The question of the environmental impact of the construction or significant alteration of a communications tower has been a matter of controversy for quite some time. Three years ago, when conservation groups challenged the FCC’s procedures on the approval of towers and the consideration of the impact that such towers have on migratory birds, the US Court of Appeals ordered the FCC to include more public participation in the determination of whether those towers required detailed environmental studies ( an "environmental assessment" or an "EA") before they could be built. This week, the FCC sought comments on their Draft Environmental Notice Requirements and Interim Procedures for its Antenna Registration Program. These rules propose:
- That, before an Antenna Structure Registration ("ASR") is issued by the FCC, any applicant must first give public notice of the construction in a local newspaper or other local media source. The proposal will also be listed on the FCC’s website. These notices are to allow the public to comment on the proposal.
- If an EA is required, the FCC will process that assessment before the filing of the ASR
- An EA will preliminarily be required for all requests for an ASR for towers of more than 450 feet to determine its impact on migratory birds, though the FCC may modify this requirement after further study.
This proposal is somewhat tracks the proposed requirements for an EA that were set out in a settlement agreement between many affected parties, including conservation groups, the NAB and CTIA – an agreement about which we wrote here. That agreement, while conclusively requiring an EA for towers of over 450 feet, stated that towers between 351 and 450 feet would be dealt with on a case-by-case basis, and left open the question of whether an EA would be required for towers of 350 feet or less.
These requirements will apply not only to new tower construction, but also to construction that makes a "substantial increase in size" of the structure, which is defined in the FCC’s rules to look at not only height, but also a substantial increase in the width of the tower, or the area excavated around the base of the tower. Substantial changes in lighting of the tower – to lights that are "less preferred" under FAA guidelines, can also trigger these requirements.
The EA is a document that must be carefully prepared, providing information about the structure proposed, and its likely impact on the surrounding area. In connection with any impact on critical habitats, the analysis must rely on the best commercial and scientific information available to detail the potential impact of the project. This is routinely not something that an applicant can dash off on their own, but instead a study that requires expert assistance to prepare.
Comments on the draft proposal can be filed with the FCC for 30 days after this proposal is published in the Federal Register.