Pennsylvania Wireless Association

The Voice of the Wireless Industry in Pennsylvania...

Before the

Federal Communications Commission

Washington, D.C. 20554

 

 

In the Matter of

 

National Environmental Policy Act Compliance for Proposed Tower Registrations

 

Effects of Communications Towers

On Migratory Birds

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WT Docket No. 08-61

 

 

WT Docket No. 03-187

 

 

 

order on REMAND

 

Adopted:   December 6, 2011                                                Released:   December 9, 2011

 

By the Commission:  Commissioner Copps issuing a statement.

Table of Contents

Heading                                                                                                                                    Paragraph #

I.    introduction....................................................................................................................... 1

II.   BACKGROUND........................................................................................................................ 6

A.  NEPA and CEQ Rules.......................................................................................................... 6

B.   The Commission’s NEPA Process...................................................................................... 11

C.   The Gulf Petition and Litigation.......................................................................................... 20

D.  Migratory Birds Rulemaking Proceeding............................................................................. 26

E.   The Rulemaking Petitions and the Memorandum of Understanding................................... 29

F.   The Programmatic Environmental Assessment................................................................... 34

III. DISCUSSION........................................................................................................................... 37

A.  The Environmental Notification Process............................................................................. 40

1.   Actions Subject to Notice............................................................................................. 49

2.   Timing of Environmental Notice.................................................................................. 58

3.   National and Local Notice............................................................................................ 60

4.   Public Comment on Environmental Notifications......................................................... 65

5.   Facilities That Also Require Service-Specific Applications........................................... 71

6.   Applications Pending on the Effective Date of the Environmental Notification Process 76

B.   The Processing of ASR Applications Pending Completion of the Commission’s Programmatic NEPA Analysis.............................................................................................................................. 77

IV. procedural matters...................................................................................................... 85

A.  Regulatory Flexibility Analysis........................................................................................... 85

B.   Paperwork Reduction Act of 1995 Analysis....................................................................... 86

V.  ORDERING CLAUSES............................................................................................................ 87

 

APPENDICES

APPENDIX A:  List of Commenters in WT Docket No. 08-61

APPENDIX B:  List of Commenters in WT Docket 03-187

APPENDIX C:  List of Commenters in WT Docket No. 08-61 in Response to Draft Rules Public Notice

APPENDIX D:  Final Rules

APPENDIX E: Steps in the Environmental Notification Process

I.                   introduction

1.                  In this Order, we take procedural measures to ensure, consistent with the Commission’s 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.  We institute 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, we also require that an Environmental Assessment (EA) be prepared for any proposed tower over 450 feet in height.  Through these actions and our related ongoing initiatives, we endeavor 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.                  Our actions today respond to the decision of the Court of Appeals for the District of Columbia Circuit in American Bird Conservancy v. FCC. [1]  In American Bird Conservancy, the court held that our 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). [2]  The notification process that we adopt 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.[3]  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).[4]   

3.                  Today’s action also occurs in the context of our ongoing rulemaking proceeding addressing the effects of communications towers on migratory birds.  In 2006, the Commission sought comment on what this impact may be and what requirements, if any, the Commission should adopt to ameliorate it.[5]  Evidence in the record of that proceeding and in the record compiled for the programmatic EA 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 among representatives of communications providers, tower companies, and conservation groups,[6] we require, as an interim measure, that an EA be prepared for any proposed tower over 450 feet in height.  We expect 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, we take the following actions in this Order:

·         We require that prior to the filing of a completed 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 website.  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 an existing tower to a less preferred lighting style.

 

·         We modify our 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.

 

·         We institute 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.                  In light of our 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 our commencement of the programmatic EA, we grant in part and dismiss in part the petitions for expedited rulemaking filed in WT Docket No. 08-61 in response to the court’s decision.[7]  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.[8]  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. …”[9]  In preparing the EIS, the action agency must consult with any other federal agency with jurisdiction or expertise over any environmental impact involved.[10]     

7.                  Section 204 of NEPA created the Council on Environmental Quality (CEQ) and entrusted it with oversight responsibility regarding the NEPA activities of federal agencies.[11]  To implement Section 102(2) of NEPA, CEQ promulgated regulations, 40 C.F.R. Parts 1500-1508, that “tell federal agencies what they must do to comply with the procedures and achieve the goals of the Act.”[12]  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.”[13]  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.[14]  Such regulations must follow the requirements specified in CEQ regulations.[15]   

8.               CEQ’s regulations direct agencies to identify their major federal actions as falling into one of three categories.[16]  The first such category encompasses those actions that normally have a significant environmental impact.  These actions always require an EIS.[17]  A second category of agency actions includes those actions that ordinarily may have a significant environmental impact.  For actions in this category, an agency may conduct an EA in lieu of an EIS.[18]  An EA is briefer than an EIS, and its purpose is to determine whether an EIS is required.[19]  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),[20] 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.”[21]  CEQ regulations require that an agency that chooses to establish categorical exclusions must also provide for “extraordinary circumstances”[22] 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.[23]  Thus, although categorically excluded actions presumptively are exempt from environmental review, agency decisions or “extraordinary circumstances” may require their review in the form of the preparation of EAs or EISs.[24]

10.              One of NEPA’s central goals is to facilitate public involvement in agency decisions that may affect the environment.[25]  Section 1506.6 of CEQ’s regulations governs public involvement in federal agencies’ implementation of NEPA. [26]  Section 1506.6(a) provides generally that agencies shall “make diligent efforts to involve the public in preparing and implementing their NEPA procedures.”[27]  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.[28]  Environmental documents include EAs, EISs, FONSIs, and Notices of Intent (NOIs).[29]  For actions “with effects primarily of local concern,”[30] 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.”[31]  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.”[32]

B.                 The Commission’s NEPA Process. 

11.              The NEPA Rules.  CEQ has approved the Commission’s rules implementing NEPA, 47 C.F.R. §§ 1.1301-1.1319.[33]  These rules apply to the processing of antenna structure registration applications, which the Commission has deemed to constitute a major federal action.[34]  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;[35] (2) require preparation of an EA for any proposed action that may have a significant environmental effect;[36] and (3) categorically exclude from environmental processing proposed actions deemed individually and cumulatively to have no significant environmental effect.[37]     

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.   These include facilities in officially designated wilderness areas or wildlife preserves, facilities that may affect threatened or endangered species or critical habitats, and other enumerated types of facilities that may significantly affect the environment.[38]  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.[39]  The rules currently do not identify facilities that may affect migratory birds as requiring preparation of an EA.[40] 

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).”[41]  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.[42]  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,[43] the Commission has on several occasions considered the impact of particular proposed construction projects on migratory birds,[44] and in appropriate circumstances has required modifications to protect them.[45]   

14.              NEPA Review for Towers Subject to ASR.  Section 303(q) of the 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.[46]  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]  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.[48]  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.[49]  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.[50]

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.[51]  Because the FCC’s approval of an application to register and construct an antenna structure is a major federal action, the tower owner must certify in response to current Question 38 on Form 854[52] 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.[53]  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 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.[54]  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.[55]  

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.  As noted below, 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.[56]  Because collocations are unlikely to have environmental effects, with limited exceptions they are not subject to environmental processing,[57] 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.[58]  As discussed below, 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 C.F.R. § 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.[59]

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.[60]  Of relevance here, the Commission declined to implement new public notice procedures,[61] declined to commence a programmatic EIS,[62] 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.[63]  The Commission also deferred to the ongoing Migratory Birds proceeding petitioners’ request that it take action under the Migratory Bird Treaty Act (MBTA)[64] 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,[65] 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.[66]

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 justify the programmatic consultation sought by petitioners.[67]  

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.[68]  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,[69] 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.”[70]  The court noted the “suggest[ion] during oral argument that a simple solution would be for the Commission to update its website when it receives individual tower applications.”[71]

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.”[72]  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 (Avatar Report),[73] on which the Wireless Telecommunications Bureau sought comment.[74] 

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.[75]  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.[76]  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.[77]  The Commission also tentatively concluded that, for communications towers subject to our 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.[78]  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.[79]

28.              The Commission received more than 2400 comments and reply comments in response to the Migratory Birds NPRM.[80]  In this Order, we do not take final action in the Migratory Birds rulemaking, but rather defer such action until we are able to consider the results of the programmatic EA and any subsequent EIS.  We do, 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.[81] 

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.[82]  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.[83]  Further, the Infrastructure Coalition Petition asks the Commission to apply Section 1.939 of the Commission’s rules,[84] which establishes criteria for filing a petition to deny, to objections to proposed ASR structures in order to prevent frivolous objections.[85]

30.              Ten parties filed comments on the Infrastructure Coalition Petition.[86]  Comments from communications providers and tower companies generally support the Infrastructure Coalition Petition, with some differences as to certain details.[87]  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.[88]  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.[89] 

31.              On April 14, 2009, American Bird Conservancy, Defenders of Wildlife, and National Audubon Society (Conservation Groups) filed the Conservation Groups Petition.[90]  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 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.[91]  A group of organizations led by the New Jersey Audubon Society supports the Conservation Groups Petition and notes that CEQ regulations require an EA for federal actions except in limited circumstances.[92]  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.[93]  On reply, the Conservation Groups cite additional studies that they state establish a link between bird deaths and towers.[94]

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.              As discussed above, in American Bird Conservancy, the court vacated the Commission’s denial of the Gulf Petition’s request for a programmatic EIS.[95]  In compliance with the court’s decision, Commission staff in September 2010 began work on a nationwide programmatic environmental assessment,[96] which will provide a comprehensive analysis upon which to base our consideration of the environmental effects of future proposed towers.[97]  On August 26, 2011, the Wireless Telecommunications Bureau released and sought comments on a draft programmatic EA.[98]

35.              The programmatic EA will provide the basis for the agency to determine whether an EIS is warranted.[99]  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. …”[100]  Otherwise, the Commission will make a Finding of no Significant Impact and will terminate the programmatic environmental review.[101]  As set forth in the draft programmatic EA, in determining whether the programmatic EA supports a FONSI or whether an EIS is required, we will consider whether the evidence enables us 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 regarding the effects of registered towers on threatened and endangered species and designated or proposed critical habitats.[102]  We already incorporate and implement in Section 1.1307(a) of our rules our 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.[103]  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.[104]  FWS recommended, and WTB agreed, to proceed by means of a conservation review under Section 7(a)(1).[105]  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, we first describe a new notice regime to afford members of the public an opportunity to comment on the environmental effects of prospective ASR applications.  We then discuss an interim procedural requirement under which an EA will be filed for all proposed registered towers over 450 feet in height.

