Conservation groups, tower groups agree on some interim standards for public notice of ASR applications; FCC reaction awaited

As the FCC tries to get a grip on its overall regulation of antenna structures (we recently reported about those efforts here), there is a ray of hope that one historically contentious aspect of the tower registration process may be heading toward a compromise solution. Earlier this month, a Memorandum of Understanding (MOU) was signed by several communications industry groups and several conservation groups. In their MOU the parties propose some interim processing standards for the FCC that might break a years-long impasse, and result in new procedures (interim, at least for now) governing the regulation of new tower construction.

The issue here is, for the most part, birds.

Since way back in 2001, conservation groups (including the American Bird Conservancy and the Forest Conservation Council) have been pushing to get the Commission to take steps to help save birds in the Gulf Coast region. They claimed that bird collisions with communications towers kill millions of birds annually – just the kind of thing that the National Environmental Protection Act (and the Endangered Species Act and the Migratory Bird Treaty Act) were designed to address. 

However, the Commission’s relatively loosey-goosey (to use technical avian terminology) approach to tower regulation provided no mechanism for any potential objectors to bring such concerns to the FCC’s attention before any tower was constructed. While many towers are subject to the Commission’s Antenna Structure Registration (ASR) program, the registration process has historically not included any pre-registration public notice of proposed construction. In a 2002 petition, the bird fanciers asked that the Commission start issuing such pre-registration notice; they also argued that the Commission should have undertaken separate environmental assessments for about a gazillion towers already built throughout the Gulf Coast region.

The Commission looked into the claims preliminarily, but ultimately decided to consider bird-related issues on a nation-wide basis (not just in the Gulf Coast). The birder groups were not inclined to wait, and they sought judicial intervention. In 2008, the U.S. Court of Appeals for the D.C. Circuit landed on the side of the avian avengers. The Court concluded that the FCC needed to straighten up and fly right, with more notice to the public and better consultation with the Fish and Wildlife Service, among other things.

The Commission has had the matter under advisement since then.

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.