[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 3935-3955]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1535]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 17, 22, 24, 25, 27, 80, 87 and 90
[WT Docket No. 08-61; WT Docket No. 03-187; FCC 11-181]
National Environmental Policy Act Compliance for Proposed Tower
Registrations; Effects of Communications Towers on Migratory Birds
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission (FCC
or Commission) adopts a rule that affects the process of tower
construction by instituting a pre-application notification process so
that members of the public will have a meaningful opportunity to
comment on the environmental effects of proposed antenna structures
that require registration with the Commission. As an interim measure
pending completion of a programmatic environmental analysis and
subsequent rulemaking proceeding, the Commission also requires that an
EA be prepared for any proposed tower over 450 feet in height.
DATES: The rules in this document contain information collection
requirements that have not been approved by OMB. The Federal
Communications Commission will publish a document in the Federal
Register announcing the effective date.
FOR FURTHER INFORMATION CONTACT: Mania Baghdadi, Wireless
Telecommunications Bureau, (202) 418-2133, email
Mania.Baghdadi@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Remand in WT Docket Nos. 08-61 and 03-187, adopted December 6, 2011,
and released December 9, 2011. The full text of the Order on Remand is
available for public inspection and copying during business hours in
the FCC Reference Information Center, Portals II, 445 12th Street SW.,
Room CY-A257, Washington, DC 20554. It also may be purchased from the
Commission's duplicating contractor at Portals II, 445 12th Street SW.,
Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com or by calling (800) 378-3160, facsimile (202) 488-5563,
or email FCC@BCPIWEB.com. Copies of the Order on Remand also may be
obtained via the Commission's Electronic Comment Filing System (ECFS)
by entering the docket numbers WT Docket No. 08-61 or WT Docket No. 03-
187. Additionally, the complete item is available on the Federal
Communications Commission's Web site at http://www.fcc.gov.
I. Introduction
1. In this Order, the Commission takes procedural measures to
ensure, consistent with its obligations under Federal environmental
statutes, that the environmental effects of proposed communications
towers, including their effects on migratory birds, are fully
considered prior to construction. The Commission institutes a pre-
application notification process so that members of the public will
have a meaningful opportunity to comment on the environmental effects
of proposed antenna structures that require registration with the
Commission. As an interim measure pending completion of a programmatic
environmental analysis and subsequent rulemaking proceeding, the
Commission also requires that an Environmental Assessment (EA) be
prepared for any proposed tower over 450 feet in height. Through these
actions and the Commission's related ongoing initiatives, the
Commission endeavors to minimize the impact of communications towers on
migratory birds while preserving the ability of communications
providers rapidly to offer innovative and valuable services to the
public.
2. The Commission's actions in this Order respond to the decision
of the Court of Appeals for the District of Columbia Circuit in
American Bird Conservancy v. FCC, 516 F.3d 1027 (DC Cir. 2008)
(American Bird Conservancy). In American Bird Conservancy, the court
held that the Commission's current antenna structure registration (ASR)
procedures impermissibly fail to offer members of the public a
meaningful opportunity to request an EA for proposed towers that the
Commission considers categorically excluded from review under the
National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The
notification process that the Commission adopts today addresses that
holding of the court. In addition, the court held that the Commission
must perform a programmatic analysis of the impact on migratory birds
of registered antenna structures in the Gulf of Mexico region. The
Commission is already responding to this holding by conducting a
nationwide environmental assessment of the ASR program. The Commission
has also asked the U.S. Fish and Wildlife Service (FWS) to perform a
conservation review of the ASR program under the Endangered Species Act
(ESA), 16 U.S.C. 1531 et seq.
3. The Commission's action also occurs in the context of its
ongoing rulemaking proceeding addressing the effects of communications
towers on migratory birds. In 2006, the Commission sought comment on
what
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this impact may be and what requirements, if any, the Commission should
adopt to ameliorate it. Effects of Communications Towers on Migratory
Birds, WT Docket No. 03-187, Notice of Proposed Rulemaking, 71 FR 67510
(November 22, 2006) (Migratory Birds NPRM or Migratory Birds
proceeding). Evidence in the record of that proceeding indicates, among
other things, that the likely impact of towers on migratory birds
increases with tower height. Consistent with that evidence and with a
Memorandum of Understanding (MOU) submitted May 4, 2010, by
representatives of communications providers, tower companies, and
conservation groups, the Commission requires, as an interim measure,
that an EA be prepared for any proposed tower over 450 feet in height.
The Commission expects to take final action in the Migratory Birds
proceeding following completion of the programmatic EA and, if
necessary, any subsequent programmatic Environmental Impact Statement
(EIS).
4. Specifically, the Commission takes the following actions in this
Order:
The Commission requires that prior to the filing of an ASR
application for a new antenna structure, members of the public be given
an opportunity to comment on the environmental effects of the proposal.
The applicant will provide notice of the proposal to the local
community and the Commission will post information about the proposal
on its Web site. Commission staff will consider any comments received
from the public to determine whether an EA is required for the tower.
Environmental notice will also be required if an ASR
applicant changes the lighting of existing tower to a less preferred
lighting style.
The Commission modifies its procedures so that EAs for
those registered towers that require EAs will also be filed and
considered prior to the ASR application. Those EAs are currently filed
together with either the ASR application or a service-specific license
or permit application.
The Commission institutes an interim procedural
requirement that an EA be filed for all proposed registered towers over
450 feet in height. Staff will review the EA to determine whether the
tower will have a significant environmental impact. This processing
requirement is an interim measure pending completion of the ongoing
programmatic environmental analysis of the ASR program.
5. Also pending before the Commission are two Petitions for
Expedited Rulemaking: one filed May 2, 2008, by CTIA--The Wireless
Association, National Association of Broadcasters, National Association
of Tower Erectors, and PCIA--The Wireless Association; and another
filed April 24, 2009, by American Bird Conservancy, Defenders of
Wildlife and National Audubon Society. In light of the Commission's
adoption of an environmental notification process that provides a
meaningful opportunity for the public to raise environmental concerns
as to prospective ASR applications, together with the commencement of
the programmatic EA, the Commission grants in part and dismisses in
part these petitions for expedited rulemaking. To the extent that this
Order adopts a notification process for prospective ASR applications
and otherwise responds to concerns raised by the court, the Petitions
are granted in part. Insofar as the Petitions seek relief beyond the
scope of this Remand Order, they are dismissed without prejudice.
Either Petition may be refiled to seek relief on any issues that may
remain relevant following completion of the programmatic NEPA analysis.
II. Background
A. NEPA and CEQ Rules
6. NEPA requires all Federal agencies, including the FCC, to
identify and take into account environmental effects when deciding
whether to authorize or undertake a major Federal action. Although NEPA
does not impose substantive requirements upon agency decision-making,
Title I requires Federal agencies to take a ``hard look'' at proposed
major Federal actions that may have significant environmental
consequences and to disseminate relevant information to the public.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50
(1989). Specifically, Section 102(2)(C) of NEPA requires the
preparation of a detailed EIS for any ``major Federal action[]
significantly affecting the quality of the human environment. * * *''
42 U.S.C. 4332(2)(C). In preparing the EIS, the action agency must
consult with any other Federal agency with jurisdiction or expertise
over any environmental impact involved.
7. Section 204 of NEPA, 42 U.S.C. 4344, created the Council on
Environmental Quality (CEQ) and entrusted it with oversight
responsibility regarding the NEPA activities of Federal agencies. To
implement Section 102(2) of NEPA, CEQ promulgated regulations, 40 CFR
parts 1500-1508, that ``tell federal agencies what they must do to
comply with the procedures and achieve the goals of the Act.'' 40 CFR
1500.1(a). These regulations are ``applicable to and binding on all
Federal agencies for implementing the procedural provisions of [NEPA] *
* * except where compliance would be inconsistent with other statutory
requirements.'' 40 CFR 1500.3. Thus, as mandated by NEPA, each Federal
agency issues its own regulations and procedures that implement its
NEPA responsibility to identify and account for the environmental
impacts of projects it undertakes or authorizes. 42 U.S.C. 4332(2)(B).
Such regulations must follow the requirements specified in CEQ
regulations. 40 CFR 1507.1, 1507.3.
8. CEQ's regulations direct agencies to identify their major
Federal actions as falling into one of three categories. 40 CFR
1507.3(b)(2). The first such category encompasses those actions that
normally have a significant environmental impact. These actions always
require an EIS. 42 U.S.C. 4332(2)(C). See also 40 CFR 1508.11. A second
category of agency actions includes those actions that ordinarily may,
but do not routinely, have a significant environmental impact. For
actions in this category, an agency may conduct an EA in lieu of an
EIS. 47 CFR 1.1307. See also 47 CFR 1.1308(b). An EA is briefer than an
EIS, and its purpose is to determine whether an EIS is required, 40 CFR
1508.9. See also 40 CFR 1501.4(b). If an EA shows that a proposed
action will have no significant environmental impact, then the agency
issues a Finding of No Significant Impact (FONSI), see 40 CFR 1508.13,
and the proposed action can proceed. However, if an EA indicates that
the action will have a significant environmental impact, the agency
must proceed with the EIS process.
9. The third category of actions--``categorical exclusions''--are
those actions agencies have identified ``which do not individually or
cumulatively have a significant effect on the human environment * * *
and for which * * * neither an environmental assessment nor an
environmental impact statement is required.'' See 40 CFR
1507.3(b)(2)(ii). See also 40 CFR 1508.4. CEQ regulations require that
an agency that chooses to establish categorical exclusions must also
provide for ``extraordinary circumstances'' under which a normally
excluded action may have a significant effect. CEQ regulations also
state that an agency may decide, in its procedures or otherwise, to
prepare EAs for specific reasons even when not required to do so. Thus,
although categorically excluded actions presumptively are exempt from
environmental review,
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agency decisions or ``extraordinary circumstances'' may require their
review in the form of the preparation of EAs or EISs. 40 CFR 1508.4,
1507(b)(1).
10. One of NEPA's central goals is to facilitate public involvement
in agency decisions that may affect the environment. 40 CFR 1500.1(b),
1500.2(d). Section 1506.6 of CEQ's regulations governs public
involvement in federal agencies' implementation of NEPA. 40 CFR 1506.6.
Section 1506.6(a) provides generally that agencies shall ``make
diligent efforts to involve the public in preparing and implementing
their NEPA procedures.'' Section 1506.6(b) specifically directs
agencies to provide ``public notice of * * * the availability of
environmental documents'' to parties who may be interested in or
affected by a proposed action. Environmental documents include EAs,
EISs, FONSIs, and Notices of Intent (NOIs). 40 CFR 1508.10. For actions
``with effects primarily of local concern,'' Section 1506.6(b)(3)
suggests nine ways of providing local public notice, while Section
1506.6(b)(2) discusses methods of providing notice for actions ``with
effects of national concern.'' In a memorandum to agencies, the CEQ has
explained that ``[a] combination of methods may be used to give notice,
and the methods used should be tailored to the needs of particular
cases.'' Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18026 March 23, 1981.
B. The Commission's NEPA Process
11. The NEPA Rules. CEQ has approved the Commission's rules
implementing NEPA, 47 CFR 1.1301 through 1.1319. See Petition by Forest
Conservation Council, American Bird Conservancy and Friends of the
Earth for National Environmental Policy Act Compliance, Memorandum
Opinion and Order, 21 FCC Rcd 4462, 4468, para. 18 (2006). These rules
apply to the processing of antenna structure registration applications,
which the Commission has deemed to constitute a major Federal action.
Streamlining the Commission's Antenna Structure Clearance Procedure,
Report and Order, 61 FR 4359 (February 6, 1996) (Antenna Structure
Clearance R&O). Consistent with CEQ regulations, the Commission's
current environmental procedures: (1) Require preparation of an EIS for
any proposed action deemed to significantly affect the quality of the
human environment, 47 CFR 1.1305, 1.1314, 1.1315, 1.1317; (2) require
preparation of an EA for any proposed action that may have a
significant environmental effect, 47 CFR 1.1307; and (3) categorically
exclude from environmental processing proposed actions deemed
individually and cumulatively to have no significant environmental
effect, 47 CFR 1.1306.
12. Sections 1.1307(a) and (b) of the Commission's existing rules
identify those types of communications facilities that may
significantly affect the environment and for which applicants must
always prepare an EA that must be evaluated by the Commission as part
of its decision-making process. Thus, Commission licensees and
applicants must currently ascertain, prior to construction or
application for Commission authorization or approval, whether their
proposed facilities may have any of the specific environmental effects
identified in these rules. 47 CFR 1.1308. The rules currently do not
identify facilities that may affect migratory birds as requiring
preparation of an EA. The Commission notes, however, that licensees and
applicants must consider effects on migratory birds that are listed or
proposed as endangered or threatened species under the ESA. See 47 CFR
1.1307(a)(3).
13. Under the existing rules, actions not within the categories for
which EAs are required under Sections 1.1307(a) and (b) of the
Commission's rules ``are deemed individually and cumulatively to have
no significant effect on the quality of the human environment and are
categorically excluded from environmental processing * * * [e]xcept as
provided in Sections 1.1307(c) and (d).'' 47 CFR 1.1306(a). Thus, most
antenna structure registrations are categorically excluded from
environmental processing. Under Sections 1.1307(c) and (d), the agency
shall require an EA if it determines that an otherwise categorically
excluded action may have a significant environmental impact. These
provisions satisfy Section 1508.4 of CEQ's rules, 40 CFR 1508.4,
requiring that ``[a]ny [categorical exclusion] provisions shall provide
for extraordinary circumstances in which a normally excluded action may
have a significant environmental effect.'' Thus, even though a
potentially significant effect on migratory birds is not one of the
categories of proposed actions identified in Section 1.1307(a) of the
rules as requiring an EA, the Commission has on several occasions
considered the impact of particular proposed construction projects on
migratory birds and, in appropriate circumstances, has required
modifications to protect them.