38.              We have consulted with CEQ regarding these rules and procedures as required under CEQ’s rules.[106]  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.[107]  In compliance with these rules, the Wireless Telecommunications Bureau issued a Public Notice inviting comment on the draft rules and interim procedures.[108]  Thirteen formal comments were received in response to the Draft Rules Public Notice.[109]  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).[110]   We dismiss the Blooston Commenters Petition because the Draft Rules Public Notice is not a final action subject to reconsideration.[111]  Nevertheless, we treat the Blooston Commenters Petition as comments on the Draft Rules Public Notice and address its arguments below.[112]

39.              Our 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 we are adopting in this Order conform with NEPA and CEQ’s regulations.

 

A.                 The Environmental Notification Process

40.              In this Order, we adopt public notice rules and establish an environmental notification process so that members of the public have an early and well-defined avenue for raising environmental concerns.  Under this process, a prospective applicant will initially submit a partially completed Form 854 for notification purposes, and the agency will address any environmental concerns that may be raised before a completed antenna structure registration application is 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 we adopt today,[113] 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.[114]  The applicant must also provide local notice of its proposed tower through publication in a local 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)[115] through a single publication.[116]

42.              After local public notice has been provided, the Commission will post the partially completed FCC Form 854 on its ASR website 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 our rules.[117]  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.[118]  At this point, if all other required information has been provided, the Form 854 will be deemed complete and can be processed accordingly.

44.              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 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 website, 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 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.

45.              We take these actions pursuant to the Commission’s “wide discretion in fashioning its own procedures” to implement its environmental obligations.[119]  Because we are only changing our 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.[120]  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).[121]  “[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.’”[122]  In other words, whether or not a rule has a “‘substantial impact,’”[123] it qualifies for the procedural exception where, as here, it does not “‘purport to regulate or limit [parties’] substantive rights.’”[124]  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.”[125] 

46.              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”[126] or “encode[] a substantive value judgment.”[127]  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.[128]  Although Blooston Commenters and NTCA state that the draft rules afford third parties new substantive rights to receive notice of ASR applications and to request further environmental processing,[129] the right of the public to request environmental processing is already established in the Commission’s rules.  The notice requirements that we adopt only enable 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.[130]   

47.              We also note 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.[131]  As under the APA’s notice-and-comment procedures, parties have had a full opportunity to participate in our decision-making process.  Furthermore, we take the suggestions in the petitions, as well other filings in this proceeding, into account in this Order. 

48.              In this Section, we begin by setting out the actions subject to the new environmental notification process.  Second, we discuss the timing of the environmental notification process.  Third, we explain our decision to require both local and national notice.  Fourth, we discuss the timing and pleading standards governing Requests for further environmental review.  Fifth, we discuss applications that require a service-specific application in addition to FCC Form 854.  Finally, we discuss the treatment of applications that are pending on the effective date of the new environmental notification rules and procedures.  The environmental notification process is discussed in more detail in Appendix E.

1.                  Actions Subject to Notice

49.              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,[132] 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.  We find no basis to limit the environmental notification process adopted herein to the Gulf Coast towers at issue in the court case.[133]

50.              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 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.  

51.              Consistent with this principle, we apply the environmental notification process to all ASR applications for new towers (except as described in paragraph 56, infra).  We reject 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.[134]  While we recognize 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.[135]  Based on currently available evidence, we 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 our rules.  We therefore apply the environmental notification requirement to registered towers under 350 feet in height.[136]  Although we decide that such towers will be placed on public notice, we contemplate that a particularly clear showing would be required to demonstrate that such towers may have effects on migratory birds.

52.              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.[137]  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.   

53.              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),[138] or construction or excavation more than 30 feet beyond the existing tower property.[139]  Consistent with this recommendation, as an interim measure pending completion of our programmatic environmental analysis, we will not require the environmental notification process for any replacement tower at the same location as an existing tower,[140] 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[141] or construction or excavation more than 30 feet beyond the tower property.  Similarly, we 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.   

54.              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.[142]  However, recommendations from DOI and FWS based on recent scientific literature strongly suggest that L-810 steady-burning red lights pose the greatest danger of migratory bird mortality and that the differences among styles of flashing or blinking lights are not statistically significant.[143]  At least one signatory to the MOU recommends that the Commission verify the continuing accuracy of the order of tower lighting styles specified in the MOU.[144]  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.[145]  In these circumstances,[146] pending completion of our programmatic environmental analysis, we 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.[147]  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,[148] but will be required where the lighting is changed to a less preferred lighting style.[149]

55.              Where information pertaining to a prospective antenna structure registration is amended after environmental notification but prior to grant of an ASR application, we 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, we 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.

56.              Exception for certain towers reviewed by other federal agencies.  We provide 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.[150]  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.[151]  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.  We caution 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.[152]  In those circumstances, we 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, we 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).  We delegate 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 our environmental notification process.   

57.              Limitation to towers subject to antenna structure registration.  We clarify that the environmental notification process will be applicable only to towers that are registered pursuant to Part 17 of our 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.[153]  We note, 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).[154]  We will also continue to entertain informal objections to such construction based on environmental considerations pursuant to Section 1.1313(b).[155]     

2.                  Timing of Environmental Notice

58.              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.[156]  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.[157]  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.[158]  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. 

59.              In addition, under the new process EAs for proposed registered towers will be submitted with a partially completed Form 854, made available for public comment, and reviewed prior to filing of the ASR application.[159]  Accordingly, the 30-day comment period will be announced on the Commission’s ASR website instead of through a notice published in the Daily Digest.[160]  Otherwise, the processing of EAs for registered towers will be substantially the same as today.  Because the environmental notification process we adopt 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

60.              We require 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.  We recognize 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,[161] while other industry commenters have suggested that we adopt local notice.[162]  Their reasons in favor of one approach or another are discussed here, but in effect those reasons support using both forms of notice. 

61.              National notice provided online at the Commission’s website was an approach suggested by the court.[163]  We find that the ASR website 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.[164]  The web-based process that we are creating will provide national accessibility, result in the creation of an electronic database, and reduce the potential for human error and application backlogs.[165]

62.               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 we promulgate today are modeled after those regimes.[166] 

63.              We find that by requiring both local and national notice, we can best meet our statutory responsibility regarding the development of procedures that incorporate environmental considerations into agency decision-making.[167]  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.”[168]  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.”[169]  In this regard, our 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.

64.              In sum, as described more fully in Appendix E, we 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 website on the date requested by the applicant, which must be on or after the date the applicant provides local notice.[170]  Interested parties will have an opportunity to respond to these notices by filing Requests for further environmental review with the Commission. 

4.                  Public Comment on Environmental Notifications

65.              As noted above, 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 our rules.[171]  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 website.[172]  Requests will be subject to the pleading standard that is set forth in Section 1.1307(c) of our rules.  Late pleadings or pleadings that do not meet the standards in Section 1.1307(c) may be subject to dismissal. 

66.              In setting the period to file a Request at 30 days, we apply 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.[173]  We reject the Infrastructure Coalition’s proposal to set the period to object at 14 days,[174] as we find that such a timeframe is inadequate to allow for meaningful public participation in this context.  At the same time, we reject the 60-day comment period proposed by the Conservation Groups.[175]  We do not believe that interested parties should need that much time to file comments, particularly as we do not require the objecting party to include “a comprehensive study of impacts ... to evaluate whether the requirements of applicable environmental laws ... are properly met.”[176]  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.”[177]  Therefore, we conclude that a 60-day comment period would unnecessarily obstruct the timely deployment of services while providing minimal benefit. 

67.              Pursuant to Section 1.1307(c) of our 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.”[178]  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.”[179]   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.”[180]   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.[181]

68.              In its Petition, the Infrastructure Coalition asks us 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.[182]   Several commenters representing licensees and tower owners support the Infrastructure Coalition’s petition.[183]   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.[184]

69.              We decline 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.[185]   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.[186]  Thus, the Request for environmental processing in response to the environmental notification falls outside the scope of Section 1.1313(a).

70.              Moreover, we find 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).[187]   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.[188]  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 our NEPA procedures by those lacking the legal sophistication or financial wherewithal to participate formally.[189]  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 our existing practice of accepting informal objections to applications where appropriate under Section 1.1313(b).[190]  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).[191]  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.

5.                  Facilities That Also Require Service-Specific Applications

71.              Under the Commission’s rules, some proposed towers are subject to both ASR and service-specific application requirements.[192]  Our 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)[193] 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[194] and satellite earth station[195] 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.

