CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

The new rules and procedures are designed: (a) to address the Court’s finding that the Commission’s existing ASR approval process fails to provide an opportunity for public comment; and (b) to implement certain provisions of a private compromise agreement reached last year by a number of tower-related and environmental groups.  (We reported on that agreement here.) Comments on the proposed rules are due by May 5, 2011. (There will be no opportunity to file reply comments.)

Under the proposed rules, obtaining approval to construct any new tower subject to registration in the ASR system would become more complicated, particularly for towers over 450 feet. (Most towers up to 200 feet tall and not in the glide slope of an airport can be built without an ASR. While the public notice does not say so expressly, we understand from folks close to the FCC process that the new rules are not intended to change this important exception. Let’s hope that holds true.)

The proposed new rules would require a period for public comment on any new tower construction or major modification requiring ASR before a formal proposal for the construction/modification is filed with the FCC. After the comment period, the FCC would determine whether an Environmental Assessment (EA) is required before approving the tower. At least until the Commission completes its own PEA of the entire ASR program, individual EAs will automatically be required for any proposed tower or modification over 450 feet.

According to the public notice, anyone intending to register a new or substantially changed tower subject to ASR requirements would commence the process by providing the Commission with the details of the construction which the proponent intends to propose. The public notice doesn’t say exactly how the information is to be submitted – by letter, electronically, some other way. It does suggest that proponents might file a “partially completed” Form 854 ASR form. Not fully completed, mind you – just partially.

The information to be submitted must include, “at a minimum,” all of the information required by Form 854 relative to ownership and contact information, geographic location, height, type of structure, and anticipated lighting.   (You may want to take a look at Form 854. Since you’re going to end up having to file a full Form 854 eventually, we’re not sure why it wouldn’t be easier to just require applicants to file the form to begin with. But that’s what the public notice says.)

So prospective tower proponents don’t file a complete Form 854 ASR application. Instead, they’re supposed to file the information they would have filed on Form 854 if they could have filed such a form. They must also provide local public notice of the to-be-proposed tower construction, either in a local newspaper or through “other appropriate means.” This local notice must provide the details of the to-be-proposed construction as well as instructions on how to file comments about it with the Commission.

Meanwhile, using the information submitted to it, the Commission will post on its website a national notice of the to-be-proposed tower construction. That national notice will include the information filed by the prospective proponent, together with the date of the local public notice. If the prospective proponent has already determined that the tower requires an EA (based on the Commission’s existing rules, or the presumption associated with 450-foot-plus towers), that EA is also to be submitted to the FCC at this time.

The proposed rules don’t make any promises about when the national notice will appear on the FCC’s website – only that it will be “on or after” the date of the local public notice. Once the national notice does appear, interested parties will have 30 days to file a “Request for Environmental Processing” asking the Commission to require the prospective applicant to prepare an EA. Any party making such a request would have to explain why the to-be-proposed construction would have such a significant environmental impact that an EA should be required (or, if an EA has already been submitted, why that EA doesn’t do the trick). The prospective tower proponent would then have ten days to oppose the Request, and the requestor an additional five days to reply.

Once the pleading cycle has ended, the FCC will determine whether an EA is required; if an EA was submitted initially, the Commission will evaluate it and determine whether the to-be-proposed tower will have a significant environmental impact. If the Commission determines that it will not have such an impact (either after evaluating an EA or determining that none is required), it will advise the prospective proponent, who can than finally file the ASR Form 854.

Let’s review the bidding.

You decide that you want to build or modify a tower structure that would require registration. Before you can file for that registration, you have to tell the FCC, and the rest of the world, what you have in mind. And you invite the rest of the world to chip in their two cents’ worth on your idea. Then you wait for the FCC to give everything the once-over. And only if, after all that, the FCC decides that your idea won’t be a problem, you can proceed to file the necessary applications.

To be sure, the proposed rules do provide for filing service-specific applications before antenna registration has been granted (as has historically been the case). But under the proposed rules, service-specific applications could be filed only after the local and national public notices have been provided and the full Form 854 ASR has been filed. And the full Form 854 can’t be filed until after the Commission has determined whether an EA will be required and, if an EA is required, after the FCC has considered it – and we have no idea how long that will take. So it’s not at all clear when exactly a service-specific application can be filed. This could wreak havoc on applications that are time-sensitive or that would attempt to take advantage of the Commission’s first-in-time interference protection and processing rules.

Of course, the creation of delay in the FCC’s processes is not an accident here – rather, it’s one of the goals of the birders. For years the avian advocates have complained that the FCC’s processes do not afford them adequate opportunity to review new/modified tower proposals and interpose objections before those proposals are realized. The 2008 court decision largely agreed with those complaints, so we shouldn’t be surprised that delay is woven deeply into the Commission’s new approach. Unfortunately, the new process affords plenty of opportunity for non-birders (for example, competitors, NIMBYs) to slow things down as well.