14. NEPA Review for Towers Subject to ASR. Section 303(q) of the
Communications Act vests the Commission with authority to require the
painting and/or lighting of radio towers if and when in its judgment
such structures constitute, or there is a reasonable possibility that
they may constitute, a menace to air navigation. 47 U.S.C. 303(q). To
implement this provision, Part 17 of the Commission's rules requires
that, if notification of proposed construction must be provided to the
Federal Aviation Administration (FAA) under its rules, then such
proposed antenna structures or modifications to antenna structures must
also be registered in the Commission's ASR System prior to
construction. 47 CFR 17.4(a). Notification to the FAA is generally
required for any antenna structure that is over 200 feet in height
above ground level or that meets certain other criteria, such as
proximity to an airport runway. 14 CFR 77.13; 47 CFR 17.7. Before the
antenna structure is registered with the FCC, the tower owner must
obtain a No Hazard to Air Traffic Determination (No Hazard
Determination) from the FAA. The Commission has determined that the
process of FAA clearance and FCC registration effectively constitutes a
pre-construction approval process within the Commission's Section
303(q) authority and is therefore subject to the provisions of NEPA and
other Federal environmental statutes. Antenna Structure Clearance R&O,
61 FR 4359 (February 6, 1996).
15. To register an antenna structure, the antenna structure owner
must submit to the Commission a valid ASR application (FCC Form 854,
Application for Antenna Registration), along with the No Hazard
Determination from the FAA. Because the processing of ASR applications
is a major Federal action, the tower owner must certify in response to
current Question 38 on Form 854 (the number may change on the revised
form) whether the proposed antenna structure may have a significant
environmental effect, as defined by Sections 1.1307(a) and (b) of the
rules, for which an EA must be prepared. The Commission will not
process an ASR application if Question 38 is not answered. A ``no''
answer signifies that none of the circumstances delineated in Sections
1.1307(a) and (b) of the Commission's rules apply to the proposed tower
and that an EA is not required to be submitted with the application. In
that event, the ASR system verifies against the FAA's database the
accuracy of the lighting and marking specifications provided by the
applicant. The ASR system then issues an antenna structure registration
(Form 854R) without the Commission
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having provided prior public notice of the pending ASR application.
16. If the response to Question 38 is ``yes,'' the applicant must
submit an EA, along with supporting documentation, when it files the
ASR application with the Commission. This means that the application
will not be processed until the Bureau has resolved the environmental
concerns addressed in the EA. 47 CFR 17.4(c). Such an application is
placed on public notice for thirty (30) days, by publication of a
notice in the Daily Digest. This process affords interested persons an
opportunity to comment on the EA and also, pursuant to Section
1.1307(c), to seek environmental review with respect to effects, such
as impact on migratory birds, that do not routinely require preparation
of an environmental assessment.
17. Under the Commission's rules, applicants for some proposed
towers may be required not only to file an ASR application but also to
file service-specific applications. For example, applicants for certain
public safety and wireless radio service facility authorizations may be
required to file both an ASR application and a site-by-site license
application. The license application (Form 601, Application for
Wireless Telecommunications Bureau Radio Service Authorization) may be
placed on public notice pursuant to the Commission's licensing rules.
To date, those applicants have been permitted to choose whether to
attach any required EA to FCC Form 854 or FCC Form 601. Broadcast
construction applicants are, on the other hand, required to submit the
EA, if any is required, with the service-specific application and do
not submit a copy of the EA with the associated FCC Form 854.
Similarly, while pre-construction approval is generally not required
for satellite earth stations, if an EA is required, the applicant must
submit a service-specific application on FCC Form 312 (Application for
Satellite Space and Earth Station Authorizations) and attach the EA to
that application, which is then placed on 30-day public notice, prior
to construction. 47 CFR 25.115, 25.151.
18. Towers Not Subject to ASR. Licensees may also construct and use
towers that do not require registration with the Commission. In the
event an EA is required for one of these towers, it is filed with the
appropriate license application and processed by the Bureau responsible
for licensing that service. If a tower company that is not a licensee
or license applicant wishes to construct a tower that does not require
antenna structure registration, but does require an EA, that company
typically registers the tower by filing an FCC Form 854 as a vehicle
for submitting the EA. This Order does not change processing procedures
for towers that do not require ASR filings.
19. Collocations. Licensees are often able to collocate antennas on
existing buildings or structures. Under the Nationwide Programmatic
Agreement for the Collocation of Wireless Antennas, 47 CFR part 1,
appendix B, collocation is defined as ``the mounting or installation of
an antenna on an existing tower, building or structure for the purpose
of transmitting and/or receiving radio frequency signals for
communications purposes.'' Because collocations are unlikely to have
environmental effects, with limited exceptions they are not subject to
environmental processing, except upon a determination by the processing
Bureau under Section 1.1307(c) or (d), based on its examination of a
petition submitted by an interested person or its own motion, that the
proposed collocation may significantly affect the environment. 47 CFR
1.1306 (Note 1); see 47 CFR 1.1307(c)-(d). The procedures adopted in
this Order will apply only to certain collocations that may have a
significant effect on migratory birds because they involve a
substantial increase in size of a registered tower.
C. The Gulf Petition and Litigation
20. The Gulf Petition. Alleging that the Gulf Coast is critically
important for migratory birds, Forest Conservation Council, American
Bird Conservancy, and Friends of the Earth (petitioners) filed in 2002
a ``Petition for National Environmental Policy Act Compliance'' asking
the Commission to, inter alia: (1) Implement public participation
procedures set forth in 40 CFR 1506.6 by providing notice and
opportunity to comment on all proposed ASR applications for the Gulf
Coast region; (2) commence preparation of an EIS evaluating, analyzing,
and mitigating the direct, indirect, and cumulative effects of all
past, present and reasonably foreseeable antenna structure
registrations on migratory birds in the Gulf Coast region; and (3)
initiate formal Section 7 ESA consultation with FWS with respect to the
impact of the Commission's ASR decisions on endangered and threatened
species in the Gulf Coast region. Forest Conservation Council, American
Bird Conservancy, and Friends of the Earth, Petition for National
Environmental Policy Act Compliance, submitted August 26, 2002 (Gulf
Petition).
21. The Gulf Memorandum Opinion and Order. In its 2006 Memorandum
Opinion and Order addressing the Gulf Petition, the Commission
dismissed that petition in part and denied it in part. Petition by
Forest Conservation Council, American Bird Conservancy and Friends of
the Earth for National Environmental Policy Act Compliance, Memorandum
Opinion and Order, 61 FR 4359 (February 6, 2006) (Gulf Memorandum
Opinion and Order). Of relevance here, the Commission declined to
implement new public notice procedures, declined to commence a
programmatic EIS, and denied the request to initiate formal Section 7
consultation on the cumulative effects that towers in the Gulf Coast
region have on endangered and threatened species. The Commission also
deferred to the ongoing Migratory Birds proceeding petitioners' request
that it take action under the Migratory Bird Treaty Act (MBTA), 16
U.S.C. 703-712, to reduce intentional and unintentional takes of
migratory birds.
22. The American Bird Conservancy Decision. In American Bird
Conservancy, the court affirmed the Commission's deferral of the MBTA
issues already under consideration in the ongoing nationwide Migratory
Birds proceeding. However, it vacated the NEPA and ESA portions of the
Gulf Memorandum Opinion and Order as well as the Commission's decision
not to implement new public notice procedures.
23. First, the court rejected the Commission's dismissal of
petitioners' request for an EIS. The court held that neither the lack
of specific evidence concerning the impact of towers on the
environment, nor the lack of consensus among scientists regarding the
impact of communications towers on migratory birds, was sufficient to
render a NEPA analysis unnecessary. Rather, because the court found
there is no real dispute that towers may have a significant
environmental impact, it directed that the Commission address
petitioners' request for a programmatic EIS based on a less stringent
threshold for NEPA analysis. Although petitioners had requested an EIS,
the court stated that the Commission could initially prepare an EA in
order to determine whether an EIS is required.
24. Second, the court vacated the Commission's refusal to engage in
programmatic consultation with FWS under the ESA. The court remanded
the issue, holding that the Commission had failed to describe what kind
of showing, short of petitioners conducting an EIS themselves, could
demonstrate sufficient environmental effects to
[[Page 3939]]
justify the programmatic consultation sought by petitioners.
25. Third, the court ordered the Commission on remand to determine
how it will provide notice of pending tower registration applications
that will ensure meaningful public involvement in implementing NEPA
procedures. The court noted that while the Commission's rules permit
interested persons to seek environmental review of a particular action
otherwise categorically excluded from environmental processing, its
process confers ``a hollow opportunity to participate in NEPA
procedures'' because ``the Commission provides public notice of
individual tower applications only after approving them * * * [and]
[i]nterested persons cannot request an EA for actions * * * already
completed.'' The court noted the ``suggest[ion] during oral argument
that a simple solution would be for the Commission to update its Web
site when it receives individual tower applications.''
D. Migratory Birds Rulemaking Proceeding
26. Meanwhile, the Commission had a related proceeding ongoing--the
Migratory Birds rulemaking. On August 20, 2003, the Commission had
issued the Migratory Birds NOI ``to gather comment and information on
the impact that communications towers may have on migratory birds.''
Effects of Communications Towers on Migratory Birds, Notice of Inquiry,
WT Docket No. 03-187, 68 FR 53696 (September 12, 2003) (Migratory Birds
NOI). While the Gulf Petition focused on the environmental effects of
registered towers in the Gulf Coast region, particularly with respect
to migratory birds, the Migratory Birds NOI (and the subsequent
rulemaking notice) addressed the effects of communications towers on
migratory birds nationwide. In response to the Migratory Birds NOI, the
Commission received a number of comments and reply comments that
referred to studies of past incidents of migratory birds colliding with
communications towers. To help the Commission evaluate these studies,
the Commission retained Avatar Environmental, LLC (Avatar), an
environmental risk consulting firm. After reviewing the scientific
studies referenced in the comments and reply comments, Avatar submitted
a report of its findings. See Notice of Inquiry Comment Review Avian/
Communication Tower Collisions, Final, Prepared for Federal
Communications Commission, by Avatar Environmental, LLC, WT Docket No.
03-187 (filed December 10, 2004) (Avatar Report).
27. After reviewing the comments and the Avatar Report, the
Commission in 2006 issued the Migratory Birds NPRM seeking comment on
whether it should adopt regulations specifically for the protection of
migratory birds nationwide. Effects of Communications Towers on
Migratory Birds, Notice of Proposed Rule Making, WT Docket No. 03-187,
71 FR 67510 November 22, 2006 (Migratory Birds NPRM). In particular,
the Commission sought comment on scientific and technical issues
relevant to the environmental effects of communications towers on
migratory birds, on its authority and responsibility to adopt
regulations specifically for the protection of migratory birds, and on
what scientifically supported measures it could take to reduce any such
impacts. It tentatively concluded that its obligation, under NEPA, to
identify and to take into account the environmental effects of actions
that it undertakes may provide a basis for the Commission to make the
requisite public interest determination under the Communications Act to
support regulations specifically for the protection of migratory birds.
The Commission also tentatively concluded that, for communications
towers subject to its Part 17 rules, the use of medium intensity white
strobe lights for nighttime conspicuity (i.e., visibility) is to be
considered the preferred system over red obstruction lighting systems
to the maximum extent possible without compromising safety. Finally, it
specifically sought comment on whether to amend Section 1.1307(a) to
routinely require environmental processing with respect to migratory
birds and, if so, whether such revisions should apply to all new tower
construction or only to antenna structures having certain physical
characteristics deemed most problematic in terms of potential
environmental impacts on migratory birds.
28. The Commission received more than 2400 comments and reply
comments in response to the Migratory Birds NPRM. In this Order, the
Commission does not take final action in the Migratory Birds
rulemaking, but rather defers such action until it is able to consider
the results of the programmatic EA and any subsequent EIS. The
Commission does, however, consider the record in that proceeding in
adopting an interim processing measure to reduce potential impacts on
migratory birds pending completion of the environmental analysis.
E. The Rulemaking Petitions and the Memorandum of Understanding
29. Petitions for Expedited Rulemaking. On May 2, 2008, CTIA--The
Wireless Association, the National Association of Broadcasters, the
National Association of Tower Erectors, and PCIA--The Wireless
Infrastructure Association (the Infrastructure Coalition) filed the
Infrastructure Coalition Petition. The Infrastructure Coalition
Petition asks the Commission to respond to the remand in American Bird
Conservancy by initiating a rulemaking to institute a notice, comment,
and approval process for ASR applications modeled after the process for
applications for assignments and transfers of authorizations. According
to the Infrastructure Coalition, the assignment and transfer process
rules were designed to minimize delays and reduce transaction costs,
and these goals apply to processing ASR applications. Further, the
Infrastructure Coalition Petition asks the Commission to apply Section
1.939 of the Commission's rules, 47 CFR 1.939, which establishes
criteria for filing a petition to deny, to objections to proposed ASR
structures in order to prevent frivolous objections.
30. Ten parties filed comments on the Infrastructure Coalition
Petition. Comments from communications providers and tower companies
generally support the Infrastructure Coalition Petition, with some
differences as to certain details. These commenters assert that the
Infrastructure Coalition's proposed rules reasonably balance the goals
of rapid deployment of wireless infrastructure and public involvement,
in compliance with the court's decision. Commenters representing
environmental protection groups, however, reject the rules and
procedures proposed by the Infrastructure Coalition as not ensuring
meaningful public involvement, and they ask for the cessation of
registration of all antenna structures until the Commission complies
with NEPA.
31. On April 14, 2009, American Bird Conservancy, Defenders of
Wildlife, and National Audubon Society (Conservation Groups) filed the
Conservation Groups Petition. The Conservation Groups Petition asks the
Commission to adopt new rules on an expedited basis to comply with
NEPA, the MBTA, and the court's mandate in American Bird Conservancy.
It asks the Commission to: amend the NEPA regulations to ensure that
only Commission actions that have no significant environmental effects
individually or cumulatively are categorically excluded; prepare a
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programmatic EIS addressing the environmental consequences of its ASR
program on migratory birds, their habitats, and the environment;
promulgate rules to clarify the roles, responsibilities, and
obligations of the Commission, applicants, and non-Federal
representatives in complying with the ESA; consult with FWS on the ASR
program regarding all effects of antenna structures on endangered and
threatened species; and complete the rulemaking in WT Docket No. 03-187
to adopt measures to reduce migratory bird deaths in compliance with
the MBTA. Citing 12 sources by 14 authors, the Conservation Groups
Petition argues that communications towers have impacts on migratory
birds that are both demonstrable and avoidable. The Conservation Groups
Petition also points out specific instances in which FWS has requested
that the Commission undertake a programmatic EIS with regard to the ASR
process or otherwise requested that the Commission take action to
mitigate the impact of communications towers on migratory birds.