72.              Some commenters argue that Section 1506.6 of the CEQ rules requires that we notify the public separately regarding each application associated with a proposed antenna structure subject to registration under Part 17.[196]  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.[197]  Consistent with current procedures that generally require only one NEPA review for a single proposed antenna structure, we are not persuaded that, from an environmental standpoint, the decision-making involved in processing service-specific construction permit or license applications raises discrete issues from those involved in determining whether to register a tower from which licensed communications service will be provided.  Our obligation to accommodate public participation in our 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.  

73.              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, we 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.[198]  Procedures for achieving this end in each of the licensed services are set out in Appendix E. 

74.              We also implement 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.  LMCC expresses concern that if we 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.[199]  To address such concerns, we 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 website.  In addition, in order to guard against speculative reservations of frequencies or sites, we also require FCC Form 601 applicants that have not yet obtained their ASR Registration Number to provide the Bureau with an update of the status of their environmental review every 60 days.  Further details of this process are provided in Appendix E.

75.              We clarify 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.[200] 

6.                  Applications Pending on the Effective Date of the Environmental Notification Process

76.              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 supra in Section III.A.1.  Similarly, amendments to an EA may require environmental notification. 

B.                 The Processing of ASR Applications Pending Completion of the Commission’s Programmatic NEPA Analysis

77.              We are obligated under NEPA to avoid irretrievable commitments of resources without assessing the environmental effects of our actions and “to predict the environmental effects of a proposed action before the action is taken and those effects are fully known.”[201]  Accordingly, we take interim measures to protect migratory birds pending completion of the programmatic EA and this proceeding.  Our expectation is that the record developed in the course of preparing the nationwide programmatic EA may provide a basis to determine what, if any, permanent rule changes are necessary to effectuate the Commission’s 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 outstanding rulemaking in WT Docket No. 03-187.   

78.              Meanwhile, we establish interim processing procedures to protect migratory birds pending the completion of this process.[202]  Specifically, we apply Section 1.1307(d) of the Commission’s rules[203] to require that an EA that includes a discussion of potential impacts on migratory birds be submitted 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.[204]  For all other registered towers, an EA will not be routinely required except as specified in Section 1.1307(a) or (b).[205]  The Bureau 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.

79.              We adopt these interim measures pursuant to the mandate in Section 1.1307(d) of the Commission’s rules that the processing Bureau shall require an EA if it determines that an otherwise categorically excluded proposal may have a significant environmental effect.[206]  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.[207]  Accordingly, on our own motion, we adopt these interim standards to require an EA for certain categories of towers that are most likely to have significant effects on migratory birds.[208]

80.              Our 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.  Data from existing studies show no evidence of large-scale mortality for towers less than approximately that height.[209]  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.[210]  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.[211]  Other studies have also recognized tower height as a factor potentially affecting avian collisions.[212]  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,[213] we find that there is sufficient evidence to give special attention to tall towers on an interim basis while we complete the programmatic EA and any subsequent programmatic EIS, if required. 

81.              We adopt the EA requirement for proposed towers over 450 feet in height AGL as a reasonable measure for the protection of migratory birds pending completion of the programmatic EA, which will evaluate whether scientific evidence supports adoption of permanent measures.[214]  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.[215]  In particular, under the MOU, new towers taller than 450 feet AGL would require an EA for avian effects.[216]  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.[217]  The inclusion in the MOU of a 450-foot threshold for an interim EA filing requirement supports our 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.

 

82.              In assessing, pursuant to Section 1.1307(c) and (d), whether further environmental processing is necessary for particular towers 450 feet in height or less AGL, we expect that the processing Bureau will consider factors including the height of the tower and the lighting to be used.  Consistent with the MOU, we recognize 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.  We further expect that the Bureau will afford significant weight to the absence of public objection in response to the notice of proposed construction that we require today.[218]

83.              We clarify 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.  We find that this provision is necessary in order to ensure that prospective applicants for towers just above 450 feet AGL do not game the system.

84.              For purposes of clarity, we add a note to Section 1.1307(d) of the Commission’s 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 the 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.  We delegate authority to the Wireless Telecommunications Bureau to adopt appropriate changes to its processing procedures, processes, and forms to apply these interim standards.    

 

IV.              procedural matters

A.                 Regulatory Flexibility Analysis

85.              The Commission has determined that the environmental notification rules contained in Appendix D 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

86.              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), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

 

V.                 ORDERING CLAUSES 

87.              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 C.F.R. § 1506.6, the environmental notification procedures set forth in the attached Appendix D ARE ADOPTED.

88.              IT IS FURTHER ORDERED that the rules adopted herein WILL BECOME EFFECTIVE upon Commission publication of a notice in the Federal Register announcing their approval by the Office of Management and Budget (OMB).  The rules and procedures adopted in this Order contain new or modified information collections that require approval by OMB under the Paperwork Reduction Act.   

89.              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 C.F.R. § 1.1307(d), the Wireless Telecommunications Bureau SHALL apply the interim antenna structure registration standards set forth in Section III.B of this Order.

90.              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. 

91.              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.

92.              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.

93.              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).

 

 

FEDERAL COMMUNICATIONS COMMISSION

 

 

 

Marlene H. Dortch

                                                                        Secretary


APPENDIX A

 

List of Commenters in WT Docket No. 08-61

 

Commenters in Response to Infrastructure Coalition’s Petition for Expedited Rulemaking

 

Comments

 

American Bird Conservancy, Defenders of Wildlife, and National Audubon Society (Conservation

            Groups)

American Tower Corporation (ATC)

The Association of Public-Safety Communications Officials-International, Inc. (APCO)

AT&T, Inc., on behalf of AT&T Mobility LLC and its wholly owned and controlled

wireless affiliates (AT&T)

Crown Castle USA (Crown Castle)

The Land Mobile Communications Council (LMCC)

National Telecommunications Cooperative Association (NTCA)

Sprint Nextel Corporation (Sprint Nextel)

United States Cellular Corporation (USCC)

Verizon Wireless

 

Commenters in Response to Conservation Groups’ Petition for Expedited Rulemaking

 

Comments

 

Alachua Audubon Society

Association of Public-Safety Communications Officials-International, Inc.  (APCO)

Audubon Society of Central Arkansas

Aviation Spectrum Resources, Inc. (ASRI)

Buena Vista Audubon Society

Choctawhatchee Audubon Society

CTIA – The Wireless Association, National Association of Broadcasters, National Association of Tower

Erectors, and PCIA – The Wireless Infrastructure Association (Collectively known as The Infrastructure Coalition)

Defenders of Wildlife

Fixed Wireless Communications Coalition (FWCC)

Herbert, Steven

Houston Audubon Society

Maranatha Broadcasting Company, Inc. (Maranatha)

National Telecommunications Cooperative Association (NTCA)

Naugatuck Valley Audubon Society

New Jersey Audubon Society, Virginia Society of Ornithology, The Audubon Society of Northern

            Virginia, Bird Conservation Network, Massachusetts Audubon Society, Songbirds of Northern

Indiana, Inc., Endangered Habitats League, ECOAN, Golden Gate Raptor Observatory, Manistee Audubon Society, Friends of Dyke Marsh, Salem Audubon Society, Central New Mexico Audubon Society, The Swan Research Program, Inc., Otter Creek Audubon Society, Connecticut Audubon Society, The Institute for Bird Populations, Riveredge Bird Club, Delaware Valley Ornithological Club, Pomona Valley Audubon, Maryland Ornithological Society, Howard County Bird Club, New York City Audubon, Desert Cities Bird Club, Cornell Lab of Ornithology, Conservation Chair, Ric Zarwell, Endangered Habitats League, Avian Research and Conservation Institute, Rainforest Biodiversity Group, Inc., Birds & Buildings Forum, Seattle Audubon, Chicago Ornithological Society, Madison Audubon Society, Golden Gate Audubon, Wisconsin Audubon Council, Tennessee Ornithological Society, Wildlife Center of Virginia, North Fork Audubon Society, and Oregon Wild (New Jersey Audubon Society et al.).

OCAS, Inc.

Pomona Valley Audubon Society

Verizon Wireless

West Pasco Audubon Society 

 

Reply Comments

 

American Bird Conservancy, Defenders of Wildlife and National Audubon Society (Petitioners)

Christian Broadcasting System, Ltd.

CTIA – The Wireless Association, National Association of Broadcasters, National Association of Tower

Erectors, and PCIA – The Wireless Infrastructure Association (Collectively known as The Infrastructure Coalition)

United States Cellular Corporation (USCC)


 

APPENDIX B

 

List of Commenters in WT Docket No. 03-187[219]

 

Comments

Advantage Cellular Systems, Inc. d/b/a DTC Wireless

Alabama Ornithological Society

American Bird Conservancy

American Bird Conservancy, Center for Sustainable Economy (Formerly Forest Conservation Council),

            National Audubon, The Humane Society of the United States, Friends of the Earth

Anne Arundel County, Maryland

Applied Technology Group, Inc.

The Association of Public Television Stations

AT&T Mobility

Audubon Connecticut

Berliner, Steve

Birmingham Audubon Society

Bridgeport Indian Colony

Center for Sustainable Economy (Formerly Forest Conservation Council)

Citicasters Licenses, L.P.

Cotton, Karen Imparato

CTIA – The Wireless Association, National  Association of Broadcasters, National Association of Tower Erectors, PCIA – The Wireless Infrastructure Association, The Wireless Communications Association International, Inc., and the Association for Maximum Service Television, Inc. (Infrastructure Coalition)

Damro, Kenneth

Defenders of Wildlife and the National Audubon Society

Derig, Gene and Marilyn

Dornan, Laura

Eastern Band of Cherokee Indians Tribal Historic Preservation Office

Eastern Shore Radio

The EMR Policy Institute

Evans, William R.

