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
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…
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.
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.
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…