Proposed changes, and consequent delays, may stick in some craws

Looking to build a new tower, or maybe make changes to an existing tower? If your proposal involves an antenna structure that requires an Antenna Structure Registration (ASR), you can expect delays ahead if new procedures recently proposed by the Commission are adopted.

This latest development is just one more wrinkle in the years-long effort by a number of bird-loving groups to force the Commission to consider the impact of its ASR program on birds. We have written about that effort – which the birders appear to be winning – previously. The Commission is already in the middle of its own (court-ordered) Programmatic Environmental Assessment (PEA) relative to the ASR program. And while the Commission wades through the PEA process, it is now proposing new processing rules and interim procedures designed to give the public an opportunity to comment on proposed ASR-dependent towers (and proposed changes to existing towers) even before they’re formally proposed!

All of this is set out in a Public Notice recently published in the Federal Register.

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.