Client Alert

The Federal Communications Commission has imposed a set of new environmental filing requirements upon most communications towers requiring an Antenna Structure Registration. The procedures apply to new towers as well as to substantial changes in existing structures.

 

The action is intended to minimize the impact of communications towers upon migratory birds. Although the FCC has been studying the issue for over eight years, and had rejected a prior petition, nearly four years ago it was ordered by a court to provide a meaningful opportunity for public participation. The FCC continues to consider permanent procedures in conjunction with the U.S. Fish and Wildlife Service, but in the meantime has fashioned an interim approach, which will apply to tower applications filed after an effective date to be announced.

 

The new rules create a pre-application procedure to invite public comment on the environmental impact of a proposed structure or modification, and to require an Environmental Assessment for towers over 450 feet in height. Although details remain to be announced, here is an outline of the new procedures, as disclosed so far:

 

Affected Structures: The new environmental notification procedures will apply to all structures that require FCC Antenna Structure Registration (generally limited to towers over 200 feet in height above ground level or near airport runways). In addition, they apply to modifications that may result in a greater environmental impact by towers already requiring an ASR. Such changes include location, excavation within 30 feet, appurtenances protruding more than 20 feet from an edge of the tower, new equipment cabinets, substantial increases in height, and changes in lighting to a higher-impact category. Subject to certain exceptions, substantial height increases include those exceeding 10% of existing height or the height of one additional antenna array. As for lighting changes, the FCC will separate towers into three ranks: those having (1) no lights, (2) FAA Lighting Styles that do not involve the use of red steady lights, and (3) red steady lights (which have been found to pose the greatest threat to birds). The new procedures will not generally apply to ASR modifications that only involve ownership, address or contact changes, or that do not alter the physical structure. In addition, an exception applies to structures on federal land under the jurisdiction of another federal agency.

 

Structures not exempt from ASR registration that are over 450 feet high are subject to the further requirement of submitting a full Environmental Assessment containing considerable detail. Under current FCC procedures, evaluations of Environmental Assessments often take considerable time, so unless the FCC is able to streamline and accelerate that process, this requirement may significantly affect the construction or expansion of tall towers.

 

Notification Requirements: Two types of notification are required – national and local. National notice will be triggered by submission of a partially-completed tower registration application on FCC Form 854 containing ownership and contact information, geographic location, type of structure, height and anticipated lighting. The FCC will maintain a searchable public website upon which the information will be posted for 30 days. However, the national posting will not begin until local notice has been given. Local notice will consist of publication of relevant information in a newspaper of general circulation or through public notification provisions of a relevant local zoning procedure. In addition to the FCC Form 854 information, the local notice will provide information as to the procedure for interested persons to file requests for environmental processing. A new environmental notification will be required for amendments involving any increase in height, as well as other modifications to a proposal that would have required notification in the first place.

 

FCC staff advises that to minimize delay notification can begin prior to submission, or during processing, of a construction permit application. The Commission recognizes that in some emergency situations, such as where temporary towers are required to restore lost communications, it may grant Special Temporary Authority prior to commencement of the notification procedure.

 

Public Participation: Under the new procedures, anyone may file a request for environmental processing within 30 days after notification appears on the FCC website. While formal petition to deny requirements (such as a demonstration of standing and verification of facts) are not required, a valid request must be served on the tower applicant and must state why the interested person or entity believes that the proposed antenna structure or physical modification may have a significant impact on the quality of the human environment. The applicant may file an opposition within 10 days after the 30-day notice period expires, and the requester may file a reply within five days after the opposition due date. After the 30-day notice period and after reviewing any requests and related pleadings, the relevant FCC bureau will notify the applicant if an Environmental Assessment is required.

 

These new environmental procedures are likely to affect the timing of the FCC approval process for tower construction or modifications. It is also important to consider that even tower construction that does not require an ASR, and thus would be exempt from the new rules, may still require other approvals by local, state or federal authorities.

 

A copy of the FCC’s Order on Remand that establishes the new environmental procedures (FCC 11-181) is available on the Commission’s website at: http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db1209/FCC-11-181A1.pdf.

 

We will advise you further when the effective date and more details are announced. In the meantime, if you would like to discuss the impact of these rule changes upon your plans, please contact contact Peter Gutmann (pgutmann@wcsr.com or (202) 857-4532) or any member of the firm’s Communications Law Group.

 

Womble Carlyle client alerts are intended to provide general information about significant legal developments and should not be construed as legal advice regarding any specific facts and circumstances, nor should they be construed as advertisements for legal services.

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