[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,

[[Page 3937]]

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

[[Page 3940]]

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