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.


Continue Reading When are a Bunch of Towers Really a Tower Farm – Only the FCC Knows for Sure

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