Fenwick, Dr. George

Fortney, Judith

Friends of the Earth

Gehring, Dr. Joelle

Harrison, Maryanne

Hector, Town of

Holian, Holy Holily

The Hopi Tribe

The Humane Society of the United States

Kormendy, John

Kosek, Kateri

Land Mobile Communications Council (LMCC)

Land Protection Partners, on behalf of American Bird Conservancy, Center for a Sustainable Economy,

            and The Humane Society of the United States

Leggett, Nickolaus E.

Louisiana Mosquito Control Association

McClelland, Marilyn

McDonald, Neil

McGee, Jean

Manville, Dr. Albert M.

Maranatha Broadcasting Company, Inc. (Maranatha)

Maryland Institute for Emergency Medical Services Systems, State of MD

Maryland State Highway Administration, State of Maryland

Mason, Andrew

Michigan Department of Information Technology, State of Michigan

Michigan Department of Natural Resources

Miller, Wayne R.

The Mobile Bay Audubon Society

Morgan, David

Morris Broadcasting Company of New Jersey, Inc.

Named State Broadcasters Associations (Alabama Broadcasters Association, Alaska Broadcasters Association, Arizona Broadcasters Association, Arkansas Broadcasters Association, California Broadcasters Association, Colorado Broadcasters Association, Connecticut Broadcasters Association, Florida Association of Broadcasters, Idaho State Broadcasters Association, Illinois Broadcasters Association, Indiana Broadcasters Association, Iowa Broadcasters Association, Kansas Association of Broadcasters, Kentucky Broadcasters Association, Louisiana Broadcasters Association, Maine Association of Broadcasters, MD/DC/DE Broadcasters Association, Massachusetts Broadcasters Association, Michigan Broadcasters Association, Minnesota Broadcasters Association, Mississippi Association of Broadcasters, Missouri Broadcasters Association, Montana Broadcasters Association, Nebraska Broadcasters Association, Nevada Broadcasters Association, New Hampshire Association of Broadcasters, New Mexico Broadcasters Association, The New York State Broadcasters Association, North Dakota Broadcasters Association, Ohio Association of Broadcasters, Oklahoma Association of Broadcasters, Oregon Association of Broadcasters, Pennsylvania Association of Broadcasters, South Carolina Broadcasters Association, South Dakota Broadcasters Association, Tennessee Association of Broadcasters, Texas Association of Broadcasters, Utah Broadcasters Association, Vermont Association of Broadcasters, Washington State Association of Broadcasters, Wisconsin Broadcasters Association, and Wyoming Association of Broadcasters)

National Public Safety Telecommunications Council

National Telecommunications Cooperative Association (NCTA)

New Mexico, State of, Department of Game and Fish

New York City Audubon

The New York State Ornithological Association, Inc.

Nudd, Rick

Oeid, Lynda

Olsen, Anne

Positive Alternative Radio, Inc., Positive Radio Group, Inc. (Ohio), Big River Radio, Inc., Base

            Communications, Inc., WKGM, Inc., WAMN, Inc.

Potyak, Joseph

Prince George’s County, Maryland

Regional Planning Committee 42 for 800 MHz

Riveredge Bird Club

Robitzsch, John and Jane

St. Tammany Parish Mosquito Abatement District 2

Scott, Barbara

Scotts Valley Band of Pomo Indians

Sessions, Senator Jeff, on behalf of Georgie K. Stanford

Sharp, John

Sheehan, Robbie

Shire, Gavin

Sierra Club National Wildlife & Endangered Species Committee

South Dakota, State of

South Dakota Bureau of Information and Telecommunications

South Dakota Public Utilities Commission

Sprint Nextel Corporation (Sprint Nextel)

Swanson, Sandra

Thomas, David

Union Telephone Company

United States Cellular Corporation (USCC)

United States Fish and Wildlife Service

Urban Conservation Treaty for Migratory Birds Partners of Portland, Oregon

Utilities Telecom Council

Verizon Wireless

Virginia, the Commonwealth of

Wagner, James P.

Walsh, Elizabeth

Winstanley Broadcasting, Inc.

Young, Eugene A.

 

 

Reply Comments

 

American Bird Conservancy, Center for Sustainable Economy (Formerly Forest Conservation

Council), National Audubon Society, The Humane Society of the United States, and Friends of the Earth

American Tower Corporation

AT&T Mobility LLC

Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP

CTIA – The Wireless Association, National  Association of Broadcasters, National Association of Tower Erectors, PCIA – The Wireless Infrastructure Association, The Wireless Communications Association International, Inc., and the Association for Maximum Service Television, Inc. (Infrastructure Coalition)

Fenwick, Dr. George

Hawaii Association of Broadcasters and Rhode Island Broadcasters Association

Island Airwaves, Inc.

National Telecommunications Cooperative Association (NCTA)

RC Technologies Corporation

United States Cellular Corporation (USCC)


 


APPENDIX C

 

List of Commenters in WT Docket No. 08-61

in Response to Draft Rules Public Notice

 

American Bird Conservancy, Defenders of Wildlife, and Audubon (Conservation Groups)

AT&T, Inc. (AT&T)

Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP (Blooston Commenters)

Commonwealth of Virginia Department of State Police (Virginia State Police)

CTIA – The Wireless Association, National Association of Broadcasters, National Association of Tower Erectors, and PCIA – The Wireless Infrastructure Association (Infrastructure Coalition)

James, H. J.

National Telecommunications Cooperative Association (NTCA)

NextG Networks, Inc. (NextG)

NTCH, Inc. (NTCH)

Southern Company Services, Inc. (Southern)

United States Department of Interior, Office of Environmental Policy and Compliance (DOI)

Vanhooser, Mike (President, Nova Electronics)

Verizon Wireless


 


APPENDIX D

 

Final Rules

 

 

Part 1 of the Commission’s Rules is amended as follows:

 

PART  1 – PRACTICE AND PROCEDURE

 

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(j), 160, 201, 225, and 303.

 

            2. Section 1.61 is amended by revising paragraph (a)(2) to read as follows:

 

§ 1.61 Procedures for handling applications requiring special aeronautical study.

 

(a)                *****

 

(2)  In accordance with § 1.1307 and § 17.4(c) of this chapter, the Bureau will address any environmental concerns prior to processing the registration.

 

*****

 

3. Section 1.923 is amended by revising paragraphs (d) and (e) to read as follows:

 

§ 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 website pursuant to § 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 § 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 § 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 § 1.1307 of this chapter.  If the applicant answers affirmatively, an Environmental Assessment, required by §1.1311 of this chapter, must be filed with the application and environmental review by the Commission must be completed prior to construction. 

 

*****

           

4. Section 1.929 is amended by revising paragraph (a)(4) to read as follows:

 

§ 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 § 1.1307 of this chapter, unless the facility has been determined not to have a significant environmental effect through the process set forth in § 17.4(c) of this chapter.

 

*****

 

5.      Section 1.934 is amended by adding a new paragraph (g) to read as follows:

 

§ 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 § 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.

 

6.      Section 1.1306 is amended by revising Note 2 to read as follows:

 

§ 1.1306 Actions which are categorically excluded from environmental processing.

 

*****

 

            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 §§ 1.1307 and 1.1308, except as required by the Bureau pursuant to the Note to § 1.1307(d).

 

7.      Section 1.1307 is amended by adding a note to paragraph (d) that reads as follows:

 

§ 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; (2) modification or replacement of an existing antenna structure involving a substantial increase in size as defined in § 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 § 17.4(c)(1)(C) of this chapter.  The Bureau shall consider whether to require an EA for other antenna structures subject to § 17.4(c) of this chapter in accordance with § 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 § 17.4(c) of this chapter.      

 

*****

 

Part 17 of the Commission’s Rules is amended as follows:

 

PART 17 – CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES

1.      The authority citation for Part 17 continues to read as follows:

 

Authority: §§ 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.

 

            2.  Section 17.4 is amended by revising paragraph (c) to read as follows:

 

§ 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:

(A) For notification only, such as to report a change in ownership or contact information, or the dismantlement of an antenna structure;

(B) 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 § 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;

(C) 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):  (1) no lights; (2) FAA Lighting Styles that do not involve use of red steady lights; and (3) 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;

(D) For replacement of an existing antenna structure at the same geographic location that does not require an Environmental Assessment (EA) under Sections 1.1307(a)-(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 § 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;

(E) For any other change that does not alter the physical structure, lighting, or geographic location of an existing structure; or

(F) 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 § 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 §§ 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 website.  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 website for a period of 30 days.

(5) Requests for environmental processing.  Any Request filed by an interested person pursuant to §§ 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.

(A) Service and pleading cycle. The interested person or entity shall serve a copy of its Request on the prospective ASR applicant pursuant to § 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.

(B) 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 § 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 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)(C) 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 § 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 §§ 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 website 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 C.F.R. §§1.1301-1.1319) 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 § 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 § 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 § 1.1314 of this chapter. 

(9) Transition rule.  An antenna structure registration application that is pending with the Commission as of [INSERT EFFECTIVE DATE OF RULE] shall not be required to complete the environmental notification process set forth in this paragraph.  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

 

1.      The authority citation for Part 22 continues to read as follows:

 

Authority: 47 U.S.C. §§ 154, 222, 303, 309 and 332.

 

2.      Section 22.143 is amended by revising paragraph (d)(4) to read as follows:

 

§ 22.143 Construction prior to grant of application.

