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.