless Telecommunications Bureau will issue a further Public Notice establishing the date on which these new environmental notification requirements will become effective.  According to the Order, antenna structure registration applications that are pending on the effective date ordinarily will not be required to complete the new environmental notification process.  Given the new requirements for public notice and the ability for interested parties to file comments electronically through the FCC's tower registration database, these additional procedures will add add more time to the process of proposing and building a new broadcast or communications tower.  Stations or parties interested in building new towers are advised to review the Commission's new procedures carefully and plan on additional lead time when considering new construction.  

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The FCC has released the comment dates for its draft rules setting out when Environmental Assessments are needed to formally evaluate the environmental impact of the construction and major alteration of communications towers.  We wrote about these draft rules here, and described their history -  growing out of concerns by conservation groups about the effects of communications towers on migratory birds.  Comments on the Commission's Draft rules are due on May 5. 

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The FCC today announced that it will be holding a series of three hearings to assess the environmental impact of its Antenna Structure Registration (ASR) program.  The FCC is required by the National Environmental Policy Act ("NEPA") to determine if its programs have any adverse environmental impact.  In a Court decision in 2008, the US Court of Appeals determined that the FCC had not adequately assessed its obligations under NEPA with respect to the impact of communications towers on birds after there were claims that towers killed millions of birds each year.  The hearings are to review the Commission's ASR process to gather evidence to determine whether a more extensive analysis of the potential environmental impact of tower construction is necessary when towers are constructed or modified.  In addition to the hearing, the FCC is soliciting written public comment on these proceedings. 

After the Court decision, American Bird Conservancy v. FCC, parties representing those involved in tower construction and conservation groups engaged in a series of discussions to attempt to resolve issues raised in the case.  The parties included the NAB, CTIA, PCIA, and the National Association of Tower Erectors.  Conservation groups included the American Bird Conservancy, Defenders of Wildlife, and The National Audubon Society.  These parties reached an agreement that was submitted to the FCC, setting out three levels of environmental review of tower construction, based on the height of the tower proposed.  As summarized below, the height of a proposed tower would determine if the proposal for construction had to be placed on a Public Notice by the FCC, soliciting public comment about the proposed construction, and whether the tower would need to have an Environmental Assessment ("EA") completed before it was constructed (an EA is a more extensive analysis of the environmental impact of planned construction than the Environmental Impact Statements that most broadcasters include with their current FCC applications).  The parties suggested the following:

• For New Towers above 450 feet above ground, an Environmental Assessment would need to be conducted, and any proposal would be put on a public notice to solicit public comment
• For New Towers between 351 and 450 feet, the proposal would be put on a public notice by the FCC and, after comments are filed, the FCC would decide on a case-by-case basis if an Environmental Assessment is necessary
• For New Towers 350 or less, the parties could not agree as to whether Public Notice would be required.  Resolution of whether Public Notice was required was left to the FCC. 

This proposal has not been adopted by the FCC, so it will no doubt be addressed as part of these hearings. 

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A recent FCC decision shows how important it is for an applicant for a construction permit for a new or modified broadcast station, which entails the construction of a new tower, to take all steps set out on the the environmental worksheets associated with FCC Form 301 before certifying that the tower will not create environmental issues.  In the recent case, the FCC did not find that any actual environmental issues existed with the applicant's proposed construction of a new tower, but it nevertheless stated that it would have fined the applicant for a false certification if the statute of limitations for the fine had not passed.  Why?  Simply because the applicant had not touched all of the required bases before making its certification that the tower construction posed no threat to the environment.  The applicant had tried to argue that no environmental study was necessary as the site was a de facto tower farm given that there were already two towers nearby, but that claim was rejected by the FCC, finding that nearby towers do not necessarily constitute a tower farm.

The tower farm issue was interesting in that the applicant pointed to the fact that there were two existing towers within a couple hundred feet of his proposed tower, and thus the existence of these towers, plus the word that he received from local authorities that the site was a good one at which to build a site due to the lack of any perceived impacts, was not sufficient either to make the site a "tower farm" exempt from further environmental processing, nor was it sufficient to demonstrate that there was no need for further environmental study.  The FCC's staff did a thorough review of the cases about what constitutes a tower farm and, while noting that there was no clear definition in the rules, found that the two nearby towers, as they were substantially shorter than the one proposed by the applicant, were not of the same "character" as that proposed by the applicant, and thus the site was not a tower farm.  Apparently, to some degree, the FCC adopted a "we'll know it when we see it" approach to the definition of a tower farm, and concluded that they did not see it here.

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In a Consent Decree released this week, the Commission agreed to accept a "voluntary contribution" of $16,500 to the government from a tower owner, instead of a fine, for its failure to conduct an Historical Review of the locations of three towers prior to their construction.  Under the Nationwide Programmatic Agreement which implements the National Historic Preservation Act, the construction of most new towers (essentially unless they are in Industrial zones, areas already cleared by a review, in a utility corridor or replace existing towers), require that the owners coordinate with State or Tribal Historical Preservation Officers ("SHPO" or "THPO") to assure that the new construction will not have an adverse effect on any historic site listed on or eligible for listing on the National Register of Historic Places.  The burden is on the tower owner to make sure that the rules for such a review are followed, with the FCC having the power to take action against any applicant who does not conduct such a review.  A full description of the requirements of the Programmatic Agreement can be found on the FCC's website, here.

This decision demonstrates how seriously the Commission takes these requirements.  In this case, the tower owner realized that it had constructed the tower without having done the proper review, conducted that review, found that there was no impact on any historic location, and voluntarily reported its failure to the FCC.  Nevertheless, the Commission agreed to the fine, plus a requirement that the tower owner appoint a compliance officer and submit reports to the FCC of its compliance with the environmental laws for a period of two years.  Constructing a tower?  Make sure that you conduct the proper studies.

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