32. The Commission received 19 comments and four replies in
response to the Conservation Groups Petition. Those conservations
organizations that filed comments generally support the Conservation
Groups Petition. Opponents of the Conservation Groups Petition argue
that communications towers do not have a significant environmental
impact on migratory birds, and they challenge the validity of the
estimates and evidence submitted in the Conservation Groups Petition.
On reply, the Conservation Groups cite additional studies that they
state establish a link between bird deaths and towers.
33. Memorandum Of Understanding. On May 4, 2010, the Infrastructure
Coalition and the Conservation Groups filed a Memorandum of
Understanding (MOU) setting forth their joint proposal as to how the
Commission could best fulfill its environmental responsibilities under
NEPA with respect to towers during the interim period while it
considers permanent rule changes to implement the court's decision in
American Bird Conservancy. Under this joint proposal, ASR applications
for new towers taller than 450 feet above ground level (AGL) would
require an EA for avian effects and a public notice and an opportunity
to comment. New towers of a height of 351 to 450 feet AGL or ASR
applications involving a change of lighting system from a more
preferred to a less preferred FAA Lighting Style would not initially
require an EA based on avian concerns, but would be placed on public
notice, and the Commission would determine, after reviewing the
application and any comments filed in response to the public notice,
whether to require an EA. Under the MOU, no EA would be required for
ASR applications for new towers with a height of 350 feet AGL or less,
replacement towers, minor applications, and lighting system changes
from a less preferred to a more preferred FAA Lighting Style. The
parties to the MOU are divided as to whether public notice should be
required for these applications.
F. The Programmatic Environmental Assessment
34. In American Bird Conservancy, the court vacated the
Commission's denial of the Gulf Petition's request for a programmatic
EIS. In compliance with the court's decision, Commission staff, in
September 2010, began work on a nationwide programmatic environmental
assessment, which will provide a comprehensive analysis upon which to
base the Commission's consideration of the environmental effects of
future proposed towers. The programmatic EA will cover the entire
United States, not merely the Gulf Coast, because migratory bird
pathways are dispersed throughout the continental United States, and
because similar environmental effects may occur nationwide. On August
26, 2011, the Wireless Telecommunications Bureau released and sought
comments on a draft programmatic EA. Wireless Telecommunications Bureau
Seeks Comment and Announces Public Meeting on its Draft Programmatic
Environmental Assessment of the Antenna Structure Registration Program,
Public Notice, WT Docket Nos. 08-61, 03-187, 76 FR 54422 (September 1,
2011).
35. The programmatic EA will provide the basis for the agency to
determine whether an EIS is warranted. The Commission will commence the
preparation of a programmatic EIS if the programmatic EA demonstrates
that ``any `significant' environmental impacts might result from the
proposed agency action. * * *'' American Bird Conservancy, 516 F.3d at
1034. Otherwise, the Commission will make a Finding of no Significant
Impact and will terminate the programmatic environmental review. See 47
CFR 1.1308(d). As set forth in the draft programmatic EA, in
determining whether the programmatic EA supports a FONSI or whether an
EIS is required, the Commission will consider whether the evidence
enables it to identify specific tower characteristics (e.g., tower
height, structure, lighting, or location) that are likely to cause an
adverse environmental impact on migratory birds, whether requiring
site-specific environmental reviews for such towers would sufficiently
address any adverse environmental impact that registered towers would
otherwise have, and whether there are any other appropriate measures
that may substantially mitigate and minimize any adverse environmental
impacts.
36. In response to the court's remand and in conjunction with the
programmatic EA, the Commission also recently initiated programmatic
consultation with FWS under Section 7(a)(1) of the ESA, 16 U.S.C.
1536(a)(1), regarding the effects of registered towers on threatened
and endangered species and designated or proposed critical habitats.
The Commission already incorporates and implements in Section 1.1307(a)
of the Commission's rules its responsibility, under Section 7 of the
ESA, to ensure, in consultation with the Secretary of the Interior,
that individual proposed Commission actions are not likely to
jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of
designated critical habitat of such species. However, the court in
American Bird Conservancy additionally required the Commission to
address what environmental showing would require formal programmatic
consultation with FWS over the cumulative effects of registered towers.
FWS recommended, and the Wireless Telecommunications Bureau agreed, to
proceed by means of a conservation review under Section 7(a)(1).
Through this conservation review, FWS will evaluate the degree to which
the ASR Program contributes to furthering the purposes of the ESA, and
make possible recommendations to improve or enhance this contribution.
The conservation review will also identify any subsequent formal
consultation under Section 7(a)(2) that may be required for tower
sites, either individually or in appropriate groupings. The
conservation review will focus on procedures instituted at a
programmatic level to promote the conservation of listed species and to
avoid or minimize any adverse effects of the ASR program to these
species or their habitats.
III. Discussion
37. Below, the Commission first describes a new notice regime to
afford members of the public an opportunity to comment on the
environmental effects of prospective ASR applications. The Commission
then discusses an interim
[[Page 3941]]
procedural requirement under which an EA will be filed for all proposed
registered towers over 450 feet in height.
38. The Commission has consulted with CEQ regarding these rules and
procedures as required under CEQ's rules. 40 CFR 1507.3(a). Under CEQ's
rules, before adopting procedures implementing NEPA an agency must
publish its proposed procedures in the Federal Register for comment,
and CEQ must determine that the procedures conform with NEPA and CEQ's
regulations. 40 CFR 1506.6(a), 1507.3(a). In compliance with these
rules, the Wireless Telecommunications Bureau issued a Public Notice
inviting comment on the draft rules and interim procedures. Wireless
Telecommunications Bureau Invites Comment on Draft Environmental Notice
Requirements and Interim Procedures Affecting the Antenna Structure
Registration Program, WT Docket Nos. 08-61, 03-187, Public Notice, 76
FR 18679 (April 5, 2011) (Draft Rules Public Notice). Thirteen formal
comments were received in response to the Draft Rules Public Notice. In
addition, Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP, on
behalf of its affected clients, submitted a Petition for
Reconsideration of the Draft Rules Public Notice (Blooston Commenters
Petition). The Commission dismisses the Blooston Commenters Petition
because the Draft Rules Public Notice is not a final action subject to
reconsideration. See 47 CFR 1.106(a)(1). Blooston Commenters argue that
the Draft Rules Public Notice represents a final decision not to follow
notice and comment procedures that it says are required under the
Administrative Procedure Act (APA), 5 U.S.C. 553, and Sections
1.412(a)(1) and 1.415(c) of the Commission's rules, 47 CFR 1.412(a)(1),
1.415(c). However, the APA requires these procedures as a precondition
for adopting certain rules. Since the Draft Rules Public Notice adopted
no rules, it does not constitute a final action. Nevertheless, the
Commission treats the Blooston Commenters Petition as comments on the
Draft Rules Public Notice and addresses its arguments below.
39. The Commission's final rules take into account the comments
submitted in response to the Draft Rules Public Notice. None of the
comments addresses the conformity of the environmental notice and
interim processing rules with NEPA and CEQ's regulations. On August 1,
2011, CEQ advised that the rules the Commission is adopting in this
Order conform with NEPA and CEQ's regulations.
A. The Environmental Notification Process
40. In this Order, the Commission adopts public notice rules and
establishes a pre-ASR filing environmental notification process so that
members of the public have an avenue for raising environmental
concerns, and the agency has a mechanism for addressing those concerns,
before an antenna structure registration application is completed and
filed with the Commission. We thereby provide a meaningful opportunity
for interested parties to seek an EA for actions that do not ordinarily
require an EA, as required by the court in American Bird Conservancy.
41. Under the process that the Commission adopts today, described
in detail below and in a Public Notice that will be issued by the
Wireless Telecommunications Bureau before the environmental
notification process becomes operational, each prospective applicant
for a new tower that requires antenna structure registration, or for a
modification of a registered tower that is substantial enough to
potentially have a significant environmental impact, must initially
submit into the ASR system a partially completed FCC Form 854 that
includes information about the proposed antenna structure but is not
yet complete for filing. This will consist substantially of information
that is already required on Form 854, augmented to include the type of
tower structure and the anticipated lighting. The applicant must also
provide local notice of its proposed tower through publication in a
newspaper or other appropriate means, such as by following the local
zoning public notice process. Applicants may provide local notice under
both this process and the Commission's procedures implementing Section
106 of the National Historic Preservation Act (NHPA), 16 U.S.C. 470f,
through a single publication. See 47 CFR part 1, appendix C, Section V.
42. After local public notice has been provided, the Commission
will post the partially completed FCC Form 854 on its ASR Web site in
searchable form for 30 days. Members of the public will have an
opportunity to file a request for further environmental review
(Request) of the proposed tower during this 30-day period. Oppositions
will be due 10 calendar days after expiration of the time for filing
Requests. Replies will be due 5 business days after expiration of the
time for filing oppositions. Oppositions and replies must be served on
the parties to the proceeding.
43. Upon completion of the 30-day notice period, the Commission
staff, after reviewing any Requests, will notify the applicant whether
an EA is required under Section 1.1307(c) or (d) of the Commission's
rules. If no EA is required based on the partially completed Form 854
and any Requests, and if the applicant has determined that no EA is
otherwise required under Section 1.1307(a) or (b), it may then update
and file Form 854 certifying that the tower will have no significant
environmental impact. At this point, if all other required information
has been provided, the Form 854 will be deemed complete and can be
processed accordingly.
44. The Commission recognizes that cases may arise that involve
emergency situations, such as where temporary towers need to be built
quickly to restore lost communications. Such situations often require
grants of special temporary authority (STAs). In such cases, upon an
appropriate showing and at the request of the applicant, the processing
Bureau may waive or postpone this notice requirement. The Bureau shall
ordinarily require in such cases that notice be provided within a short
period after authorization or construction, unless the Bureau concludes
in a particular case that provision of such notice would be
impracticable or not in the public interest. In appropriate
circumstances, where a temporary facility constructed in an emergency
situation will be replaced by a permanent tower, environmental
notification for the temporary and permanent towers may be combined.
45. In addition, after the effective date of these rules, the pre-
application process will also become the procedural vehicle for filing
and reviewing EAs for registered towers that require an EA. The
applicant either may include an EA when it first initiates the
environmental notification process if it has determined that the tower
meets one of the criteria set forth in Section 1.1307(a) or (b) of the
Commission's rules, or it may subsequently submit an EA if the
applicant or the Commission later determines that an EA is necessary.
The EA will then be posted on the ASR Web site, and members of the
public will have the opportunity to object in much the same manner as
they can file petitions to deny ASR applications filed with EAs today.
However, local notice will be required only once for any tower unless
there is a change in location, significant increase in height, or other
change in parameters that may cause the tower to have a greater
environmental impact. After considering the EA and any Requests, the
Commission will
[[Page 3942]]
either issue a FONSI, require amendments to the EA, or determine that
an EIS is needed. Upon issuance of a FONSI, the applicant may complete
the Form 854 filing and certify no significant environmental impact.
46. The Commission takes these actions pursuant to its ``wide
discretion in fashioning its own procedures'' to implement its
environmental obligations. American Bird Conservancy, 516 F.3d at 1035.
Because the Commission is only changing its procedures governing the
submission of certain applications, these rule changes qualify for the
procedural exception to the APA's requirements of notice and an
opportunity for public comment. 5 U.S.C. 553(b)(A). For the same
reason, the rules and interim procedures adopted herein do not require
the preparation of a Regulatory Flexibility Analysis pursuant to the
Regulatory Flexibility Act (RFA). 5 U.S.C. 604(a). ``[T]he `critical
feature' of the procedural exception `is that it covers agency actions
that do not themselves alter the rights or interests of parties,
although it may alter the manner in which the parties present
themselves or their viewpoints to the agency.' '' JEM Broadcasting Co.
v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). In other words, whether or
not a rule has a ``substantial impact,'' it qualifies for the
procedural exception where, as here, it does not ``purport to regulate
or limit [parties'] substantive rights.'' Public Citizen v. Dep't. of
State, 276 F.3d 634, 640 (D.C. Cir. 2002); James V. Hurson Associates,
Inc. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000). For example, in
JEM Broadcasting Co., the Court of Appeals held that the Commission's
``hard look'' rules requiring dismissal of defective applications after
the expiration of a fixed filing period with no opportunity to amend
were procedural rules that were exempt from the notice and comment
requirements because the rules ``did not change the substantive
standards by which the FCC evaluates license applications.'' JEM
Broadcasting Co. v. FCC, 22 F.3d at 327.
47. Like the ``hard look'' rules in JEM Broadcasting Co., the
public notice rules adopted in this Order govern the processing of
certain types of applications without affecting the substantive
standards by which those applications are evaluated. The public notice
rules do not ``put[ ] a stamp of [agency] approval or disapproval on a
given type of behavior'' or ``encode[ ] a substantive value judgment.''
Chamber of Commerce of U.S. v. U.S. Dep't of Labor, 174 F.3d 206, 211
(D.C. Cir. 1999); Public Citizen v. Dep't of State, 276 F.3d at 640.
Instead, they merely require a tower proponent to notify the Commission
and the local community of information about its proposal in advance of
filing the completed ASR application with the Commission. The tower
proponent will do so by submitting a partially completed ASR
application consisting mostly of information that is already required
on the existing Form 854. In the case where an environmental
notification has an EA attached, the information is substantially the
same as currently required for EAs filed with ASR applications.
Although Blooston Commenters and National Telecommunications
Cooperative Association state that the draft rules afford third parties
new substantive rights to receive notice of ASR applications and to
request further environmental processing, the right of the public to
request environmental processing is already established in the
Commission's rules. The notice requirements that the Commission adopts
only enables members of the public more fully to exercise their
existing rights of participation, consistent with the D.C. Circuit's
opinion in American Bird Conservancy. For similar reasons, the
Commission rejects Blooston Commenters' argument that notice and
comment rulemaking, including an opportunity to file reply comments, is
required under Sections 1.412(a)(1) and 1.415(c) of the Commission's
rules. Section 1.412(b)(5) of the rules expressly states: ``Rule
changes (including adoption, amendment, or repeal of a rule or rules)
relating to the following matters will ordinarily be adopted without
prior notice: * * * (5) Rules of Commission organization, procedure, or
practice.'' The rule changes adopted in this Order relate to matters of
Commission procedure, and the Wireless Telecommunications Bureau sought
comment on draft rules not due to APA requirements, but to comply with
Section 1507.3 of CEQ's rules. Therefore, these rule changes are
outside the scope of Section 1.412(a)(1) as well as Section 1.415.