 

*****

(d)*****

(4) For any construction or alteration that would exceed the requirements of § 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

 

1.      The authority citation for Part 24 continues to read as follows:

 

Authority: 47 U.S.C. §§ 154, 301, 302, 303, 309 and 332.    

 

2.      Section 24.2 is amended by revising paragraphs (b) and (f) to read as follows:

 

§ 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 § 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

 

1.      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, and 332.     

 

2.      Section 25.113 is amended by revising paragraph (a) to read as follows:

 

§ 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 C.F.R. § 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 § 17.4(c) of this chapter.  

 

*****

 

3.      Section 25.115 is amended by revising paragraph (c)(2)(vi)(A)(4) to read as follows:

 

§ 25.115 Applications for earth station authorizations.

 

*****

 


(c)(2)(vi)(A) *****

 

(4) The applicant has determined that the facility(ies) will not significantly affect the environment as defined in § 1.1307 of this chapter after complying with any applicable environmental notification procedures specified in § 17.4(c) of this chapter.

 

*****

 

PART 27 – MISCELLANEOUS WIRELESS COMMUNICATION SERVICES

 

1.      The authority citation for Part 27 continues to read as follows:

 

Authority: 47 U.S.C. §§ 154, 301, 302, 303, 307, 309, 332, 336 and 337.    

 

            2.  Section 27.3 is amended by revising paragraphs (b) and (f) to read as follows:

 

§ 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 § 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

 

1.      The authority citation for Part 80 continues to read as follows:

 

Authority: 47 U.S.C. §§ 154, 303, 307(e), 309, and 332.       

 

            2.  Section 80.3 is amended by revising paragraphs (b) and (e) to read as follows:

 

§ 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 § 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

 

1.      The authority citation for Part 87 continues to read as follows:

 

Authority: 47 U.S.C. §§ 154, 303, and 307(e).           

 

            2.  Section 87.3 is amended by revising paragraphs (b) and (e) to read as follows:

 

§ 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 § 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

 

1.      The authority citation for Part 90 continues to read as follows:

 

Authority: 47 U.S.C. §§ 154(i), 11, 303(g), 303(r) and 332(c)(7).

 

            2.  Section 90.5 is amended by revising paragraphs (b) and (f) to read as follows:

           

§ 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 § 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.

 

*****

 

            3.  Section 90.129 is amended by revising paragraph (g) to read as follows:

 

§ 90.129 Supplemental information to be routinely submitted with applications.

 

*****

 

(g) The environmental assessment required by §§ 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 § 17.4(c) of this chapter rather than with the application filed under this part. 

 


*****


APPENDIX E

 

Steps in the Environmental Notification Process

 

This Appendix 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.[220]  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.  We delegate 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.

 

I.                   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.

 

o  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.

 

o  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.

 

o  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.

 

o  The text of the local notice must include:

 

§  The descriptive information submitted in the Form 854 as part of the environmental notification process;

 

      • 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 website, including the relevant electronic and regular mail addresses and the unique Form 854 File Number issued by the FCC; and

 

      • Instructions for serving a copy of any Request upon the applicant.

 

o  Applicants may provide local notice under both this process and the Commission’s procedures implementing section 106 of the National Historic Preservation Act (NHPA)[221] through a single publication, provided that:

 

§  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.

 

§  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.

 

o  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 website.  This information will remain posted for 30 days.

 

o  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.

 

II.                Facilities That Also Require Service-Specific Applications

 

  • 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.

 

A. ULS Applicants. 

 

  • Wireless radio, public safety, and other applicants whose proposed towers are subject to registration and require a license application on FCC Form 601must 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.

 

o  In the event an EA is required, it shall be submitted only in connection with Form 854.  WTB will provide instructions at a later date for completing the environmental question on Form 601 in such situations.

 

o  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 website.

 

o  Such an applicant shall provide its Form 854 File Number in place of the ASR Registration Number that is currently required.

 

o  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.

 

o  Such an update must reflect active pursuit of the environmental review.

 

o   Updates will not be required while action on the environmental notification submission 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 submitted EA.

 

o  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.

 

B. 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 complete the Form 854 environmental notification process and, when necessary, attach an EA to both its Form 854 environmental notification submission and its application for a broadcast construction permit, FCC Form 301, 318, 340, 346, or 349.

 

o  The same EA must be submitted with both the broadcast construction permit application and the Form 854 environmental notification submission.

 

o  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.

 

o  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.

 

o  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.

 

o  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.

 

§  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.

 

o  FCC Form 175 does not contain an environmental certification, and no environmental review or environmental notice is necessary to submit it.

 

o   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.

 

o  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.  

 

C. 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 filing a complete FCC Form 854 to register the antenna structure.  

 

o  An applicant filing FCC Form 312 will be required to attach a completed FCC Form 854 to its FCC Form 312 application.

 

o  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.

 

o  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.  

 

III.              Amendments

 

  • Amendments to FCC Form 854 that are filed after the provision of local notice or posting on the FCC’s website do not require new local or national notice if made only for the following purposes:

 

o  Changes to administrative information or other changes not affecting the structure’s location, height, lighting, or physical configuration.

 

o  Changes to a more preferred or equally preferred lighting style, including removal of proposed lighting.[222]

 

o  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.

 

o  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 website and opportunity for comment but not a new local notice (see Section VI below).

 

IV.               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 website.  Late filed Requests may be subject to dismissal.

 

    • WTB 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.

 

    • 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 submissions 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.

 

V.                  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.

 

  • 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.

 

VI.               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 submitted as part of the environmental notification process.

 

    • An applicant may determine that an EA is necessary when it makes its initial submission, in which case it will attach the EA to that submission. 

 

    • Alternatively, an EA may be supplied at a later date by amending a previous submission, 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 website, thus commencing a 30-day period for public comment.

 

    • If the EA is submitted with the initial partially completed Form 854 submission, it must also be placed on local notice in the same manner as an environmental notification submission without an attached EA.

 

    • 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.

 

§  The prospective applicant must serve the EA on any party that has filed a Request in response to the earlier notice.

 

§  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.


 

STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

 

 

Re:       In the Matter of National Environmental Policy Act Compliance for Proposed Tower Registrations; In the Matter of Effects of Communications Towers On Migratory Birds, WT Docket No. 08-61, WT Docket No. 03-187, Order on Remand

 

               Today, at long last, the Commission has responded to the DC Circuit's rebuke to our previous rules that fell short of meeting our responsibilities under the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act.  

 

While I am disappointed it has taken nearly four years to respond to the court, I am encouraged these interim rules will give more parties greater opportunity to register their concerns about migratory birds when a tower goes up, including ranking tower lighting styles based on their effects on migratory birds.  To be sure, we are mindful of the need for towers for quality voice and data services.  But this isn't an either/or proposition - we can fulfill both these critical purposes with some careful work.  

 

I applaud the Infrastructure Coalition and Conservation Groups for working together to offer proposals that respond to the court and pave the way to interim rules.  I also want to thank the Wireless Bureau and Office of General Counsel for their roles in getting us here, including our ongoing coordination with the Federal Aviation Administration on tower lighting and its effects on migratory birds.

 

We have waited far too long for these interim requirements.  Let's hope that we do not have to wait nearly as long to get permanent rules in place.  

 



[1] 516 F.3d 1027 (D.C. Cir. 2008) (American Bird Conservancy).

[2] Id. at 1035 (citing NEPA, 42 U.S.C. § 4321 et seq.).   

[3] Id. at 1033-34.

[4] 16 U.S.C. § 1531 et seq.

[5] In the Matter of Effects of Communications Towers on Migratory Birds, WT Docket No. 03-187, Notice of Proposed Rulemaking, 21 FCC Rcd 13241 (2006) (Migratory Birds NPRM or Migratory Birds proceeding).

[6] Memorandum of Understanding Concerning Interim Antenna Structure Registration Standards, submitted May 4, 2010 (MOU).  The MOU is signed by the Infrastructure Coalition, consisting of CTIA—The Wireless Association, the National Association of Broadcasters, PCIA—The Wireless Infrastructure Association and the National Association of Tower Erectors (Infrastructure Coalition), and by the Conservation Groups, consisting of the American Bird Conservancy, Inc., Defenders of Wildlife, and the National Audubon Society (Conservation Groups).     

[7] Pending before the Commission are: (a) Petition for Expedited Rulemaking, filed May 2, 2008, by CTIA—The Wireless Association, National Association of Broadcasters, National Association of Tower Erectors, and PCIA—The Wireless Association (Infrastructure Coalition), filed May 2, 2008 (Infrastructure Coalition Petition); and (b) Petition for Expedited Rulemaking and Other Relief, filed April 14, 2009,  by American Bird Conservancy, Defenders of Wildlife and National Audubon Society (Conservation Groups) filed April 14, 2009 (Petition).  Both Petitions requested, in part, that the Commission adopt rules to carry out the mandate of the court.      

[8] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50 (1989).

[9] 42 U.S.C. § 4332(2)(C).

[10] Id.

[11] 42 U.S.C. § 4344. 

[12] 40 C.F.R. § 1500.1(a).

[13] 40 C.F.R. § 1500.3.

[14] 42 U.S.C. § 4332(2)(B) (“[A]ll agencies of the federal government shall … (B) identify and develop procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations.”). 

[15] 40 C.F.R. §§ 1507.1 (“All agencies of the Federal Government shall comply with these regulations.  It is the intent of these regulations to allow each agency flexibility in adapting its implementing procedures authorized by § 1507.3 to the requirements of other applicable laws.”), 1507.3 (“Each agency shall consult with the Council while developing its procedures. … The[se] procedures shall be adopted [and revised] only after an opportunity for public review and after review by the Council for conformity with the Act and these regulations.”).

