FCC adopts changes in ASR processes for the birds; OMB approval still needed

It looks like new bird-friendly procedures for proposed tower construction could be with us by summer. If you’re thinking about building a tower 200 feet tall (or taller) – and especially if you’re planning to build something taller than 450 feet – you might want to get that proposal on file sooner rather than later. The longer you wait, the more likely it is that you’ll end up subject to considerably more burdensome processes.

The new procedures have been years in the making. (We previewed them last April, shortly after the Wireless Bureau solicited comments on a preliminary version.) They arise from concerns raised by a number of conservation groups (e.g., the American Bird Conservancy, the National Audubon Society) who urged that the Commission should afford more opportunity for public comment about proposed tower construction. According to the conservation groups, towers pose risks to birds (particularly migratory birds).

Accordingly, the groups (with a boost from a 2008 decision of the U.S. Court of Appeals for the D.C. Circuit) have pressed the Commission to modify its Antenna Structure Registration (ASR) program. Those chickens will soon be coming home to roost.

Under new rules adopted last December (but which – as explained below – have not yet taken effect), anticipated tower construction subject to the ASR program must be brought to the Commission’s attention before any application is filed. That is, before formally applying for an ASR (much less for the particular RF facilities to be installed on the to-be-built structure), prospective applicants must first submit a partially completed Form 854 (the standard ASR application form). That will include information regarding the type of tower proposed and the lighting that will be used. The prospective applicant must also provide local notice of the filing in a newspaper or through “other appropriate means.”

Once filed, that partial Form 854 will be available for public review and comment for at least 30 days on the FCC’s ASR website. Commenters may request that the tower proposal be subject to additional environmental review. (The tower proponent is entitled to respond to any such request.) The Commission will then evaluate the filings.  If the Commission concludes that no additional review is necessary, the tower proponent will be allowed to submit a complete Form 854. But if additional review is found to be warranted, the proponent will have to submit an Environmental Assessment (EA) showing in detail why the proposed tower will not have a significant environmental impact.

If an EA is required, it, too, will be posted on the Commission’s ASR website and subject to public comment, although no second local notice will be required. (If a tower proponent determines on its own, prior to filing the partially completed 854, that an EA is required, that EA is to be submitted with the partially completed Form 854 at the beginning of the process.)

The process outlined above will cover any applications for new towers that require ASRs. Administrative modifications to ASRs (e.g., changes in ownership or contact information) will not be subject to the new provisions. Also exempted will be replacement of any existing tower with a tower which (a) has identical physical characteristics and (b) is located within one second of latitude and longitude from the original tower.

In addition to new towers, the partial Form 854 approach will be required for some, but not all, modifications to existing towers (including collocation of new antennas on existing towers). Generally, if a modification does not involve a “substantial” increase in the size of the tower or any new construction or excavation more than 30 feet beyond the existing tower, the new provisions will not apply. As used in the new processing rules, the concept of “substantial” changes will be defined as it is in the Commission’s Nationwide Programmatic Agreement for Review of Effects on Historic Properties (NPA). For readers who haven’t brushed up on their NPA definitions recently, “substantial” changes include (but aren’t necessarily limited to) height increases of greater than 10 percent, and increases in the width of a tower by more than 20 feet.

Changes in the lighting used on an existing tower may also be subject to the new process. In its Order, the Commission has adopted a three-tiered system of “preferred” lighting styles, running from “most preferred” (i.e., no lights at all) to “least preferred” (i.e., red steady lights), with anything else falling in the middle. Changes from a more preferred style to a less preferred style will be subject to the partial Form 854 process, while “improvements” (i.e., changes that would result in a more preferred lighting arrangement) will not.

Also exempt from the new processing rules are towers located on federal land, as long as the agency responsible for the land will assess the proposed tower’s environmental impact.

Finally, the Commission cautions that any application – even one that does not require an ASR and thus does not involve construction subject to the new processes – can be challenged based on claimed environmental impact.

In a separate but related change adopted in the same order, the FCC concluded that all proposals for towers over 450 feet must be accompanied by an EA to be submitted with the partially completed Form 854 at the beginning of the process. Public notice of the filing of the EA must be provided.

When do the new procedures kick in? It’s hard to say. Because they involve “information collections”, they must first be approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act. The process for securing that approval has begun, but the initial phase of that process won’t wrap up before early March, and the second phase will likely stretch into April, maybe even May. Until OMB blesses the new rules, they can’t take effect.

And while we don’t want to confuse things even more than they may already be, we are constrained to point out that the new procedures described above will – even once they take effect – be essentially non-permanent, interim measures. That’s because the Commission has not yet completed its full assessment of the environmental impact of its own ASR program (the Programmatic Environmental Assessment, or PEA). Depending on the outcome of the PEA, the Commission may need to prepare a further Environmental Impact Statement, and may adopt new processing rules based on the results of the PEA and/or the EIS.

But the completion of the PEA and/or EIS and the adoption of permanent rules are not likely to occur in the near term. (Frame of reference: the Commission initiated its review of the impact of the ASR process on migratory birds not quite a decade ago, and it was ordered by the D.C. Circuit to proceed “with dispatch” in wrapping that proceeding up four years ago. Time, it would seem, is not of the essence here.) In the meantime, the procedures adopted last December and outlined above will have to be satisfied, once they become effective.

When the new processing rules do become effective, they will be applied only prospectively. Any pending applications for ASRs or service-specific applications will not need to be amended to address the new requirements. Since the new ASR procedures, once they take effect, will probably add significant delay to the FCC’s processing of applications, folks planning to build a tower subject to the ASR rules might want to get their applications filed as quickly as possible, to avoid that additional delay.