48. The Commission also notes that the record in this proceeding
includes two petitions for expedited rulemaking, numerous pleadings in
response to two Public Notices seeking comment on the two petitions,
and several ex parte filings. In addition, in the Draft Rules Public
Notice, the Wireless Telecommunications Bureau invited and received
public comment on draft rules and interim procedures in this
proceeding, as required by CEQ's rules. As under the APA's notice-and-
comment procedures, parties have had a full opportunity to participate
in the Commission's decisionmaking process. Furthermore, the Commission
takes the suggestions in the petitions, as well as other filings in
this proceeding, into account in this Order.
49. In this Section, the Commission begins by setting out the
actions subject to the new environmental notification process. Second,
the Commission discusses the timing of the environmental notification
process. Third, the Commission explains its decision to require both
local and national notice. Fourth, the Commission discusses the timing
and pleading standards governing Requests for further environmental
review. Fifth, the Commission discusses applications that require a
service-specific application in addition to FCC Form 854. Finally, the
Commission discusses the treatment of applications that are pending on
the effective date of the new environmental notification rules and
procedures.
1. Actions Subject to Notice
50. National applicability. The environmental notification process
adopted herein will apply throughout the nation regardless of the
geographic location of the proposed antenna structure for which an ASR
application must be filed. Although the Gulf Petition and the court's
resulting decision applied specifically to communications towers in the
Gulf Coast region, the logic of the court's analysis, which hinged on
the Commission's failure to provide public notice prior to grant of
pending ASR applications, is not confined to that region. The concern
that the current notice regime effectively deprives interested persons
of the opportunity conferred by Section 1.1307(c) encompasses any
proposed tower (and some types of modifications to an existing tower)
that is subject to registration under the Commission's part 17 rules.
The Commission finds no basis to limit the environmental notification
process adopted herein to the Gulf Coast towers at issue in the court
case.
51. Types of actions subject to notice. Under the new environmental
notification process, notice will be required for new towers and
modifications that could have a significant environmental impact, but
not for administrative changes and modifications that are unlikely to
have a significant environmental impact. The environmental notification
process is necessary to effectuate fully the opportunity conferred by
Section 1.1307(c) for interested persons to allege
[[Page 3943]]
that an EA should be prepared for an otherwise categorically excluded
ASR application due to ``circumstances necessitating environmental
consideration in the decision-making process.'' The notice provided
through this process also serves to facilitate meaningful public
participation in the NEPA process for proposed towers that require an
EA. The environmental notification process must therefore be completed
for all types of ASR applications that could potentially have a
significant environmental impact.
52. Consistent with this principle, the Commission applies the
environmental notification process to all ASR applications for new
towers (except as described in paragraph 57, infra). The Commission
rejects the Infrastructure Coalition's proposal not to require public
notice for an ASR application for a tower 350 feet or less in height
for which the applicant believes an EA is not required, as well as
other suggestions to exclude towers from the notice requirement based
on their height or lack of lighting. While the Commission recognizes
that shorter towers are less likely to have significant environmental
effects, including effects on migratory birds, than taller towers,
nothing in the court's opinion, NEPA, or CEQ's implementing rules would
support dispensing with public notice, even on an interim basis, for
any ASR action that reasonably might have a significant environmental
impact. Based on currently available evidence, the Commission cannot
ignore the possibility that a registered tower over 200 feet in height,
or a tower under 200 feet that requires FAA notification, may have a
significant environmental impact that is not otherwise captured in the
Commission's rules. The Commission therefore applies the environmental
notification requirement to registered towers under 350 feet in height.
Although the Commission decides that such towers will be placed on
public notice, the Commission contemplates that a particularly clear
showing would be required to demonstrate that such towers may have
effects on migratory birds. For similar reasons, the Commission also
declines to adopt exemptions for facilities used in connection with
distributed antenna system (DAS) networks that otherwise require
registration, or for state-owned towers under 450 feet in height AGL
that are used for public safety purposes. While Virginia State Police
suggests security concerns about identifying the specific locations of
such towers, the Commission notes that the coordinates of these towers
are public information in the ASR database and that local notice of
these proposed towers is already required for purposes of NHPA
compliance under the Nationwide Programmatic Agreement, 47 CFR part 1,
appendix C, sections V.B., V.C. No commenter expresses concern about
those existing disclosures.
53. FCC Forms 854 that are submitted for purely administrative
purposes or to report modifications of a nature that do not have a
potentially significant environmental effect will not be subject to the
environmental notification process. Thus, where an applicant is
required to submit an FCC Form 854 only for notification purposes, such
as to report a change in ownership or contact information, the
dismantlement of a registered tower, tower repair, replacement of tower
parts, or any modification that does not involve the physical
structure, lighting, or geographic location of a registered antenna
structure, the applicant will not have to complete the environmental
notification process prior to submitting the Form 854. Instead, the
applicant will be able to indicate that it is submitting the
application form only to effect an administrative change or
notification, for which the pre-application environmental notification
process is not required.
54. In the case of replacement towers or modifications to existing
towers, including collocations on existing towers or other structures,
the applicability of the environmental notification process will depend
upon the nature of any change to the existing structure. The MOU
defines a Replacement Tower for which public notice should not be
required as a communications tower the construction of which does not
involve a substantial increase in size to the tower it is replacing, as
defined in Section III.B. of the Nationwide Programmatic Agreement for
Review of Effects on Historic Properties for Certain Undertakings
Approved by the Federal Communications Commission (NPA), 47 CFR part 1,
appendix C, or construction or excavation more than 30 feet beyond the
existing tower property. Consistent with this recommendation, as an
interim measure pending completion of its programmatic environmental
analysis, the Commission will not require the environmental
notification process for any replacement tower at the same location as
an existing tower, not involving a change in lighting, so long as it
does not involve a substantial increase in size under Section III.B of
the NPA or construction or excavation more than 30 feet beyond the
tower property. The Commission considers a replacement tower located
less than one second longitude and latitude from an existing tower
which does not require a new aeronautical study with an FAA
determination to be at the same location. Similarly, the Commission
will not require notice where an antenna is being placed on an existing
tower or non-tower structure and the placement of the antenna does not
involve a substantial increase in size or excavation more than 30 feet
beyond the property. If a proposed tower replaces another tower but
involves a substantial increase in size or construction or excavation
more than thirty feet beyond the tower property, it is not exempted
from the environmental notification process as a replacement tower.
Additionally, where an EA is required to be filed for a replacement
tower under Section 1.1307(a) or (b) of the Commission's rules or if
the Bureau determines that an EA is required under Section 1.1307(c) or
(d) of the Commission's rules, such a tower is not exempted from the
environmental notification process.
55. The notice regime for ASR applications that involve changes in
lighting to existing towers or replacement towers will depend on the
nature of the lighting change. The parties to the MOU developed a
ranking of FAA Lighting Styles based on their likely effect on
migratory birds and recommended that public notice be required for a
change to a less preferred but not to a more preferred FAA Lighting
Style. However, recommendations from the Department of Interior Office
of Environmental Policy and Compliance and FWS based on recent
scientific literature strongly suggest that L-810 steady-burning lights
pose the greatest danger of migratory bird mortality and that the
differences among styles of flashing or blinking lights are not
statistically significant. Therefore, the Commission declines Blooston
Commenters' proposal to base decisions regarding environmental
processing on whether red or white lights are used. There is
insufficient evidence in the record that the color of lighting is a
critical factor in determining avian mortality. In addition,
Conservation Groups recommend that the Commission verify the continuing
accuracy of the order of tower lighting styles specified in the MOU.
Furthermore, the FAA may soon consider changes to Advisory Circular AC
70/7460 that would permit use of red flashing or blinking lights
without steady-burning L-810s. In these circumstances, pending
completion of its programmatic environmental
[[Page 3944]]
analysis, the Commission will replace the ranking of FAA Lighting
Styles in the MOU with a three-tiered system, which ranks styles from
most preferred to least depending on whether they employ: (1) No
lights; (2) no red steady lights; or (3) red steady lights. The ranking
focuses on use of red steady lights because none of the FAA Lighting
Styles use white steady lights, only white medium intensity or high
intensity flashing lights. The environmental notification process will
not be required where the lighting is changed to a lighting style that
is more preferred or within the same tier of this ranking system, but
will be required where the lighting is changed to a less preferred
lighting style. As recognized in the MOU, any change in lighting must
be consistent with the applicable version of FAA Advisory Circular AC
70/7460, FAA policies, and local zoning requirements, whether the
change is to a less preferred lighting style or to a more preferred
lighting style. Furthermore, use of high intensity white lights in a
residentially zoned neighborhood requires an EA under the Bureau
existing rules. 47 CFR 1.1307(a)(8).
56. Where information pertaining to a prospective antenna structure
registration is amended after environmental notification but prior to
grant of an ASR application, the Commission generally will require a
new environmental notification only if the amendment is of a nature
that would have required environmental notification in the context of
an application for replacement or modification of an existing tower. To
prevent abuse, however, the Commission will require the applicant to
provide a new environmental notification to the public for any
amendment that increases the proposed tower height, even if it does not
constitute a substantial increase in size.
57. Exception for certain towers reviewed by other Federal
agencies. The Commission provides a very limited exemption from the
environmental notification process for antenna structures to be located
on Federal land. CEQ regulations provide for the designation of a lead
agency and one or more cooperating agencies when more than one Federal
agency is involved in a proposed action. See 40 CFR 1508.16 (lead
agency) and 40 CFR 1508.5 (cooperating agency). Consistent with these
regulations, Section 1.1311(e) of the Commission's rules provides that
an EA need not be submitted to the Commission if another Federal agency
has assumed responsibility for determining whether the facility will
have a significant environmental effect and, if it will, for invoking
the EIS process. For example, if a proposed facility that requires
registration in the ASR system is to be located on Federal land, the
landholding agency ordinarily functions as the lead agency and the
Commission does not perform an environmental review except as necessary
to ensure that the EA prepared by the lead agency satisfies the
Commission's responsibility. The Commission cautions that the exemption
is limited in scope only to towers located on Federal land, for which
the landholding agency routinely assumes lead agency responsibilities.
The exemption will not routinely apply in other situations where
proposed antenna structures must secure environmental clearance from
other Federal agencies. In those circumstances, the Commission cannot
assume the other agency to be the lead agency. Rather, as part of the
process of reviewing a Request filed in response to the pre-application
public notice, the Commission will consider whether ongoing NEPA review
of the proposed antenna structure by another Federal agency relieves
the applicant of having to submit an EA to the Commission under Section
1.1311(e). The Commission delegates to the Wireless Telecommunications
Bureau authority to enter into agreements with other Federal agencies
that would designate the other agency as the lead agency for specified
categories of actions and thereby obviate the need for the Commission's
environmental notification process. We decline to adopt an exemption
from notice requirements for towers that have already been reviewed by
FWS, as requested by Verizon Wireless. The Commission's environmental
notification process and environmental processing are not limited to
concerns that would be addressed by FWS.
58. Limitation to towers subject to antenna structure registration.
The Commission clarifies that the environmental notification process
will be applicable only to towers that are registered pursuant to Part
17 of its rules, including towers constructed by non-licensee tower
companies that do not require FAA notification but that are registered
as the vehicle for filing an EA. The Commission notes, however, that
towers that are not subject to registration under Part 17 of the rules
must comply with the Commission's environmental rules. Objections based
on environmental considerations to such non-ASR applications remain
subject to the petition to deny standard specified in Section
1.1313(a). The Commission will also continue to entertain informal
objections to such construction based on environmental considerations
pursuant to Section 1.1313(b).
2. Timing of Environmental Notice
59. Applicants will be required to complete environmental
notification before filing their completed ASR applications, and may do
so before receiving the FAA's No Hazard Determination. (A prospective
applicant that submits its environmental notification information
before receiving a No Hazard Determination should specify the lighting
that it expects will be prescribed for the tower. In the event the FAA
specifies a less preferred lighting style, it will have to provide a
second notice with the corrected information.) Thus, the environmental
notification process constitutes a notification, not a certification,
and submission of the partially completed Form 854 without an EA is not
a representation to the Commission that the tower will have no
significant environmental effects. This certification will be required
when the environmental notification process is complete and the
applicant files its completed FCC Form 854. Completing the pre-ASR
filing environmental notification process as an initial step before a
complete ASR application can be filed with the Commission ensures that
interested persons have a timely opportunity to participate in a manner
that can inform the Commission's decision-making with respect to an
individual ASR application. This is also consistent with Section 1501.2
of the CEQ regulations, which generally directs that the Federal agency
commence the NEPA process as early as possible and before there has
been any inadvertent, irretrievable commitment of resources. 40 CFR
1501.2(d)(3). Earlier completion of the notification process further
serves the public interest because it requires less change to the
automated ASR system, upon which the FAA currently relies to ensure air
navigation safety, and that has operated for more than a decade
efficiently and without material error. Moreover, from a processing
standpoint, applicants can complete the notice process simultaneously
with other processes, including environmental reviews that may require
consultation with other Federal agencies, obtaining the FAA No Hazard
Determination, and local zoning. Therefore, the environmental
notification process will not ordinarily cause additional delays unless
environmental issues are raised.
[[Page 3945]]
60. In addition, under the new process EAs for proposed registered
towers will be filed, made available for public comment, and reviewed
prior to filing of the ASR application. Accordingly, the 30-day comment
period will be announced on the Commission's ASR Web site instead of
through a notice published in the Daily Digest. To avoid any confusion,
for an initial period of six months, the Commission will place a note
in the Daily Digest weekly advising that notice of all proposed
registered towers, along with any associated EA, is now provided on the
Commission's ASR Web site. Otherwise, the processing of EAs for
registered towers will be substantially the same as today. Because the
environmental notification process the Commission adopts today
expressly seeks environmental comments and provides pertinent details
of the proposed tower, it makes it easier for interested members of the
public to access pertinent information about an EA, and thus better
comports with the objectives underlying NEPA than the non-specific
Public Notices that currently are published in the Daily Digest.
Moreover, apart from encouraging public involvement, a uniform system
of environmental processing for all ASR applications, whether or not
EAs are required pursuant to Section 1.1307(a) or (b), will be easier
for the Commission to administer and less confusing to applicants.