[16] See 40 C.F.R. § 1507.3(b)(2).

[17] An EIS is a detailed statement by the responsible federal official on:  “(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.”  42 U.S.C. § 4332(2)(C).  See also 40 C.F.R. § 1508.11.

[18]  47 C.F.R. § 1.1307.  See also 47 C.F.R. § 1.1308(b) (“The EA is a document which shall explain the environmental consequences of the proposal and set forth sufficient analysis for the Bureau or the Commission to reach a determination that the proposal will or will not have a significant environmental effect.”); 47 C.F.R. § 1.1311(a) (information to be included in an environmental assessment).

[19] Pursuant to CEQ’s regulations, an environmental assessment is a document that: (1) discusses the need for a proposed action, the alternatives, and the environmental impacts of the proposed action and alternatives; (2) lists the agencies and persons consulted; and (3) provides evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.  40 C.F.R. § 1508.9.  See also 40 C.F.R. § 1501.4(b).

[20] See 40 C.F.R. § 1508.13.

[21] See 40 C.F.R. § 1507.3(b)(2)(ii).  See also 40 C.F.R. § 1508.4 (definition of categorical exclusion).    

[22] See 40 C.F.R. § 1508.4.

[23] Id.

[24] 40 C.F.R. §§ 1508.4, 1507.3(b)(1).

[25] 40 C.F.R. §§ 1500.1(b), 1500.2(d) (“Federal agencies shall to the fullest extent possible … encourage and facilitate public involvement in decisions which affect the quality of the human environment.”); Robertson v. Methow Valley Citizens Council, 490 U.S. at 349 (“The statutory requirement that a federal agency contemplating a major action prepare such an [EIS] … guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.”).

[26] 40 C.F.R. § 1506.6.

[27] 40 C.F.R. § 1506.6(a).

[28] 40 C.F.R. § 1506.6(b).

[29] 40 C.F.R. § 1508.10; see also 40 C.F.R. § 1508.22 (describing a Notice of Intent that an EIS will be prepared and considered).

[30] 40 C.F.R. §1506.6(b)(3).

[31] 40 C.F.R. §§1506.6(b)(2), (b)(3).  See also Environmental Coalition of Ojai v. Brown, 72 F.3d 1411 (9th Cir. 1995).

[32] Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026-01 (Mar. 23, 1981).

[33] See In the Matter of 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, ¶ 18 (2006) (citing Amendment of Environmental Rules in Response to New Regulations Issued by the Council on Environmental Quality, Report and Order, 60 Rad. Reg. 2d (P & F) 13, FCC 85-626, ¶ 3 (rel. Mar. 26, 1986)).

[34] In the Matter of Streamlining the Commission’s Antenna Structure Clearance Procedure, Report and Order, 11 FCC Rcd 4272, 4289 ¶ 41 (1995) (finding that the registration of an antenna structure constitutes a major federal action subject to NEPA) (Antenna Structure Clearance R&O).  Accord, In the Matter of Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, Report and Order, 20 FCC Rcd 1073, 1084 ¶ 27 (2004), aff’d sub nom. CTIA-Wireless Ass’n v. FCC, 466 F.3d 105 (2006) (explaining that the Commission’s treatment of tower registrations as federal undertakings within the meaning of Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, is a permissible interpretation in light of the preconstruction approval process that it has implemented to assure that communications towers are not a risk to air safety under Section 303(q) of the Communications Act).       

[35] 47 C.F.R. §§ 1.1305, 1.1314, 1.1315, 1.1317.  The Commission has found no common pattern that would enable it to specify actions that automatically require an EIS.  47 C.F.R. § 1.1305.

[36] 47 C.F.R. § 1.1307.  See also 47 C.F.R. § 1.1308(b)(3) (“The EA is a document which shall explain the environmental consequences of the proposal and set forth sufficient analysis for the Bureau or the Commission to reach a determination that the proposal will or will not have a significant environmental effect.”); 47 C.F.R. § 1.1311 (information to be included in an environmental assessment).

[37] 47 C.F.R. § 1.1306.

[38] Section 1.1307(a) specifies that Commission actions with respect to the following types of facilities may significantly affect the environment: (1) facilities that are to be located in an officially designated wilderness area; (2) facilities that are to be located in an officially designated wildlife preserve; (3) facilities that may affect listed threatened or endangered species or designated critical habitats, or are likely to jeopardize the continued existence of any proposed threatened or endangered species or likely to result in the destruction or adverse modification of proposed critical habitats, as determined by the Secretary of Interior; (4) facilities that may affect historic properties  listed or eligible for listing on the National Register of Historic Places; (5) facilities that may affect Indian religious  sites; (6) facilities that are to be located in a flood plain; (7) facilities whose construction will involve significant change in surface features; and (8) antenna towers or structures equipped with high intensity white lights that are to be located in residential neighborhoods, as defined by applicable zoning law.  47 C.F.R. § 1.1307(a).  Under Section 1.1307(b), a Commission action granting a construction permit, license to transmit (including a renewal of a license to transmit), equipment authorization, or modification in existing facilities requires preparation of an EA if the proposed facility, operation, or transmitter would cause human exposure to radiofrequency radiation in excess of the limits specified in 47 C.F.R. §§ 1.1310 and 2.1093.  47 C.F.R. § 1.1307(b).  

[39] 47 C.F.R. § 1.1308.  See also 47 C.F.R. § 1.1312 (requiring Commission applicants and licensees to perform environmental review of proposed actions requiring no other preconstruction Commission authorization).

[40] We note, however, that licensees and applicants must consider effects on migratory birds that are listed or proposed as endangered or threatened species under the ESA.  47 C.F.R. § 1.1307(a)(3).  In American Bird Conservancy, the court vacated the Commission’s refusal to 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.  516 F.3d at 1034-35.  As discussed below, we are addressing this holding through a conservation review by FWS. 

[41] 47 C.F.R. § 1.1306(a).  Thus, most antenna structure registrations are categorically excluded from environmental processing.  Out of  2,527 tower registrations granted in 2010 for newly constructed towers, 69 were filed with EAs on Form 854.  This may somewhat understate the total number of EAs because some EAs were filed with the associated service-specific application.

[42] See 47 C.F.R. §§ 1.1307(c), 1.1307(d); In the Matter of Public Employees for Environmental Responsibility, Order, 16 FCC Rcd 21438, 21441 ¶ 3 (2001).  These provisions satisfy Section 1508.4 of CEQ’s rules, 40 C.F.R. § 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.”

[43] See 47 C.F.R. § 1.1307(a).

[44] E.g., In the Matter of County of Leelanau, Michigan, Memorandum Opinion and Order, 9 FCC Rcd 6901, 6903 ¶ 8 & n.11 (1994) (Leelanau); Caloosa Television Corp., Memorandum Opinion and Order, 3 FCC Rcd 3656, 3658 ¶11 (1988), recon. denied, 4 FCC Rcd 4762 (1989); In the Matter of T-Mobile and the Pierce Archery Proposed Antenna Tower,  Memorandum Opinion and Order, 18 FCC Rcd 24993, 24997 ¶ 13 (WTB Spectrum & Comp. Policy Div. 2003); Letter from Linda Blair, Mass Media Bur., FCC, to Tanja L. Kozicky, 11 FCC Rcd 4163, 4166 (MMB Aud. Serv. Div. 1996); In re Application of Baltimore County, Maryland, Memorandum Opinion and Order,  4 FCC Rcd 5068, 5071 ¶¶ 23-25 (1989), review denied, 5 FCC Rcd 5615 (1990).

[45] See Leelanau, 9 FCC Rcd at 6905 ¶ 17.

[46] 47 U.S.C. § 303(q).

[47] 47 C.F.R. §17.4(a).  The FAA’s notification requirements are contained in 14 C.F.R. §§ 77.13-17, reprinted in FAA Form 7460-1, “Notice of Proposed Construction or Alteration.”

[48] 14 C.F.R. § 77.13; 47 C.F.R. §17.7.

[49] The applicant provides the FAA with the structure height and location by filing a Notice of Proposed Construction or Alteration (FAA Form 7460-1).  See also 14 C.F.R. § 77.17 (FAA regulation governing form and time of notice). The FAA sends an acknowledgement to the antenna structure owner that constitutes a determination of no hazard to air navigation, meaning that the structure will pose no hazard to aircraft if the structure is marked and/or lighted consistent with the FAA’s recommendations.  14 C.F.R. § 77.19.  The antenna structure registration (FCC Form 854R) ultimately issued by the Commission will typically incorporate the FAA’s lighting and/or marking recommendations, meaning that the antenna structure owner must ensure that the registered antenna structure complies with the lighting/marking specified in the registration.

[50] Antenna Structure Clearance R&O, 11 FCC Rcd at 4289 ¶ 41.  Accord, In the Matter of Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, Report and Order, 20 FCC Rcd 1073, 1084 ¶ 27 (2004), aff’d sub nom. CTIA-Wireless Ass’n v. FCC, 466 F.3d 105 (D.C. Cir. 2006).

[51] 47 C.F.R. § 17.4(b) (providing that the FAA’s determination of no hazard must not have expired by the time the ASR application is received by the Commission).

[52] We will refer to this question as “Question 38,” but we note that it may not necessarily have the same number in the revised form that will be promulgated to implement today’s rule changes.

