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.
The FCC then went on to analyze the applicant’s environmental certification. The certification was challenged by the owner of another local station – not on grounds that the site in fact posed any sort of environmental hazard, but instead simply because the applicant had not made all of the required contacts before certifying that the site was not one that would pose any hazard to the environment. In certifying that a site does not have a significant impact on the environment that required further study, the FCC’s Nationwide Programmatic Agreement requires that an applicant, before certifying, must assess if the site:
1. involves high intensity white lighting located in residential neighborhoods.
2. is located in an officially designated wilderness area or wildlife preserve.
3. threatens the existence or habitat of endangered species.
4. affects districts, sites, buildings, structures or objects significant in American history, architecture, archeology, engineering or culture that are listed in the National Register of Historic Places or are eligible for listing.
5. affects Indian religious sites.
6. is located in a floodplain.
7. requires construction that involved significant changes in surface features (e.g., wetland fill, deforestation or water diversion).
8. does not comply with the FCC established guidelines regarding exposure to PT electromagnetic fields as described in OFT Bulletin 65.
In this case, the applicant relied on its own inspection of these matters, and statements from employees of the Bureau of Land Management and the local zoning authority, who all said that they did not know of any issues with the sites. The FCC faulted the applicant for not having contacted the State Historic Preservation Officer ("SHPO") as required by the rules and not having contacted all Indian tribes that might be affected by the construction. While not specifically required, the FCC says that tribes are most easily contacted by use of its Tower Construction Notification System ("TCNS"), which was not used here before the certification was made. Finally, the Commission faulted the applicant for not having contacted the Fish and Wildlife Service (or for hiring its own biologist) to assess the threat that the tower posed to endangered species).
This decision makes very clear the steps broadcast applicants must go through before certifying that their sites do not constitute a possible threat to the environment that would require a more extensive environmental assessment. This application was tied up for years in this fight. Applicant’s wanting to avoid similar delays need to carefully observe the procedures required for environmental clearances before making any certifications in their FCC applications.