3. National and Local Notice
61. The Commission requires both national and local notice for
towers that must be registered in the ASR system in order fully to
inform all parties that may be interested in or affected by the
environmental consequences of a proposed tower. The Commission
recognizes that the environmental effects of a specific proposed tower
construction may be of national concern, of local concern, or of both
national and local concern. Conservation groups and some industry
parties have urged that the Commission adopt national notice, while
other industry commenters have suggested that the Commission adopt
local notice. Their reasons in favor of one approach or another are
discussed here, but in effect those reasons support using both forms of
notice.
62. National notice provided online at the Commission's Web site
was an approach suggested by the American Bird Conservancy court. The
Commission finds that the ASR Web site is an efficient, efficacious
means of providing notice to agencies and persons outside of the local
community, including national environmental groups, that may have
regional or national perspectives as to the environmental values of
proposed antenna structures. In particular, national notice will aid in
informing bird watchers who are not located near a proposed tower but
who may be affected by the harm it would cause to migrating birds,
given that migratory birds are by definition transient. The web-based
process that the Commission is creating will provide national
accessibility, result in the creation of an electronic database, and
reduce the potential for human error and application backlogs. The
Commission declines to adopt the suggestion of Southern Company
Services, Inc. (Southern) that instead of requiring applicants to
submit a preliminary Form 854 to commence the environmental
notification process, the FCC should provide a link to the FAA's Web
site so that interested parties can review the information available on
the FAA Web site and file any petitions based on that information.
Southern has failed to demonstrate that a link to the FAA's information
about towers submitted for aeronautical study is a practical means of
providing the public sufficient notice regarding proposed towers, in a
manner that can be accessed easily and understood by the public. This
broadly inclusive approach to notice and comment for NEPA purposes
before a complete application is filed is not necessarily determinative
of which individuals and/or agencies will have standing to participate
in proceedings relating to the application. A variety of factors,
including the environmental concern in question, will factor into that
analysis.
63. Local notice complements the broad reach of national notice by
enabling persons likely to be directly affected by the potential
environmental effects of proposed antenna structures at specific
locations to raise concerns of which national entities may not be
aware. It also reaches those persons or entities without an
institutional concern in safeguarding a particular aspect of the
environment but with a potential interest in the effects of tower
sitings in their immediate communities. The Commission has successfully
implemented local notice for historic preservation review and for radio
broadcast applications, and the local notice requirements the
Commission promulgates today are modeled after those regimes. See 47
CFR part 1, appendix C, sections V.B, V.C; 47 CFR 73.3580(b), (f).
64. The Commission finds that by requiring both local and national
notice, it can best meet its statutory responsibility regarding the
development of procedures that incorporate environmental considerations
into agency decision-making. 42 U.S.C. 4331(b), 4332(2)(B). In
particular, these requirements effectuate the mandate of Section
1506.6(b) of the CEQ regulations that Federal agencies shall ``provide
public notice of NEPA-related hearings, public meetings, and the
availability of environmental documents so as to inform those persons
and agencies that may be interested or affected.'' 40 CFR 1506.6(b).
CEQ has further clarified that ``[t]he objective is to notify all
interested or affected parties,'' and that ``[a] combination of methods
may be used to give notice.'' Forty Most Asked Questions Concerning
CEQ's National Environmental Policy Act Regulations, 46 FR 18026 (March
23, 1981). Although CEQ's guidance does not identify notifications of
proposed categorically excluded actions as ``environmental documents,''
it does include EAs, and the Commission concludes that providing
effective public notice of proposed towers before an EA or an
environmental certification has been submitted is within the intent of
the regulation. In this regard, the Commission's dual notice
requirement will enable more interested persons to raise relevant
environmental concerns regarding ASR applications than would be
achieved with either a national notice or local notice alone. The
requirement thus serves the public interest under the Communications
Act by ensuring that the agency complies fully with NEPA without
unnecessarily prolonging the processing of ASR applications.
65. In sum, the Commission will require prospective ASR applicants
to provide local notice of their proposals, either by publication in a
local newspaper of general circulation or by other appropriate means.
The Commission will also post notice of each prospective application on
its Web site on the date requested by the applicant, which must be on
or after the date the applicant provides local notice. Interested
parties will have an opportunity to respond to these notices by filing
Requests for further environmental review with the Commission. By
requesting the applicant to specify the date for national notice, the
Commission allows applicants to coordinate the local and national
notice periods as closely as possible, while also assuring that the
[[Page 3946]]
public has at least 30 days from the date of local notice to file any
Requests for further environmental processing. While the Commission
expects to post notices on its Web site on the date requested by the
applicant, in the event a posting is delayed, parties will nonetheless
have 30 days from the actual date of national notice on the
Commission's Web site to file any Requests.
4. Public Comment on Environmental Notifications
66. An interested member of the public who believes that a proposed
tower (including a covered tower modification) may have a significant
impact on the environment may submit a Request for further
environmental review to the Commission pursuant to Section 1.1307(c) of
the Commission's rules. The Request must be received by the Commission
within 30 days after notice of the proposed tower both has been
provided locally and has been made available nationally through the ASR
Web site. The time period will be computed according to the general
rule prescribed in Section 1.4(c) of the Commission's rules. Requests
will be subject to the pleading standard that is set forth in Section
1.1307(c) of the Commission's rules. Late pleadings or pleadings that
do not meet the standards in Section 1.1307(c) may be subject to
dismissal.
67. In setting the period to file a Request at 30 days, the
Commission applies to all ASR filings subject to the environmental
notification process the same time period that is currently in place
for challenges to ASR filings with EAs. The Commission rejects the
Infrastructure Coalition's proposal to set the period to object at 14
days, as well as proposals by other commenters to set the time period
at 15 to 20 days, as the Commission finds that such a timeframe is
inadequate to allow for meaningful public participation in this
context. At the same time, the Commission rejects the 60-day comment
period proposed by the Conservation Groups. The Commission does not
believe that interested parties should need that much time to file
comments, particularly as it does not require the objecting party to
include a comprehensive study of impacts to evaluate whether the
requirements of applicable environmental laws are properly met. Rather,
as discussed below, it is sufficient that a Request ``set[s] forth in
detail the reasons justifying or circumstances necessitating
environmental consideration in the decision-making process.'' 47 CFR
1.1307(c). Therefore, the Commission concludes that a 60-day comment
period would unnecessarily obstruct the timely deployment of services
while providing minimal benefit.
68. Pursuant to Section 1.1307(c) of the Commission's rules, a
request for further environmental processing of an otherwise
categorically excluded proposed action must ``set[] forth in detail the
reasons justifying or circumstances necessitating environmental
consideration in the decision-making process.'' In addition, Section
1.1307(c) cross-references Section 1.1313 of the rules. Section
1.1313(a) provides that ``[i]n the case of an application to which
section 309(b) of the Communications Act applies, objections based on
environmental considerations shall be filed as petitions to deny.''
This means, among other things, that the objection must include
``specific allegations of fact sufficient to make a prima facie showing
that the petitioner is a party in interest and that a grant of the
application would be consistent with the public interest, convenience,
and necessity.'' See 47 CFR 1.939(d). Section 1.1313(b) provides that
informal objections based on environmental considerations must be filed
prior to grant of the relevant construction permit or other
authorization.
69. In its Petition, the Infrastructure Coalition asks the
Commission to require that any objection on environmental grounds filed
against an ASR application must be filed as a petition to deny under
Section 1.1313(a). It argues that such procedures are necessary to
prevent frivolous objections. Several commenters representing licensees
and tower owners support the Infrastructure Coalition's petition. The
Conservation Groups, however, oppose application of the petition to
deny standard to these objections, arguing that it would limit the
public's ability to participate in the NEPA process.
70. The Commission declines to apply the petition to deny standard
to Requests for further environmental review of prospective registered
towers. First, Section 1.1313(a) by its terms does not apply to such
Requests. Section 1.1313(a) encompasses objections to applications to
which Section 309(b) of the Communications Act applies; i.e.,
applications for an instrument of authorization for a station in the
broadcasting or common carrier services, or in certain other services
if the Commission so prescribes by rule. Here, a Request would not be
filed in response to any application, but in response to a notification
that precedes an application for antenna structure registration. Even
if the tower proponent elects to file an associated license application
before completion of the environmental notification process, such
application will be filed subject to completion of the environmental
notification process so that the tower proponent will not yet have made
any affirmative certification as to environmental effect. Thus, the
Request for environmental processing in response to the environmental
notification falls outside the scope of Section 1.1313(a).
71. Moreover, the Commission finds it better as a matter of policy
to require these Requests only to set forth detailed reasons for
environmental consideration as provided in Section 1.1307(c). Section
1500.2(d) of the CEQ regulations requires Federal agencies to encourage
and facilitate public involvement in decisions that affect the quality
of the human environment. See 40 CFR 1500.2(d). Formal pleading
requirements, while potentially useful in deterring frivolous
submissions and in producing a well-informed record for agency
decision-making, could thwart participation in the Commission's NEPA
procedures by those lacking the legal sophistication or financial
wherewithal to participate formally. Also, imposing such formality on
public comments submitted in response to the pre-ASR filing
environmental notifications would be inappropriate in the context of
the streamlined processing of ASR applications, which places
significant reliance on members of the public to alert the Commission
to proposed facilities that may pose significant environmental effects.
Avoidance of unnecessarily strict pleading requirements for
environmental requests is also consistent with the Commission's
existing practice of accepting informal objections to applications
where appropriate under Section 1.1313(b). A Request for further
environmental review, although not subject to the standards applicable
to a petition to deny, must be filed within the prescribed 30-day
public comment period and must contain a supported statement explaining
the basis for the interested person's belief that the proposed tower
may have a significant environmental impact, as required by Section
1.1307(c). These requirements provide safeguards that the environmental
concerns raised through the environmental notification process will be
legitimate claims that will not needlessly delay the processing of ASR
applications. For similar reasons, we decline to require a settlement
meeting among the parties after the filing of a Request, as suggested
by NTCH, Inc.
[[Page 3947]]
Requiring such a meeting may impose an unreasonable burden on the party
filing the Request. The parties are free to agree to such meetings.
5. Facilities That Also Require Service-Specific Applications
72. Under the Commission's rules, some proposed towers are subject
to both ASR and service-specific application requirements. The
Commission's current rules and procedures vary by licensed service
regarding when and how an EA is submitted for towers that may
significantly affect the environment where more than one application is
filed. Applications for Wireless Radio Authorization (FCC Form 601)
involving major modifications (including all applications for
facilities that may have a significant environmental effect) are
routinely placed on public notice, but that notice does not distinguish
applications filed with attached EAs from other license applications
that may not involve tower construction or potential environmental
effects. An applicant may attach an EA to either its Form 601 or Form
854 application, and may rely on a resulting FONSI to certify on the
other application that its action will have no significant
environmental effect. Broadcast construction (see FCC Form 301) and
satellite earth station (see FCC Form 312) applicants whose proposed
facilities require registration in the ASR system must submit their EAs
as an exhibit to their service-specific applications regardless of any
other application requirement, and have been permitted to attach EAs to
their service-specific applications in lieu of submitting those EAs
with their FCC Forms 854.
73. Some commenters argue that Section 1506.6 of the CEQ rules
requires that the Commission notify the public separately regarding
each application associated with a proposed antenna structure subject
to registration under part 17. Others contend that it is sufficient to
provide a single opportunity, in connection with the ASR process, for
the public to comment on the environmental effects of each proposed
tower. Consistent with current procedures that generally require only
one NEPA review for a single proposed antenna structure, the Commission
is not persuaded that, from an environmental standpoint, the decision-
making involved in processing service-specific construction permits or
license applications raises discrete issues from those involved in
determining whether to register a tower from which licensed
communications service will be provided. The Commission's obligation to
accommodate public participation in its NEPA procedures for registering
communications towers does not require that the public be afforded
multiple opportunities to comment on the environmental effects of a
single tower project simply because both a tower registration and a
construction permit or license are required to authorize operation from
the proposed tower.
74. At the same time, it is important that every registered tower
(other than the exceptions discussed above) complete procedures that
ensure a specific opportunity for the public to voice environmental
concerns, as stated in the court's order. The public may not have this
opportunity if applicants can avoid environmental notification by
attaching any required EA for a proposed antenna structure to a
service-specific construction permit or license application (e.g., FCC
Form 301, 601), for which the public notice may not expressly mention
the EA or indicate that tower construction is involved. Accordingly,
the Commission will require that any required EA for a registered tower
be submitted through the notification process that precedes submission
of the complete ASR application, regardless of whether the licensee
must also attach the EA to an associated service-specific construction
permit or license application. An applicant that does not make an ASR
filing should continue to attach any required EA to the appropriate
licensing form.
75. The Commission also implements procedures that will enable
applicants for licenses that require frequency coordination to submit
FCC Form 601 before completing the environmental notification process.
Under the Commission's current procedures, FCC Form 601 cannot be filed
for a facility that requires antenna structure registration until
antenna structure registration has been granted. The Land Mobile
Communications Council expresses concern that if the Commission were to
continue to require grant of ASR before the FCC Form 601 could be
filed, a party whose environmental notification generated an
environmental Request necessitating review could lose its frequency to
a second party whose later notification generated no Requests and that
the notice process itself might alert a potential competing applicant
to the benefit of such action. To address such concerns, the Commission
will permit wireless radio, public safety, and other license applicants
whose proposed towers are subject to registration to file FCC Form 601
before completing the environmental notification process so long as the
applicant has obtained its FAA No Hazard Determination and notice has
been provided both locally and through the Commission's Web site. In
addition, in order to guard against speculative reservations of
frequencies or sites, the Commission also requires FCC Form 601
applicants that have not yet obtained their ASR Registration Number to
provide the Commission with an update of the status of their
environmental review every 60 days.
76. The Commission clarifies that the environmental process will
not affect the processing of a licensing application for a collocation
on an existing tower that has an ASR application pending for a change
that is unrelated to the collocation. For example, the tower owner may
have a pending application to change the lighting system or increase
the tower height to accommodate a different collocator. In such
instances, the processing of the license application for the unrelated
collocation will proceed independently of the ASR application.
6. Applications Pending on the Effective Date of the Environmental
Notification Process
77. The effective date of the environmental notification
requirements will be established in a Public Notice to be issued by the
Wireless Telecommunications Bureau. ASR applications that are pending
on the effective date ordinarily will not be required to complete the
environmental notification process. However, an amendment to an ASR
filing that occurs after the effective date will be subject to the
environmental notification requirements as set forth above. Similarly,
amendments to an EA may require environmental notification.