[53] FCC Form 854, Question 38 (“Would a Commission authorization for this location be an action, which may have a significant environmental effect?  See 47 C.F.R. § 1.1307.  If ‘Yes,’ submit an environmental assessment as required by 47 C.F.R. Sections 1.1308 and 1.1311.”).

[54] 47 C.F.R. § 17.4(c).

[55] 47 C.F.R. §§ 25.115, 25.151.

[56] Under the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, 47 C.F.R. Pt. 1, App. 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.”

[57] 47 C.F.R. § 1.1306 (Note 1) (requiring environmental processing only with respect to potentially significant effects on historic preservation, Native American sites, and human exposure to levels of radiofrequency radiation in excess of prescribed limits).  Additionally, most collocations are excluded from historic preservation review under Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f.  See Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, 47 C.F.R. Pt. 1, App. B.

[58] See 47 C.F.R. §§ 1.1307(c)-(d).

[59] Forest Conservation Council, American Bird Conservancy, and Friends of the Earth, Petition for National Environmental Policy Act Compliance, submitted August 26, 2002 (Gulf Petition).  The petition also raised several other issues as to which petitioners did not seek judicial review of the Commission’s decision, which are not discussed herein.

[60] In the Matter of 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 (2006) (Gulf Memorandum Opinion and Order).

[61] Id. at 4468 ¶ 18.

[62] Id. at 4465-66 ¶¶ 9-11 (citing the lack of specific evidence concerning the impact of towers on the human environment or of a scientific consensus regarding the impact of towers on migratory birds).

[63] Id. at 4467 ¶ 14 (noting petitioners’ failure to support generalized assertions of cumulative effects with concrete evidence).

[64] Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712.

[65] American Bird Conservancy, 516 F.3d at 1033 (citing 47 C.F.R. §1.1307(c)).

[66] Id. at 1034.

[67] Id. at 1034-35.

[68] Id. at 1035.

[69] 47 C.F.R. § 1.1307(c).

[70] American Bird Conservancy, 516 F.3d at 1035. 

[71] Id. at 1035.

[72] In the Matter of Effects of Communications Towers on Migratory Birds, Notice of Inquiry, WT Docket No. 03-187, 18 FCC Rcd 16938, 16938 ¶ 1 (2003) (Migratory Birds NOI).

[73] 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).

[74] Wireless Telecommunications Bureau Seeks Comment on Avatar Environmental, LLC, Report Regarding Migratory Bird Collisions with Communications Towers, Public Notice, WT Docket No. 03-187, Public Notice, 19 FCC Rcd 24007 (WTB 2004).  See also Wireless Telecommunications Bureau Extends Period for Comment on Avatar Environmental, LLC, Report Regarding Migratory Bird Collisions with Communications Towers, WT Docket No. 03-187, Public Notice, 19 FCC Rcd 24778 (WTB 2004).

[75] In the Matter of Effects of Communications Towers on Migratory Birds, Notice of Proposed Rule Making, WT Docket No. 03-187, 21 FCC Rcd 13241 (2006) (Migratory Birds NPRM).

[76] Id. at 13256-60 ¶¶ 32-37.

[77] Id. at 13258 ¶ 33.  See also In the Matter of Amendment of Environmental Rules in Response to New Regulations Issued by the Council on Environmental Quality, Report and Order, FCC 85-626, 60 Rad. Reg. 2d (P& F) 13, 16 (1986) (“The primary purpose of this [NEPA] process is to ensure that agencies consider and balance with other public interest factors the environmental effects of the proposals before them.”); In the Matter of Amendment of Environmental Rules, Gen. Docket No. 88-387, First Report and Order, 5 FCC Rcd 2942, 2943 (1990) (“any delay in construction that results from requiring an applicant to undergo environmental processing prior to construction, rather than at the licensing stage, is more than offset by the public interest benefits of ensuring, in compliance with Federal environmental statutes, that no potentially irreversible harm to the environment occurs.”).

[78] Migratory Birds NPRM, 21 FCC Rcd at 13260-62 ¶¶ 38-42.

[79] Id. at 13268-69 ¶¶ 62-64.

[80] There were 94 major comments and 11 major reply comments from large and small licensees; tower construction companies; public safety organizations; federal, state, and local governments; environmental protection groups; and individuals.  In addition, the Commission received more than 2,300 brief comments and reply comments from concerned citizens.  The major commenters and the short forms by which they are cited are listed in Appendix B.  Brief comments are not listed but are considered in this Order. 

[81] See infra, Section III.B.

[82] On May 6, 2008, the Wireless Telecommunications Bureau (WTB) released a public notice seeking comment on the Infrastructure Coalition Petition.  Wireless Telecommunications Bureau Seeks Comment on Petition for Expedited Rulemaking of CTIA-The Wireless Association et al., for Amendment of Parts 1 and 17 of the Commission’s Rules Regarding Public Notice Procedures For Processing Antenna Structure Registration, Public Notice, WT Docket No. 08-61, 23 FCC Rcd 7440 (WTB 2008). 

[83] Infrastructure Coalition Petition at 7.

[84] 47 C.F.R. § 1.939.

[85] Infrastructure Coalition Petition at 2, 10, 12-13.

[86] The commenters and the short forms by which they are cited are listed in Appendix A.

[87] For example, Crown Castle proposes additional and alternative processes, including a different process for providing public notice.  Infrastructure Coalition Petition Comments of Crown Castle at 5.

[88] See, e.g., Infrastructure Coalition Petition Comments of NTCA at 6; Infrastructure Coalition Petition Comments of  USCC at 2; Infrastructure Coalition Petition Comments of Sprint Nextel at 3; Infrastructure Coalition Petition Comments of Verizon Wireless at 5.

[89] Infrastructure Coalition Petition Comments of Conservation Groups at 3.

[90] On April 29, 2009, the WTB released a public notice seeking comment on the Conservation Groups Petition.  Wireless Telecommunications Bureau Seeks Comment on Petition for Expedited Rulemaking and Other Relief Filed On Behalf of American Bird Conservancy, Defenders of Wildlife and National Audubon Society Regarding Commission Implementation of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, Public Notice, WT Docket No. 08-61, 24 FCC Rcd 4881 (WTB 2009).

[91] The commenters and short forms by which they are cited are listed in Appendix A.

[92] Conservation Groups Petition Comments of New Jersey Audubon Society et al. at 3.  Other conservation organizations also filed in support of the American Bird Conservancy Petition.

[93] See, e.g. Conservation Groups Petition Comments of ASRI at 4; Conservation Groups Petition Comments of FWCC at 3-5; Conservation Groups Petition Comments of Verizon Wireless at 10-12; Conservation Groups Petition Comments of Maranatha at 2.

[94] Conservation Groups Reply Comments at 2-5.

[95] American Bird Conservancy, 516 F.3d at 1033.  See supra, para. 23.

[96] 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.

[97] See Federal Communications Commission Announces Public Meetings and Invites Comment on the Environmental Effects of its Antenna Structure Registration Program, Public Notice, WT Docket Nos. 08-61, 03-187, 25 FCC Rcd. 15953 (WTB 2010).

[98] 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, 26 FCC Rcd 13841 (WTB 2011).  See also id. at Attachment, Draft Programmatic Environmental Assessment of the Antenna Structure Registration Program (Aug. 26, 2011) (Draft Programmatic EA).

[99] The court noted that we could commence our NEPA analysis through preparation of an EA.  American Bird Conservancy, 516 F.3d at 1034.  Commencing with a programmatic EA instead of a programmatic EIS is appropriate because our rules call for the preparation of an EIS for actions that are “deemed to have a significant effect upon the quality of the human environment.”  47 C.F.R. § 1.1305; see also 40 C.F.R. § 1501.3.  Conflicting scientific evidence has been presented to us in the Migratory Birds proceeding regarding the environmental impact of communications towers on migratory birds.  In these circumstances, we have yet to reach a definitive conclusion as to whether communications towers in fact have a “significant effect.” 

[100] American Bird Conservancy, 516 F.3d at 1034 (citing Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) (emphasis in original)).

[101] See 47 C.F.R. § 1.1308(d).   

[102] Such incorporation of ESA considerations into the NEPA process is permitted under applicable laws.  Section 7(c) of the Endangered Species Act provides that the Biological Assessment required to identify any endangered or threatened species likely to be affected by a proposed action “may be undertaken as part of a Federal agency’s compliance with the requirements of Section 102 of the National Environmental Policy Act of 1969.”  16 U.S.C. § 1536(c); see also 50 C.F.R. § 402.06 (Coordination with other environmental reviews).  CEQ’s implementing regulations also encourage the incorporation into the NEPA process of other environmental reviews and consultation requirements.  40 C.F.R. §§ 1500.2(c), 1500.4(k), 1500.5(g).

[103] 47 C.F.R. § 1.1307(a)(3); see also 47 C.F.R. § 1.1308(b) Note (stating that the Commission will solicit and consider the comments of the Department of the Interior with respect to actions specified under Section 1.1307(a)(3)).  Formal consultation with FWS is required if the action agency determines that a proposed action may affect protected species/habitats unless, as a result of preparing a biological assessment or through informal consultation, the action agency determines, and FWS concurs, that the proposed action is not likely to adversely affect any endangered or threatened species or their habitats.  50 C.F.R. §§ 402.13, 402.14. 

[104] American Bird Conservancy, 516 F.3d at 1035.  Regulations governing interagency coordination do not delineate the circumstances in which a Federal agency must initiate “programmatic” formal Section 7 consultation beyond the general requirement to consider the effects of an action as a whole.  50 C.F.R. § 402.14(c)(6).

