Staff sheds light on chores underlying environmental certification in CP applications

Back in the day, the conventional “environmental” certification required of construction permit applicants tended to be limited to the (usually) non-existent potential RF effects on passers-by at the proposed transmitter site. But in 2005 a “Nationwide Programmatic Agreement” (NPA) entered into by the Commission, the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers became effective.   (A copy of the NPA and related information may be found here.)  Since then, applicants for new FCC construction permits have been required to take extensive steps to confirm that their proposed construction would not cause unacceptable disruption to environmental, historical or cultural interests.

The Audio Division recently reminded us all of those requirements. In a 22-page decision, the Division took to task an applicant whose supposed efforts to comply with the requirements were “woefully insufficient”. While the Commission ultimately granted this particular applicant the permits it had asked for, the Division’s decision sends a clear message to future applicants: take the environmental certification requirement seriously before you make that certification.

The applicant in this case was proposing to locate three FM antennas on a single tower to be built on a mountain in Wyoming. In each of the three CP applications the applicant certified that the proposed construction would not have a significant environmental impact. But a petitioner opposed the applications, alleging that the applicant had not verified the accuracy of its certification. As often happens when a petitioner shines a harsh light on such things, a considerable number of previously undisclosed details popped up.  

As it turned out, the applicant had indeed taken virtually no steps to confirm that its certification was accurate. Sure, one of its principals had looked over the endangered species list and maybe received some off-the-cuff thoughts of personnel at the Bureau of Land Management indicating that the site was the “best available”. But that fell far short of what the Commission expects.

What does the Commission expect?

With respect to the effect of the proposed construction on endangered or threatened species, the applicant is supposed to make a “meaningful evaluation of the effects of their proposals on listed and threatened species and habitats before filing the application.” The Division indicates that a statement from the Fish and Wildlife Service (FWS), or alternatively an opinion from a “qualified biologist using the most current data”, would usually do the trick.

With respect to the effect of the proposed construction on historic properties, the Commission’s rules, the NPA and other related authorities lay out a number of chores that need to be completed. Those include preparation and submission of a Form 620 (“New Tower Submission Packet”) to the relevant State Historic Preservation Office (SHPO) and/or Tribal Historic Preservation Office (THPO). And the preparation of the Form 620 in turn requires additional research concerning, among other things, the “area of potential effects” that would be adversely affected by the construction.

With respect to the effect of the proposed construction on matters of religious or cultural importance to any Native American tribes, the NPA specifies notice requirements, and the Commission has established a mechanism by which those requirements can be satisfied with relative ease.

Our Wyoming applicant appears to have ignored all of these requirements. After all, the folks at the BLM had not said diddly-squat about Indian religious sites. Moreover, since there were already two non-broadcast towers in the vicinity of the proposed site, the applicant figured any historical or religious sites that might ever have been located there had already been destroyed.

Once the Commission started asking questions about the applicant’s certification, though, the applicant got a lot more serious about the process. The applicant obtained a letter from the relevant SHPO confirming that no historic properties would be affected, a letter from the FWS confirming that there were no endangered species in the area, and a report from an environmental consultant demonstrating that appropriate contact had been made with Indian tribes. Enough documentation to convince the Division that the proposed construction would be consistent with the applicable NPA considerations.

Still, the Division was clearly unhappy about the fact that the applicant had certified without having any clue about the validity (or lack of validity) of its certification. Sternly shaking its bureaucratic finger at the applicant, the Division said that a monetary forfeiture would have been in order. But, oops, the statute of limitations had already tolled, leaving the Division powerless to impose such a forfeiture. So the applicant got its applications granted, and it didn’t get fined – but it did get a stern talking-to by the Division, and the grants of its applications (filed in mid-2007 and early 2008) were delayed. Perhaps that was punishment enough.

The take-home message of this case is simple: the Commission remains very serious about compliance with the NPA, and it stands ready to enforce the NPA. And now that the Division has had the chance to alert the industry through this recent decision, the next applicant who tries to get away with less-than-complete environmental compliance can likely expect to suffer a considerably harsher fate than the Wyoming applicant here. 

We at FHH can help guide CP applicants through the various steps to avoid such a harsher fate.