B. The Processing of ASR Applications Pending Completion of the
Commission's Programmatic NEPA Analysis
78. The Commission is obligated under NEPA to avoid irretrievable
commitments of resources without assessing the environmental effects of
its actions and ``to predict the environmental effects of a proposed
action before the action is taken and those effects are fully known.''
American Bird Conservancy, 516 F.3d at 2033. Accordingly, the
Commission takes interim measures to protect migratory birds pending
completion of the programmatic EA and this proceeding. The Commission's
expectation is that the record developed in the course of preparing the
nationwide programmatic EA may
[[Page 3948]]
provide a basis to determine what, if any, permanent rule changes are
necessary to effectuate its NEPA responsibilities regarding migratory
bird impacts when processing ASR applications. At the conclusion of the
programmatic EA and any subsequent programmatic EIS, the Commission
will take whatever steps it finds necessary to effectuate the
conclusions reached in the final programmatic NEPA document, including
steps to resolve any issues that may remain in the Migratory Birds
rulemaking.
79. Meanwhile, the Commission establishes interim processing
procedures to protect migratory birds pending the completion of this
process. Specifically, the Commission applies Section 1.1307(d) of its
rules, 47 CFR 1.1307(d) to require that an EA that includes a
discussion of potential impacts on migratory birds be filed for any
proposed new registered tower over 450 feet in height AGL. This
requirement will also apply to: replacement towers over 450 feet in
height AGL that involve a substantial increase in size to the tower
being replaced; expansions of existing towers over 450 feet in height
AGL that constitute a substantial increase in size; and conversions of
a tower over 450 feet in height AGL to a less preferred lighting style.
For all other registered towers, an EA will not be routinely required
except as specified in Section 1.1307(a) or (b). The Commission will
continue to apply Section 1.1307(c) and (d) on a case-by-case basis to
determine whether an EA is required for any such tower, taking into
consideration any Requests received during the public notice period.
80. The Commission adopts these interim measures pursuant to the
mandate in Section 1.1307(d) of its rules that the processing Bureau
shall require an EA if it determines that an otherwise categorically
excluded proposal may have a significant environmental effect. In
American Bird Conservancy, the court found that the Section 1.1307(c)
threshold for requiring EAs had been met for at least some towers in
the Gulf Coast region. Accordingly, on its own motion, the Commission
adopts these interim standards to require an EA for certain categories
of towers that are most likely to have significant effects on migratory
birds. Sections 4(i) and 4(j) of the Communications Act provide
additional authority for the adoption of the interim processing
guidelines set forth in this Section. 47 U.S.C. 154(i), (j); 47 CFR
1.1307(c).
81. The Commission's selection of 450 feet AGL as the threshold for
the interim EA filing requirement is consistent with evidence in the
Migratory Birds rulemaking record and elsewhere. As illustrated in
Figure 12 of the Draft Programmatic Environmental Assessment of the
Antenna Structure Registration Program (Aug. 26, 2011) (Draft
Programmatic EA), data from existing studies show no evidence of large-
scale mortality for towers less than approximately that height. Data
from the peer-reviewed Michigan Bird Study, for instance, confirm the
relevance of tower height in assessing the degree of risk to migratory
birds at individual towers. That study suggests that avian collisions
occur 68-86 percent less frequently at towers between 380 and 480 feet
AGL compared with towers greater than 1,000 feet AGL. Joelle Gehring,
Paul Kerlinger, and Albert M. Manville II, The Role of Tower Height and
Guy Wires on Avian Collisions with Communications Towers, 75 The
Journal of Wildlife Management 848 (2011). Other bird studies have also
recognized tower height as a factor potentially affecting avian
collisions. For example, the Avatar report commissioned by the FCC
identified height and lighting as tower characteristics that increase
hazards to migratory birds. Notice of Inquiry Comment Review Avian/
Communications Tower Collisions, filed by Avatar Environmental, LLC, WT
Docket No. 03-187 (Dec. 10, 2004). An Avian Risk Assessment for a
specific project prepared by Dr. Paul Kerlinger concluded, inter alia,
that decreasing the heights of specific towers would virtually
eliminate the risk to birds. Mr. Andrew Skotdal, 23 FCC Rcd 8574 (Media
Bur. Audio Div. 2008). See also Draft Programmatic EA, Figure 11: Mean
Annual Bird Mortality and Tower Heights. Thus, while there is not
consensus as to whether sufficient scientific research exists to
support adoption of permanent rule changes designed to protect
migratory birds, the Commission finds that there is sufficient evidence
to give special attention to tall towers on an interim basis while it
completes the programmatic EA and any subsequent programmatic EIS, if
required.
82. The Commission adopts the EA requirement for proposed towers
over 450 feet in height AGL as a reasonable, temporary measure for the
protection of migratory birds pending completion of the programmatic
EA, which will evaluate whether scientific evidence supports adoption
of permanent measures. Further, the interim measure is temporary and is
consistent with the tower height threshold for requiring an EA proposed
in the consensus MOU between industry representatives and environmental
groups. In particular, under the MOU, new towers taller than 450 feet
AGL would require an EA for avian effects. New towers of a height of
450 feet or less AGL, as well as replacement towers and other ASR
filings, would not initially require an EA as a categorical matter. The
inclusion in the MOU of a 450-foot threshold for an interim EA filing
requirement supports the Commission's conclusion that this interim
requirement strikes an appropriate balance between protecting migratory
birds and ensuring that ASR applications can be processed in a manner
that facilitates the rapid deployment of communications services.
83. In assessing, pursuant to Sections 1.1307(c) and (d), whether
further environmental processing is necessary for particular towers 450
feet in height or less AGL, the Commission expects that the processing
Bureau will consider factors including the height of the tower and the
lighting to be used. Consistent with the MOU, the Commission recognizes
that a tower close to 450 feet in height AGL is more likely to have a
significant environmental impact on migratory birds than a tower closer
to 200 feet in height. The Commission further expects that the Bureau
will afford significant weight to the absence of public objection in
response to the notice of proposed construction that the Commission
requires today.
84. The Commission clarifies that if a proposed tower is initially
submitted for environmental notification with a height of 450 feet AGL
or less and the submission is subsequently amended so that the height
will exceed 450 feet AGL, an EA will be required even if the change
does not constitute a substantial increase in size. The Commission
finds that this provision is necessary in order to ensure that
prospective applicants for towers just above 450 feet AGL do not game
the system.
85. For purposes of clarity, the Commission adds a note to Section
1.1307(d) of its rules to describe the circumstances in which the
Wireless Telecommunications Bureau shall require, or consider whether
to require, an environmental assessment with respect to migratory birds
for antenna structures subject to registration under part 17 of its
rules. This note will remain in effect pending the outcome of the
programmatic EA and any subsequent programmatic EIS if required, and
pending the completion of this rulemaking by means of a decisional
order. The Commission delegates authority to the Wireless
Telecommunications Bureau to adopt
[[Page 3949]]
appropriate changes to its processing procedures, processes, and forms
to apply these interim standards.
IV. Steps in the Environmental Notification Process
86. This Section outlines the environmental notification process
that an applicant for the registration of an antenna structure must
undertake before filing a completed Antenna Structure Registration
(ASR) application on FCC Form 854. Technical details about the process
for submitting this pre-filing notification will be provided in a
Public Notice that will be released before the rules take effect. The
Commission delegates to the Wireless Telecommunications Bureau (WTB)
the authority to change procedural aspects of the process outlined
below by Public Notice so long as those changes do not affect the
substantive rights of any party.
A. Commencement of the Process
Applicants will commence the process by submitting
information on FCC Form 854, including information regarding the
location, height, type, and lighting of the proposed structure. This is
a pre-application submission that does not constitute the filing of a
completed application.
[all] The applicant may commence the environmental notification
process on Form 854 either before or after it receives an FAA No Hazard
Determination. If the applicant commences the process before the No
Hazard Determination is received, the applicant must provide the
anticipated lighting and must later amend its submission if the FAA-
approved lighting is different.
[all] The environmental notification process may be conducted
simultaneously with other processes, including environmental reviews
that may require consultation with other Federal agencies and local
zoning procedures.
[all] The FCC will assign the proposed construction a unique file
number when the partially completed Form 854 is submitted.
Following the initial Form 854 submission, the applicant
shall provide local notice either by publication in a local newspaper
of general circulation or by other appropriate means, such as by
following local zoning public notice requirements.
[all] The text of the local notice must include:
[ssquf] The descriptive information submitted in the Form 854 as
part of the environmental notification process;
[ssquf] Instructions for filing any Request for further
environmental review no later than 30 days after information on the
proposed tower is posted on the FCC's Web site, including the relevant
electronic and regular mail addresses and the unique Form 854 File
Number issued by the FCC; and
[ssquf] Instructions for serving a copy of any Request upon the
applicant.
[all] Applicants may provide through a single publication local
notice under both this process and the Commission's procedures
implementing section 106 of the National Historic Preservation Act
(NHPA), see 47 CFR part 1, appendix C, section V (Nationwide
Programmatic Agreement), through a single publication, provided that:
[ssquf] The single notice satisfies the timing requirements of both
provisions, and it clearly describes and distinguishes both the
requirement to file environmental Requests with the Commission and the
separate process for submitting comments regarding potentially affected
historic properties to the applicant.
[ssquf] The applicant forwards any comment that substantially
relates to potentially affected historic properties to the State
Historic Preservation Officer or Tribal Historic Preservation Officer,
in accordance with the terms of the Nationwide Programmatic Agreement.
The applicant shall state in its initial FCC Form 854
submission the date on which it requests that the FCC provide national
notice of the proposed construction. This date must be on or after the
date the applicant provides local notice.
[all] On or after the national notice date the applicant has
requested, the Commission will post the information contained in the
applicant's initial Form 854 submission, or a link to such information,
in searchable form on its Web site. This information will remain posted
for 30 days.
[all] If local notice is not provided before the requested national
notice date, the applicant must amend its Form 854 submission to
provide a new national notice date.
Facilities That Also Require Service-Specific
Applications.
[all] Applicants that submit both an ASR application and a service-
specific application for a particular tower must complete the
environmental notification process on Form 854 and submit any required
Environmental Assessment (EA) through that process. Depending on the
service, the applicant may also be required to file a copy of the EA
with its service-specific application.
1. ULS Applicants
Wireless radio, public safety, and other applicants whose
proposed towers are subject to registration and require a license
application on FCC Form 601 must have begun the Form 854 environmental
notification process before filing Form 601, but may file Form 601
before completing the Form 854 environmental notification process.
[all] In the event an EA is required, it shall be filed only with
Form 854. WTB will provide instructions at a later date for completing
the environmental question on Form 601 in such situations.
[all] Applicants whose proposed towers require an EA but do not
require registration shall continue to file an EA with Form 601.
An applicant that chooses to file FCC Form 601 before the
environmental notification process is complete must have already
obtained an FAA No Hazard Determination and provided local notice of
the proposed construction, and the FCC must have posted notification of
the proposed construction on its Web site.
[all] Such an applicant shall provide its Form 854 File Number in
place of the ASR Registration Number that is currently required.
[all] Upon grant of the ASR application, the applicant must amend
the FCC Form 601 to replace the Form 854 File Number with the ASR
Registration Number.
FCC Form 601 applicants that have not yet obtained their
ASR Registration Number must provide the Bureau with an update of the
status of their environmental review every 60 days from the date the
FCC Form 601 was filed. Failure to provide the update may result in
dismissal of the FCC Form 601 application.
[all] Such an update must reflect active pursuit of the
environmental review.
[all] Updates will not be required while action on the
environmental notification filing is pending at the Commission, such as
when the Commission is considering whether to grant a Request for
further environmental processing or is reviewing a filed EA.
[all] WTB will prescribe by public notice the procedures for
providing such updates.
An applicant electing to file the associated license
application after completion of environmental processing should use its
ASR Registration Number to file FCC Form 601 in the first instance, as
is the practice today.
2. Broadcast Applicants
An applicant to build a facility in any broadcast service
that also requires the completion of FCC Form 854 will now be required
to submit a Form 854 environmental notification filing and,
[[Page 3950]]
when necessary, attach an EA to both its Form 854 environmental
notification filing and its application for a broadcast construction
permit, FCC Form 301, 318, 340, 346, or 349.
[all] The same EA must be submitted with both the broadcast
construction permit application and the Form 854 environmental
notification submission.
[all] Applicants whose proposals do not require registration but do
require an EA under Section 1.1307 (such as construction in a flood
plain that does not require ASR) should file the EA only with the
construction permit application form.
The Media Bureau may continue to accept applications
requiring ASR that are submitted prior to obtaining an ASR Registration
Number, with the caveat that such applications will not be granted
until the environmental notification process has been completed and the
ASR Registration Number supplied.
[all] Applicants whose applications can be filed outside specified
filing windows, such as applications for minor changes to existing
authorizations, and whose tower projects require registration, may
elect to file their construction permit applications either before or
after completing the Form 854 environmental notification process.
[all] Applicants that file the construction permit application
after completing the environmental notification process and obtaining a
grant of Antenna Structure Registration shall either answer ``Yes,'' or
``No'' with an attached EA, in response to the environmental
certification question on the construction permit application.
[all] Applicants that file their construction permit applications
before completion of the environmental notification process are advised
to check ``No'' in response to the environmental certification question
on the construction permit application, indicating that the project has
not been determined to be excluded from environmental processing.
[ssquf] Such an applicant should also attach to the Application an
Exhibit (called for by the environmental certification item in each
broadcast construction permit form) explaining whether or not the
applicant has commenced the evaluation of the environmental effects of
any proposed construction and where the applicant is in that process.
Applicants for new construction permits or major changes
that are subject to the Commission's competitive bidding procedures
initiate the process with the generic FCC Form 175 (Application to
Participate in an FCC Auction) rather than a service-specific
application (such as those listed above) containing an environmental
certification.
[all] FCC Form 175 does not contain an environmental certification,
and no environmental review or environmental notice is necessary to
submit it.
[all] Only the winning bidder who has made the final bid payment
will need to submit a ``long-form,'' service-specific application, and
it is at that time that an applicant subject to ASR will need to
undertake the pre-ASR environmental notification process and complete
Form 854.
[all] Similarly, after a dispositive preference is awarded under
Section 307(b) of the Communications Act, an applicant subject to ASR
will need to undertake the pre-ASR environmental notification process
and complete Form 854.
3. Earth Station Applicants
An earth station license applicant using FCC Form 312 or
312EZ, which is required under Part 17 to notify the FAA of its plans
to construct an antenna structure (e.g., an earth station), must
complete the environmental notification process prior to submission of
a complete FCC Form 854 to register the antenna structure.