While the Commission is awaiting comment on these new procedures, it also continues to conduct its own PEA assessing the entire ASR program. The FCC held a workshop in early April to discuss its approach to the PEA – and in the course of the workshop, some interesting information about birds and towers came out. For instance, while communications towers – especially taller towers, towers using guy wires, and towers using steady, non-flashing, lighting – do contribute to bird deaths, their impact is “incremental.” At least one study cited by the Commission found that less than 1% of bird deaths could be attributed to communications towers, compared to more than 10% attributed to cats, and almost 60% attributed to buildings and windows. (Hey, given those numbers, if we’re regulating towers, shouldn’t we also be regulating cats?)

The Commission expects to wrap up the first phase of the PEA in June, when it will likely release a draft PEA addressing three alternative courses of action. One possible choice: a “no action” alternative which would effectively etch in stone the interim procedures outlined in the public notice. (To call this a “no action” alternative here is a bit misleading, since this option would clearly involve a reasonably significant change in existing rules and policies.) The second and third alternatives would both entail further changes to the ASR program. One alternative would require EAs from all ASR applicants; the other would require EAs from some ASR-dependent proponents (e.g., applicants proposing tall towers, use of guy wires or steady, non-flashing lighting, and/or location in an “environmentally sensitive” area).

The public will have an opportunity (at least 30 days, maybe more) to comment on the draft PEA once it’s released. In the meantime, the proposed rules and procedures outlined in the Public Notice are open for comment now, so if you have concerns about those proposals, you may want to let the FCC know by May 5.

Environmental groups have long claimed that towers kill as many as 50 million birds per year, and that the Commission should therefore apply NEPA procedures to the ASR program. Tower operators protest that towers kill fewer than that. Previously, the FCC claimed this lack of consensus – and the lack of specific evidence – relieved it of the NEPA-imposed obligation to consider the environmental effects of the ASR program.

In 2008, the D.C. Circuit rejected the Commission’s argument. Under Commission’s own rules implementing NEPA, if an action “may have significant environmental impact, the Bureau will require the applicant to prepare an EA”. According to the Court, the Commission’s insistence that environmental groups show definitive evidence of significant effects “plainly contravenes the ‘may’ standard”.   Furthermore, the squabble over the number of birds killed confirms, rather than refutes, that registered towers may have significant environmental impact. Finally, the Court observed, the FCC’s refusal to consider the environmental effects of on these grounds goes against the basic intent of NEPA: ensuring that agencies consider environmental impacts before they act – that is, before the full ramifications are known – rather than wait until it is too late.

Accordingly, the Court held, the Commission must conduct an EA to determine whether an EIS is called for before the Commission can refuse to conduct an EIS. Pursuant to the Court’s direction, the Commission is, by its recent Public Notice, doing just that: a Programmatic Environmental Assessment (PEA) of the ASR program to (a) examine the potential effects of that program on migratory birds and (b) determine whether a programmatic EIS is necessary.

What does all this paperwork do for the birds? NEPA does not operate by imposing substantive environmental mandates on federal agencies. Rather, it requires them to explicitly thinkabout environmental issues before they take action. Specifically, preparing an EIS will require the FCC to set out a number of alternative ways to reach its regulatory goals and the environmental impact (e.g., the anticipated mortality rates of migrating birds) of each alternative. The purpose is to ensure that the agency has before it the environmental consequences of each scenario before it chooses which way to go. (The process also informs the public of the environmental aspects of the proposed action.) In this case, even if the Commission concludes from its EA that no EIS is necessary, the Commission has already committed to use the EA process to “consider alternatives to address potential environmental effects”.

Although NEPA does not require the FCC to complicate its tower registration program, it may well have that effect. Historically, tower registration has been a simple matter of uploading certain basic information about the tower to the Commission’s ASR system, which then automatically generates a registration number with no muss and no fuss. The upcoming EA process will undoubtedly serve as yet another forum for the ongoing struggle between tower owners and environmental groups. Any resulting compromise, such as the one put forth last spring, seems likely to add layers of bureaucratic complexity to the ASR system, particularly if the Commission is expected to assess the potential environmental impact of any individual towers (there are over 100,000 towers in the Commission’s database).

Comments about the PEA may be submitted by mail, by hand, or electronically through a link on the Commission’s PEA website. The deadline is January 14, 2011. Or better yet, you can present your comments in person at one of the three “scoping meetings” currently on the schedule. Those meetings are on tap in Washington, D.C. (1:30-4:30 p.m. ET on December 6, 2010), Chula Vista, California (6:00-8:30 p.m. PT on December 13, 2010) and Tampa, Florida (6:00-8:30 p.m. ET on December 15). The DC meeting will be held in the FCC headquarters. The Chula Vista gig will be at Civic Center there, and the Tampa confab will be at the John F. Germany Public Library. Come one, come all – but note that seating may be limited.

With the FCC’s wheels grinding ever so slowly, the parties – that is, a number of bird groups, on the one hand, and a number of tower folks, on the other – got together to work out some guidelines of their own. The parties to the MOU include the American Bird Conservancy, Defenders of Wildlife and National Audubon Society (collectively referred to as the “Conservation Groups”), and CTIA, NAB, PCIA and the National Association of Tower Erectors (collectively, the “Infrastructure Coalition”). 