[all] An applicant filing FCC Form 312 will be required to attach a
completed FCC Form 854 to its FCC Form 312 application.
[all] An applicant filing FCC Form 312EZ electronically will
instead be required to provide its ASR Registration Number in the
appropriate Section of the FCC Form 312EZ.
[cir] If an EA was required as part of the environmental
notification process and the Bureau issued a Finding of No Significant
Impact (FONSI), the applicant will no longer be required to submit an
EA with its FCC Form 312 or 312EZ. Instead, the applicant will be able
to rely on the FONSI in order to indicate on its license application
that the proposed earth station will not have a significant
environmental effect.
B. Amendments
Amendments to FCC Form 854 that are filed after the
provision of local notice or posting on the FCC's Web site do not
require new local or national notice if made only for the following
purposes:
[cir] Changes to administrative information or other changes not
affecting the structure's location, height, lighting, or physical
configuration.
[cir] Changes to a more preferred or equally preferred lighting
style as set forth in amended rule Section 17.4(c)(1)(iii), including
removal of proposed lighting.
[cir] Reduction in the height of the structure, unaccompanied by
any other change in the physical structure of the proposed tower.
All other changes to the location, physical
characteristics, or lighting of the proposed structure will require an
additional local notice, an additional national notice, and re-
initiation of the 30-day period for interested persons to submit
Requests for further environmental review.
[cir] Such changes include any increase in the height of the
structure even if the increase does not constitute a substantial
increase in size.
An amendment to add an EA will require a new posting on
the FCC's Web site and opportunity for comment but not a new local
notice (see Section F below).
C. Requests for Further Environmental Review
Requests for further environmental review must be received
by the Commission within 30 days after information regarding a proposed
construction is posted on the Commission's Web site. Late filed
Requests may be subject to dismissal.
[cir] The Wireless Telecommunications Bureau will make provision
for filing of Requests either electronically or by mail. To ensure
timely receipt and to facilitate processing, electronic filing will be
strongly encouraged.
[cir] Requests must be served on the prospective applicant.
Oppositions will be due 10 calendar days after expiration
of the time for filing Requests. Replies will be due 5 business days
after expiration of the time for filing oppositions. Oppositions and
replies must be served on the parties to the proceeding.
Proceedings involving environmental filings for a specific
structure are restricted proceedings under Section 1.1208 of the
Commission's rules. Information presented to the Bureau must be served
on all parties pursuant to Section 1.1202(d) of the Commission's rules.
D. Disposition of Filings Without EAs
After completion of the 30-day notice period and after
reviewing any Requests, the Commission staff will notify the applicant
whether an EA is required under Section 1.1307(c) or (d) of its rules.
Staff will make every effort to provide this notification as promptly
as possible, particularly in cases where no Requests are received.
[[Page 3951]]
If no EA is required based on the Form 854 filing and any
Requests, and if the applicant has determined that no EA is otherwise
required under Section 1.1307(a) or (b), it may then update Form 854 to
certify that the tower will have no significant environmental impact.
At this point, if all other required information has been
provided, the Form 854 will be deemed complete and can be processed
accordingly.
E. Filings With EAs
If an applicant is required, under the Commission's rules,
to file an Environmental Assessment (EA) in connection with a structure
that is required to be registered, such EA must be filed as part of the
environmental notification process.
[cir] An applicant may determine that an EA is necessary when it
makes its initial filing, in which case it will attach the EA to that
filing.
[cir] Alternatively, an EA may be supplied at a later date by
amending an existing filing, if either the applicant or the Commission
determines that a potentially significant environmental effect may
exist.
Regardless of when in the process it is filed, the EA will
be placed on notice on the Commission's Web site, thus commencing a 30-
day period for public comment.
[cir] If the EA is filed with the initial Form 854 submission, it
must also be placed on local notice in the same manner as an
environmental notification filing without an attached EA.
[all] If the EA is added to a Form 854 submission that has already
gone on local notice, additional local notice is not required in most
instances.
[ssquf] The prospective applicant must serve the EA on any party
that has filed a Request in response to the earlier notice.
[ssquf] A second publication in a local newspaper of general
circulation or equivalent local notice will be required if there has
been a change in the proposed structure's geographic location, height,
configuration, or lighting, other than a reduction in height or a
change to a more preferred or equally preferred lighting style.
After considering the EA and any Requests, the Bureau will
either issue a Finding of No Significant Impact (FONSI), require
amendments to the EA, or determine that an Environmental Impact
Statement is needed.
Upon issuance of a FONSI, the applicant may complete the
Form 854 filing to certify that the tower will have no significant
environmental impact.
V. Procedural Matters
A. Regulatory Flexibility Analysis
87. The Commission has determined that the environmental
notification rules and the implementation of interim processing
standards, pursuant to Section 1.1307(d), do not require the
publication of a general notice of proposed rulemaking so as to require
the preparation of a Regulatory Flexibility Analysis pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 603, 604 (RFA).
B. Paperwork Reduction Act of 1995 Analysis
88. This document contains modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. It will be submitted to the Office of Management and
Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the
general public, and other Federal agencies are invited to comment on
the new or modified information collection requirements contained in
this proceeding. In addition, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the
Commission seeks specific comment on how it might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
C. Congressional Review Act
89. The Commission will send a copy of this Order on Remand to
Congress and the Government Accountability Office, pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
D. Accessible Formats
90. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an email to fcc504@fcc.gov or call the Consumer & Government
Affairs Bureau at (201) 418-0530 (voice) or (202) 418-0432 (TTY).
VI. Ordering Clauses
91. Accordingly, it is ordered that, pursuant to Sections 1, 2,
4(i), 303(q), 303(r), and 309(j) of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i), 303(q), 303(r), and 309(j),
Section 102(C) of the National Environmental Policy Act of 1969, as
amended, 42 U.S.C. 4332(C), and Section 1506.6 of the regulations of
the Council on Environmental Quality, 40 CFR 1506.6, the environmental
notification procedures are adopted.
92. It is further ordered that the rules adopted herein will become
effective upon Commission publication of a notice in the Federal
Register announcing such approval. The rules and procedures adopted in
this Order contain new or modified information collections that require
approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act.
93. It is further ordered that, pursuant to Sections 4(i) and 4(j)
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and
154(j), and Section 1.1307(d) of the Commission's rules, 47 CFR
1.1307(d), the Wireless Telecommunications Bureau shall apply the
interim antenna structure registration standards set forth in this
Order.
94. It is further ordered that the Wireless Telecommunications
Bureau is delegated authority to make all necessary changes to its
procedures, processing standards, electronic database systems, and
forms to apply the procedures and interim standards adopted in this
Order.
95. It is further ordered that, pursuant to Sections 4(i), 4(j),
303(r), and 309 of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 154(j), 303(r), and 309, the Petitions for Expedited
Rulemaking filed on May 2, 2008, by the Infrastructure Coalition and on
April 14, 2009 by the Conservation Groups are granted to the extent
reflected herein and otherwise are dismissed without prejudice.
96. It is further ordered that, pursuant to Sections 4(i), 4(j),
303(r), 309, and 405 of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 154(j), 303(r), 309, and 405, the Petition for
Reconsideration filed on April 25, 2011, by Blooston, Mordkofsky,
Dickens, Duffy & Prendergast, LLP is dismissed.
97. It is further ordered that the Commission shall send a copy of
this Order in a report to be sent to Congress and the General
Accounting Office pursuant to the Congressional Review Act, 5 U.S.C.
801(a)(1)(A).
List of Subjects
47 CFR Part 1
Administrative practice and procedure, Environmental impact
statements, and Reporting and recordkeeping requirements.
47 CFR Part 17
Aviation safety, Communications equipment, and Reporting and
recordkeeping requirements.
[[Page 3952]]
47 CFR Parts 22, 25, 80 and 87
Communications equipment, and Reporting and recordkeeping
requirements.
47 CFR Parts 24 and 90
Administrative practice and procedure, Communications equipment,
and Reporting and recordkeeping requirements.
47 CFR Part 27
Reporting and recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 1, 7, 22, 24, 25, 27, 80,
87 and 90 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i),154(j),
160, 201, 225, 303.
0
2. Section 1.61 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 1.61 Procedures for handling applications requiring special
aeronautical study.
(a) * * *
(2) In accordance with Sec. 1.1307 and Sec. 17.4(c) of this
chapter, the Bureau will address any environmental concerns prior to
processing the registration.
* * * * *
0
3. Section 1.923 is amended by revising paragraphs (d) and (e) to read
as follows:
Sec. 1.923 Content of applications.
* * * * *
(d) Antenna structure registration. Owners of certain antenna
structures must notify the Federal Aviation Administration and register
with the Commission as required by part 17 of this chapter.
Applications proposing the use of one or more new or existing antenna
structures must contain the FCC Antenna Structure Registration
Number(s) of each structure for which registration is required. To
facilitate frequency coordination or for other purposes, the Bureau
shall accept for filing an application that does not contain the FCC
Antenna Structure Registration Number so long as;
(1) The antenna structure owner has filed an antenna structure
registration application (FCC Form 854);
(2) The antenna structure owner has provided local notice and the
Commission has posted notification of the proposed construction on its
Web site pursuant to Sec. 17.4(c)(3) and (4) of this chapter; and
(3) The antenna structure owner has obtained a Determination of No
Hazard to Aircraft Navigation from the Federal Aviation Administration.
In such instances, the applicant shall provide the FCC Form 854 File
Number on its application. Once the antenna structure owner has
obtained the Antenna Structure Registration Number, the applicant shall
amend its application to provide the Antenna Structure Registration
Number, and the Commission shall not grant the application before the
Antenna Structure Registration Number has been provided. If
registration is not required, the applicant must provide information in
its application sufficient for the Commission to verify this fact.
(e) Environmental concerns. (1) Environmental processing shall be
completed pursuant to the process set forth in Sec. 17.4(c) of this
chapter for any facilities that use one or more new or existing antenna
structures for which a new or amended registration is required by part
17 of this chapter. Environmental review by the Commission must be
completed prior to construction.
(2) For applications that propose any facilities that are not
subject to the process set forth in Sec. 17.4(c) of this chapter, the
applicant is required to indicate at the time its application is filed
whether or not a Commission grant of the application for those
facilities may have a significant environmental effect as defined by
Sec. 1.1307. If the applicant answers affirmatively, an Environmental
Assessment, required by Sec. 1.1311 must be filed with the application
and environmental review by the Commission must be completed prior to
construction.
* * * * *
0
4. Section 1.929 is amended by revising paragraph (a)(4) to read as
follows:
Sec. 1.929 Classification of filings as major or minor.
* * * * *
(a) * * *
(4) Application or amendment requesting authorization for a
facility that may have a significant environmental effect as defined in
Sec. 1.1307, unless the facility has been determined not to have a
significant environmental effect through the process set forth in Sec.
17.4(c) of this chapter.
* * * * *
0
5. Section 1.934 is amended by adding paragraph (g) to read as follows:
Sec. 1.934 Defective applications and dismissal.
* * * * *
(g) Dismissal for failure to pursue environmental review. The
Commission may dismiss license applications (FCC Form 601) associated
with proposed antenna structure(s) subject to Sec. 17.4(c) of this
chapter, if pending more than 60 days and awaiting submission of an
Environmental Assessment or other environmental information from the
applicant, unless the applicant has provided an affirmative statement
reflecting active pursuit during the previous 60 days of environmental
review for the proposed antenna structure(s). To avoid potential
dismissal of its license application, the license applicant must
provide updates every 60 days unless or until the applicant has
submitted the material requested by the Bureau.
0
6. Section 1.1306 is amended by revising Note 2 following paragraph (b)
to read as follows:
Sec. 1.1306 Actions which are categorically excluded from
environmental processing.
* * * * *
(b) * * *
Note 2: The specific height of an antenna tower or supporting
structure, as well as the specific diameter of a satellite earth
station, in and of itself, will not be deemed sufficient to warrant
environmental processing, see Sec. 1.1307 and Sec. 1.1308, except
as required by the Bureau pursuant to the Note to Sec. 1.1307(d).
* * * * *
0
7. Section 1.1307 is amended by adding a note to paragraph (d) to read
as follows:
Sec. 1.1307 Actions that may have a significant environmental effect,
for which Environmental Assessments (EAs) must be prepared.
* * * * *
(d) * * *
Note to paragraph (d): Pending a final determination as to what,
if any, permanent measures should be adopted specifically for the
protection of migratory birds, the Bureau shall require an
Environmental Assessment for an otherwise categorically excluded
action involving a new or existing antenna structure, for which an
antenna structure registration application (FCC Form 854) is
required under part 17 of this chapter, if the proposed antenna
structure will be over 450 feet in height above ground level (AGL)
and involves either:
1. Construction of a new antenna structure;
[[Page 3953]]
2. Modification or replacement of an existing antenna structure
involving a substantial increase in size as defined in paragraph
I(C)(1)(3) of Appendix B to part 1 of this chapter; or
3. Addition of lighting or adoption of a less preferred lighting
style as defined in Sec. 17.4(c)(1)(iii) of this chapter. The
Bureau shall consider whether to require an EA for other antenna
structures subject to Sec. 17.4(c) of this chapter in accordance
with Sec. 17.4(c)(8) of this chapter. An Environmental Assessment
required pursuant to this note will be subject to the same
procedures that apply to any Environmental Assessment required for a
proposed tower or modification of an existing tower for which an
antenna structure registration application (FCC Form 854) is
required, as set forth in Sec. 17.4(c) of this chapter.
* * * * *
PART 17--CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES
0
8. The authority citation for part 17 continues to read as follows:
Authority: Sec. Sec. 4, 303, 48 Stat. 1066, 1082, as amended;
47 U.S.C. 154, 303, Interpret or apply 301, 309, 48 Stat. 1081,
1085, as amended; 47 U.S.C. 301, 309.
0
9. Section 17.4 is amended by revising paragraph (c) to read as
follows:
Sec. 17.4 Antenna structure registration.
* * * * *
(c) Each prospective applicant must complete the environmental
notification process described in this paragraph, except as specified
in paragraph (c)(1) of this section.
(1) Exceptions from the environmental notification process.
Completion of the environmental notification process is not required
when FCC Form 854 is submitted solely for the following purposes:
(i) For notification only, such as to report a change in ownership
or contact information, or the dismantlement of an antenna structure;
(ii) For a reduction in height of an antenna structure or an
increase in height that does not constitute a substantial increase in
size as defined in paragraph I(C)(1)-(3) of Appendix B to part 1 of
this chapter, provided that there is no construction or excavation more
than 30 feet beyond the existing antenna structure property;
(iii) For removal of lighting from an antenna structure or adoption
of a more preferred or equally preferred lighting style. For this
purpose lighting styles are ranked as follows (with the most preferred
lighting style listed first and the least preferred listed last): no
lights; FAA Lighting Styles that do not involve use of red steady
lights; and FAA Lighting Styles that involve use of red steady lights.
A complete description of each FAA Lighting Style and the manner in
which it is to be deployed can be found in the current version of FAA,
U.S. Dept. of Transportation, Advisory Circular: Obstruction Marking
and Lighting, AC 70/7460;
(iv) For replacement of an existing antenna structure at the same
geographic location that does not require an Environmental Assessment
(EA) under Sec. 1.1307(a) through (d) of this chapter, provided the
new structure will not use a less preferred lighting style, there will
be no substantial increase in size as defined in paragraph I(C)(1)-(3)
of Appendix B to part 1 of this chapter, and there will be no
construction or excavation more than 30 feet beyond the existing
antenna structure property;
(v) For any other change that does not alter the physical
structure, lighting, or geographic location of an existing structure;
or
(vi) For construction, modification, or replacement of an antenna
structure on Federal land where another Federal agency has assumed
responsibility for evaluating the potentially significant environmental
effect of the proposed antenna structure on the quality of the human
environment and for invoking any required environmental impact
statement process, or for any other structure where another Federal
agency has assumed such responsibilities pursuant to a written
agreement with the Commission. See Sec. 1.1311(e) of this chapter.
(2) Commencement of the environmental notification process. The
prospective applicant shall commence the environmental notification
process by filing information about the proposed antenna structure with
the Commission. This information shall include, at a minimum, all of
the information required on FCC Form 854 regarding ownership and
contact information, geographic location, and height, as well as the
type of structure and anticipated lighting. The Wireless
Telecommunications Bureau may utilize a partially completed FCC Form
854 to collect this information.
(3) Local notice. The prospective applicant must provide local
notice of the proposed new antenna structure or modification of an
existing antenna structure through publication in a newspaper of
general circulation or other appropriate means, such as through the
public notification provisions of the relevant local zoning process.
The local notice shall contain all of the descriptive information as to
geographic location, configuration, height and anticipated lighting
specifications reflected in the submission required pursuant to
paragraph (c)(2) of this section. It must also provide information as
to the procedure for interested persons to file Requests for
environmental processing pursuant to Sec. Sec. 1.1307(c) and 1.1313(b)
of this chapter, including any assigned file number, and state that
such Requests may only raise environmental concerns.
(4) National notice. On or after the local notice date provided by
the prospective applicant, the Commission shall post notification of
the proposed construction on its Web site. This posting shall include
the information contained in the initial filing with the Commission or
a link to such information. The posting shall remain on the
Commission's Web site for a period of 30 days.
(5) Requests for environmental processing. Any Request filed by an
interested person pursuant to Sec. Sec. 1.1307(c) and 1.1313(b) of
this chapter must be received by the Commission no later than 30 days
after the proposed antenna structure goes on notice pursuant to
paragraph (c)(4) of this section. The Wireless Telecommunications
Bureau shall establish by public notice the process for filing Requests
for environmental processing and responsive pleadings consistent with
the following provisions.
(i) Service and pleading cycle. The interested person or entity
shall serve a copy of its Request on the prospective ASR applicant
pursuant to Sec. 1.47 of this chapter. Oppositions may be filed no
later than 10 days after the time for filing Requests has expired.
Replies to oppositions may be filed no later than 5 days after the time
for filing oppositions has expired. Oppositions shall be served upon
the Requester, and replies shall be served upon the prospective
applicant.
(ii) Content. An Environmental Request must state why the
interested person or entity believes that the proposed antenna
structure or physical modification of an existing antenna structure may
have a significant impact on the quality of the human environment for
which an Environmental Assessment must be considered by the Commission
as required by Sec. 1.1307 of this chapter, or why an Environmental
Assessment submitted by the prospective ASR applicant does not
adequately evaluate the potentially significant environmental effects
of the proposal. The Request must be submitted as a
[[Page 3954]]
written petition filed either electronically or by hard copy setting
forth in detail the reasons supporting Requester's contentions.
(6) Amendments. The prospective applicant must file an amendment to
report any substantial change in the information provided to the
Commission. An amendment will not require further local or national
notice if the only reported change is a reduction in the height of the
proposed new or modified antenna structure; if proposed lighting is
removed or changed to a more preferred or equally preferred lighting
style as set forth in paragraph (c)(1)(iii) of this section; or if the
amendment reports only administrative changes that are not subject to
the requirements specified in this paragraph. All other changes to the
physical structure, lighting, or geographic location data for a
proposed registered antenna structure require additional local and
national notice and a new period for filing Requests pursuant to
paragraphs (c)(3), (c)(4), and (c)(5) of this section.
(7) Environmental Assessments. If an Environmental Assessment (EA)
is required under Sec. 1.1307 of this chapter, the antenna structure
registration applicant shall attach the EA to its environmental
submission, regardless of any requirement that the EA also be attached
to an associated service-specific license or construction permit
application. The contents of an EA are described in Sec. Sec. 1.1308
and 1.1311 of this chapter. The EA may be provided either with the
initial environmental submission or as an amendment. If the EA is
submitted as an amendment, the Commission shall post notification on
its Web site for another 30 days pursuant to paragraph (c)(4) of this
section and accept additional Requests pursuant to paragraph (c)(5) of
this section. However, additional local notice pursuant to paragraph
(c)(3) of this section shall not be required unless information has
changed pursuant to paragraph (c)(6) of this section. The applicant
shall serve a copy of the EA upon any party that has previously filed a
Request pursuant to paragraph (c)(5) of this section.
(8) Disposition. The processing Bureau shall resolve all
environmental issues, in accordance with the environmental regulations
(47 CFR 1.1301 through 1.1319) specified in part 1 of this chapter,
before the tower owner, or the first tenant licensee acting on behalf
of the owner, may complete the antenna structure registration
application. In a case where no EA is submitted, the Bureau shall
notify the applicant whether an EA is required under Sec. 1.1307(c) or
(d) of this chapter. In a case where an EA is submitted, the Bureau
shall either grant a Finding of No Significant Impact (FONSI) or notify
the applicant that further environmental processing is required
pursuant to Sec. 1.1308 of this chapter. Upon filing the completed
antenna structure registration application, the applicant shall certify
that the construction will not have a significant environmental impact,
unless an Environmental Impact Statement is prepared pursuant to Sec.
1.1314 of this chapter.
(9) Transition rule. An antenna structure registration application
that is pending with the Commission as of the effective date of this
paragraph (c) shall not be required to complete the environmental
notification process set forth in this paragraph. The Commission will
publish a document in the Federal Register announcing the effective
date. However, if such an application is amended in a manner that would
require additional notice pursuant to paragraph (c)(6) of this section,
then such notice shall be required.
* * * * *
PART 22--PUBLIC MOBILE SERVICES
0
10. The authority citation for part 22 continues to read as follows:
Authority: 47 U.S.C. 154, 222, 303, 309, 332.
0
11. Section 22.143 is amended by revising paragraph (d)(4) to read as
follows:
Sec. 22.143 Construction prior to grant of application.
* * * * *
(d) * * *
(4) For any construction or alteration that would exceed the
requirements of Sec. 17.7 of this chapter, the licensee has notified
the appropriate Regional Office of the Federal Aviation Administration
(FAA Form 7460-1), secured a valid FAA determination of ``no hazard,''
and received antenna height clearance and obstruction marking and
lighting specifications (FCC Form 854R) from the FCC for the proposed
construction or alteration.
* * * * *
PART 24--PERSONAL COMMUNICATION SERVICES
0
12. The authority citation for part 24 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 309, 332.
0
13. Section 24.2 is amended by revising paragraphs (b) and (f) to read
as follows:
Sec. 24.2 Other applicable rule parts.
* * * * *
(b) Part 1. This part includes rules of practice and procedure for
license applications, adjudicatory proceedings, procedures for
reconsideration and review of the Commission's actions; provisions
concerning violation notices and forfeiture proceedings; and the
environmental requirements that, together with the procedures specified
in Sec. 17.4(c) of this chapter, if applicable, must be complied with
prior to the initiation of construction. Subpart F includes the rules
for the Wireless Telecommunications Services and the procedures for
filing electronically via the ULS.
* * * * *
(f) Part 17. This part contains requirements for the construction,
marking and lighting of antenna towers, and the environmental
notification process that must be completed before filing certain
antenna structure registration applications.
* * * * *
PART 25--SATELLITE COMMUNICATIONS
0
14. The authority citation for part 25 continues to read as follows:
Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4,
301, 302, 303, 307, 309, and 332 of the Communications Act, as
amended, 47 U.S.C. 154, 301, 302, 303, 307, 309, 332.
0
15. Section 25.113 is amended by revising paragraph (a) to read as
follows:
Sec. 25.113 Station licenses and launch authority
(a) Construction permits are not required for satellite earth
stations. Construction of such stations may commence prior to grant of
a license at the applicant's own risk. Applicants must comply with the
provisions of 47 CFR 1.1312 relating to environmental processing prior
to commencing construction. Applicants filing applications that propose
the use of one or more new or existing antenna structures requiring
registration under part 17 of this chapter must also comply with any
applicable environmental notification process specified in Sec.
17.4(c) of this chapter.
* * * * *
0
16. Section 25.115 is amended by revising paragraph (c)(2)(vi)(A)(4) to
read as follows:
Sec. 25.115 Applications for earth station authorizations.
* * * * *
(c) * * *
[[Page 3955]]
(2) * * *
(vi) * * *
(A) * * *
(4) The applicant has determined that the facility(ies) will not
significantly affect the environment as defined in Sec. 1.1307 of this
chapter after complying with any applicable environmental notification
procedures specified in Sec. 17.4(c) of this chapter.
* * * * *
PART 27--MISCELLANEOUS WIRELESS COMMUNICATION SERVICES
0
17. The authority citation for part 27 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336,
337.
0
18. Section 27.3 is amended by revising paragraphs (b) and (f) to read
as follows:
Sec. 27.3 Other applicable rule parts.
* * * * *
(b) Part 1. This part includes rules of practice and procedure for
license applications, adjudicatory proceedings, procedures for
reconsideration and review of the Commission's actions; provisions
concerning violation notices and forfeiture proceedings; competitive
bidding procedures; and the environmental requirements that, together
with the procedures specified in Sec. 17.4(c) of this chapter, if
applicable, must be complied with prior to the initiation of
construction. Subpart F includes the rules for the Wireless
Telecommunications Services and the procedures for filing
electronically via the ULS.
* * * * *
(f) Part 17. This part contains requirements for the construction,
marking and lighting of antenna towers, and the environmental
notification process that must be completed before filing certain
antenna structure registration applications.
* * * * *
PART 80--STATIONS IN THE MARITIME SERVICES
0
19. The authority citation for part 80 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 307(e), 309, 332.
0
20. Section 80.3 is amended by revising paragraphs (b) and (e) to read
as follows:
Sec. 80.3 Other applicable rule parts of this chapter.
* * * * *
(b) Part 1. This part includes rules of practice and procedure for
license applications, adjudicatory proceedings, procedures for
reconsideration and review of the Commission's actions; provisions
concerning violation notices and forfeiture proceedings; and the
environmental processing requirements that, together with the
procedures specified in Sec. 17.4(c) of this chapter, if applicable,
must be complied with prior to the initiation of construction. Subpart
Q of part 1 contains rules governing competitive bidding procedures for
resolving mutually exclusive applications for certain initial licenses.
* * * * *
(e) Part 17. This part contains requirements for the construction,
marking and lighting of antenna towers, and the environmental
notification process that must be completed before filing certain
antenna structure registration applications.
* * * * *
PART 87--AVIATION SERVICES
0
21. The authority citation for part 87 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 307(e).
0
22. Section 87.3 is amended by revising paragraphs (b) and (e) to read
as follows:
Sec. 87.3 Other applicable rule parts.
* * * * *
(b) Part 1 contains rules of practice and procedure for license
applications, adjudicatory proceedings, rule making proceedings,
procedures for reconsideration and review of the Commission's actions;
provisions concerning violation notices and forfeiture proceedings; and
the environmental processing requirements that, together with the
procedures specified in Sec. 17.4(c) of this chapter, if applicable,
must be complied with prior to the initiation of construction.
* * * * *
(e) Part 17 contains requirements for construction, marking and
lighting of antenna towers, and the environmental notification process
that must be completed before filing certain antenna structure
registration applications.
* * * * *
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
0
23. The authority citation for part 90 continues to read as follows:
Authority: 47 U.S.C. 154(i), 11, 303(g), 303(r), 332(c)(7).
0
24. Section 90.5 is amended by revising paragraphs (b) and (f) to read
as follows:
Sec. 90.5 Other applicable rule parts.
* * * * *
(b) Part 1 includes rules of practice and procedure for the filing
of applications for stations to operate in the Wireless
Telecommunications Services, adjudicatory proceedings including hearing
proceedings, and rule making proceedings; procedures for
reconsideration and review of the Commission's actions; provisions
concerning violation notices and forfeiture proceedings; and the
environmental processing requirements that, together with the
procedures specified in Sec. 17.4(c) of this chapter, if applicable,
must be complied with prior to initiating construction.
* * * * *
(f) Part 17 contains requirements for construction, marking and
lighting of antenna towers, and the environmental notification process
that must be completed before filing certain antenna structure
registration applications.
* * * * *
0
25. Section 90.129 is amended by revising paragraph (g) to read as
follows:
Sec. 90.129 Supplemental information to be routinely submitted with
applications.
* * * * *
(g) The environmental assessment required by Sec. Sec. 1.1307 and
1.1311 of this chapter, if applicable. If an application filed under
this part proposes the use of one or more new or existing antenna
structures that require registration under part 17 of this chapter, any
required environmental assessment should be submitted pursuant to the
process set forth in Sec. 17.4(c) of this chapter rather than with the
application filed under this part.
* * * * *
[FR Doc. 2012-1535 Filed 1-25-12; 8:45 am]
BILLING CODE 6712-01-P