The MOU is the result of their efforts. The MOU creates three categories of ASR actions, each entailing different notice and filing requirements. 

• Category #1 ASRs include new towers taller than 450 feet above ground level (AGL). For these bad boys, the ASR filing would have to include an Environmental Assessment (EA) and public notice by the FCC. An EA is no small matter. It requires, first, that the applicant undertake a detailed assessment of an extensive panoply of environmental, cultural, historical and other factors.  The Commission then conducts an independent review of the EA and any comments received to determine whether the proposed facility is worthy of a Finding of No Significant Impact (FONSI) on the environment.  If the Commission concludes that a FONSI is in order, then the application can be granted.
• Category #2 ASRs include: (a) new towers between 351 and 450 feet AGL and (b) certain changes in lighting styles (i.e., from a “more preferred FAA Lighting Style” to a “less preferred” style). These would have to be put out on public notice, but no EA would be required up front, although the Commission could eventually require an EA to be filed after the agency reviews the ASR application and any comments filed in response to the public notice.
• Category #3 ASRs include: (a) new towers no taller than 350 feet AGL; (b) certain other types of tower modifications that normally require an ASR (such as administrative or ownership changes, dismantlement, repair, parts replacement, etc.); and (c) certain changes in lighting styles (i.e., from “less preferred” to “more preferred”). No up-front EA would be required for these. The parties could not agree on whether public notice should be required.

The MOU includes some fine print concerning what constitutes a “replacement tower” as opposed to a “new tower”, and some cross-references to certain FAA Advisory Circulars. But by and large the MOU is a short and sweet document that gets right to the point. It also specifically identifies as an “unresolved issue” the question of whether public notice should be required for Category #3 ASRs, but the parties all agree to abide by whatever the FCC may decide in that regard.

The concept of pre-registration public notice for two large categories of towers is a major change from the way the Commission has historically done business. But the fact is that the 2008 opinion by the D.C. Circuit clearly directed the Commission to come up with some notice mechanism to “ensure meaningful public involvement” in the tower registration process – so the FCC doesn’t have much wiggle room there.

The parties have submitted the MOU to the Commission in the still-on-going bird-related proceedings started back in 2003 and 2008. While there’s never any guarantee about such things, it’s hard to imagine why the Commission would not embrace the MOU’s approach. But you never can tell, so stay tuned for further developments.

Those proposals were set out in a “Petition for Expedited Ruling and Other Relief” filed by a number of prominent national organizations – the American Bird Conservancy, Defenders of Wildlife, the National Audubon Society – which have been flapping their wings at the FCC for years. They argue that communications towers are responsible for millions of bird deaths each year, and that that constitutes an environmental impact triggering the National Environmental Policy Act (NEPA) and the ESA.

The FCC, which already has a lot on its plate what with spectrum management and all, has historically been less than enthusiastic about taking on the additional responsibility for full-tilt environmental protection as well. But the birders have been insistent, and last year they managed to convince the federal appeals court in D.C. that the FCC should be required to “provide notice of pending tower applications that will ensure meaningful public involvement in implementing NEPA procedures.” The Commission hasn’t done much to follow up on that little chore – and, as a result, the birders have swooped in again to keep the pressure up.

In their latest petition the birders repeat the assertion which they have made previously – that communications towers account for as many as 50,000,000 bird kills each year. That’s a lot of birds, for sure – but, as it turns out, the 50,000,000 figure is only an estimate, and a high side estimate at that. (Compare it to other estimates of avian adversaries advanced by the bird lobby: “vehicular strikes” – 60,000,000-80,000,000; power line collisions – “hundreds of millions”; and seemingly the biggest killer of all, building windows – 97,000,000-980,000,000.)

(With respect to the raw 50,000,000 number, our colleague Ron Whitworth observed as follows in our March, 2007, Memo to Clients: “Presumably most birds that suffer fatal collisions with towers can be expected to die in relatively close proximity to the tower they whack. If that’s correct, then their remains should be easy to find by anyone walking in the vicinity of the tower. That is, unlike elephants and their mythic elephant burial grounds (i.e., secret places where elephants supposedly toddle off to die – as reliably depicted in the 1934 classic, Tarzan and his Mate), dead birds should be readily findable. And when you’re talking about 50,000,000 birds per year, it just can’t be that hard to document at least some of them. Do the math. Let’s say that there are about 100,000 registered towers out there. (Actually, there are about 92,000, but we’ll be generous.) That means that, on average, every year each tower supposedly kills 500 birds. So on average, each and every tower owner should be finding about 10 dead birds around each and every tower every week, all year long.”)

In any event, whatever the actual level of risk may be, the push for increased FCC sensitivity to the impact of towers on birds (and vice versa) is obviously not going away. The Commission has invited comment on the birders’ latest petition. Comments are due May 29; replies are due June 15. At this point it’s impossible to predict what’s likely to happen. But the birders have unquestionably enjoyed some success in the courts, and they don’t appear to be going away anytime soon. Their proposals, if fully adopted and implemented, could slow new tower construction to a crawl – so if you expect to be building a new tower subject to the FCC’s antenna registration process in the foreseeable future, you may want to get involved now.