[105] 16 U.S.C. § 1536(a)(1).  See Letter from Richard E. Sayers, Chief, Division of Consultation, HCPs, Recovery and State Grants, United States Department of the Interior, Fish and Wildlife Service to Aaron Goldschmidt, Assistant Division Chief, Spectrum and Competition Policy Division, Wireless Telecommunications Division, FCC, dated May 3, 2011; Letter from Aaron Goldschmidt, Assistant Division Chief, Spectrum and Competition Policy Division, Wireless Telecommunications Division, FCC to Richard E. Sayers, Chief, Division of Consultation, HCPs, Recovery and State Grants, United States Department of the Interior, Fish and Wildlife Service, dated June 1, 2011.

[106] 40 C.F.R. § 1507.3(a).

[107] 40 C.F.R § 1506.6(a) (agencies shall “[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures”); 40 C.F.R § 1507.3(a) (“Each agency shall consult with [CEQ] while developing its procedures and before publishing them in the Federal Register for comment. … The procedures shall be adopted only after an opportunity for public review and after review by [CEQ] for conformity with [NEPA] and [CEQ’s] regulations.”).

[108] 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, 26 FCC Rcd. 4099 (WTB 2011) (Draft Rules Public Notice).

[109] A list of these commenters and short form references is attached hereto as Appendix C.  DOI filed its comments on May 12, 2011, after the formal comment deadline.  We accept the late-filed comments of DOI in the interest of a full record and so that we may benefit from the expertise of DOI.  In addition, after the formal comment deadline, on May 6, 2011, Defenders of Wildlife submitted over 34,000 informal comments in support of the draft rules.

[110] The Infrastructure Coalition and Conservation Groups filed a Joint Opposition to the Petition for Reconsideration, and Blooston Commenters filed a Reply. 

[111] See 47 C.F.R. § 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 C.F.R. §§ 1.412(a)(1), 1.415(c).  Blooston Commenters Reply at 3-4.  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. 

[112] See infra, paras. 45-46.

[113] The process is described in more detail in Appendix E.  In addition, before the environmental notification process becomes operational, the Wireless Telecommunications Bureau will issue a Public Notice providing further details about this process.

[114] The revisions to FCC Form 854 to incorporate the environmental notification process are subject to approval by the Office of Management and Budget (OMB).  The Wireless Telecommunications Bureau will issue a Public Notice announcing OMB’s approval and the effective date of the process. 

[115] 16 U.S.C. § 470f.

[116] See 47 C.F.R. Part 1, App. C, § V (specifying local notice requirements for review under the NHPA).  Appendix E describes conditions that must be met to ensure that a single publication satisfies the notice requirements of our rules under both NEPA and the NHPA.

[117] We recognize 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.

[118] Applications for which no environmental assessment is required are categorically excluded from environmental processing.  See 47 C.F.R. § 1.1306(a) (“Except as provided in § 1.1307(c) and (d), Commission actions not covered by § 1.1307(a) and (b) are deemed individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.”); 47 C.F.R. § 1.1307 (a), (b) (identifying actions that may have an environmental effect for which Environmental Assessments must be prepared); 47 C.F.R. § 1.1307(c), (d) (specifying procedure for requiring an EA for particular actions otherwise categorically excluded).   

[119] American Bird Conservancy, 516 F.3d at 1035 (quoting City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656, 664 (D.C. Cir. 1984)).

[120] 5 U.S.C. § 553(b)(A) (providing an exception for “rules of agency ... procedure” to the requirement that federal agencies prior to the adoption of a rule must provide the public with notice and the opportunity to comment).  Although the Wireless Telecommunications Bureau issued a Public Notice in this proceeding to invite comment on draft rules and interim procedures, and that Public Notice was published in the Federal Register, 76 Fed. Reg. 18679 (April 5, 2011), it was issued pursuant to CEQ’s rules, see supra, para. 38, and was not required under the APA.      

[121] The RFA requirement to prepare a Regulatory Flexibility Analysis applies only to rules for which notice and comment rulemaking is required under Section 553(b) of the APA.  5 U.S.C. § 604(a) (“When an agency promulgates a final rule under section 553 of this title, after being required by that section or any other law to publish a general notice of proposed rulemaking, … the agency shall prepare a final regulatory flexibility analysis.”).

[122] JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980)).  See also James V. Hurson Associates, Inc. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000).  Accord Chamber of Commerce of United States v. United States Dep’t of Labor, 174 F.3d 206, 211 (D.C. Cir. 1999).

[123] Public Citizen v. Dep’t of State, 276 F.3d 634, 640 (D.C. Cir. 2002) (quoting Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1987)).

[124] James V. Hurson Associates, Inc. v. Glickman, 229 F.3d at 281 (quoting National Whistleblower Center v. Nuclear Regulatory Comm’n, 208 F.3d 256, 262 (D.C. Cir. 2000), cert. denied, 531 U.S. 1070 (2001)).

[125] JEM Broadcasting Co. v. FCC, 22 F.3d at 327 (emphasis in original).

[126] Chamber of Commerce of U.S. v. U.S. Dep’t of Labor, 174 F.3d at 211 (quoting Am. Hosp. Ass’n v. Bowen, 834 F.2d at 1047).

[127] Public Citizen v. Dep’t of State, 276 F.3d at 640 (quoting Am. Hosp. Ass’n v. Bowen, 834 F.2d at 1047).

[128] 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.

[129] Blooston Commenters Petition at 3-5; Draft Rules Public Notice Comments of NTCA at 4-6.

[130] For similar reasons, we reject 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.  47 C.F.R. §§ 1.412(a)(1), 1.415(c); see Blooston Commenters Petition at 6-8.  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.”  47 C.F.R. § 1.412(b)(5).  As discussed above, 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.

[131] See supra, para. 38.  

[132] American Bird Conservancy, 516 F.3d at 1031; see Gulf Memorandum and Opinion Order, 21 FCC Rcd at 4468 ¶ 18 (noting that petitioners sought, with respect to notice, “notice and opportunity to comment on all antenna structure registration applications the FCC is contemplating in the Gulf Coast region, regardless of whether the FCC believes these decisions are categorically excluded from NEPA review”).

[133] No party has suggested that applicability of the notification process should be limited to the Gulf Coast region.  The Infrastructure Coalition proposed amending the Commission’s rules for all ASR applications, and made no distinction between towers within and outside the Gulf Coast region.  See, e.g., Infrastructure Coalition Petition at 1.

[134] See, e.g., Draft Rules Public Notice Comments of Southern at 8-9 (exempt towers less than 200 feet in height AGL); Draft Rules Public Notice Comments of NextG at 2-3, 8-9 (exempt unlit towers); Draft Rules Public Notice Comments of Verizon Wireless at 2, 4-5 (exempt unlit towers less than 200 feet in height AGL); Draft Rules Public Notice Comments of NTCH at 7 (exempt voluntary registrations).

[135] See American Bird Conservancy, 516 F.3d at 1035.

[136] For similar reasons, we also decline to adopt exemptions for facilities used in connection with distributed antenna system (DAS) networks that otherwise require registration, see Draft Rules Public Notice Comments of NextG at 2-3, 6-8, or for state-owned towers under 450 feet in height AGL that are used for public safety purposes, see Draft Rules Public Notice Comments of Virginia State Police at 2-3.  While Virginia State Police suggests security concerns about identifying the specific locations of such towers, we note 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 C.F.R. Pt. 1, App. C, §§ V.B., V.C.  No commenter expresses concern about those existing disclosures.

[137] See MOU, §§ I.A.2, II.A.3, II.B.3.

[138] 47 C.F.R. Pt. 1, App. C, § III.B.

[139] See MOU, § I.A.1.

[140] We note that changes in longitude or latitude of less than one second do not require a new aeronautical study with an FAA determination.  See In the Matter of Streamlining the Commission’s Antenna Structure Clearance Procedure, Report and Order, WT Docket No. 95-5, 11 FCC Rcd 4272, 4287, ¶ 35 (1995).  Consequently, we consider a replacement tower located less than one second longitude and latitude from an existing tower to be at the same location.

[141] A substantial increase in size occurs under the NPA if:  (1) the mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed these size limits if necessary to avoid interference with existing antennas; or (2) the mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or (3) the mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed these size limits if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable.  NPA, § III.B; see Nationwide Agreement for the Collocation of Wireless Antennas, 47 C.F.R. Pt. 1, App. B, § I.C.

[142] MOU, § I.A.4 and Attachment 1.

[143] See Draft Rules Public Notice Comments of DOI at 3 and evidence cited therein; Comments of Division of Migratory Bird Management, U.S. Fish and Wildlife Service, submitted in WT Docket Nos. 08-61 & 03-187, January 14, 2011, at 7-8.  Therefore, we decline to base decisions regarding environmental processing on whether red or white lights are used.  See Draft Rules Public Notice Comments of Blooston Commenters at 5, 10-12.  There is insufficient evidence in the record that the color of lighting is a critical factor in determining avian mortality.

[144] See Draft Rules Public Notice Comments of Conservation Groups at 2.

[145] See Draft Rules Public Notice Comments of DOI at 3.

[146] See Draft Rules Public Notice Comments of Conservation Groups at 2 (asking that final rule acknowledge that the FAA may revise its lighting styles and noting the need for a revision of the ranking order if new FAA standards are implemented).

[147] See Draft Rules Public Notice Comments of DOI at 3, 7-8.  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.

[148] FAA Lighting Styles include several lighting configurations that use white flashing lights without red steady lights as well as several configurations that include red steady and flashing lights.  Any FAA Lighting Style that does not use red steady lights falls within the second tier (i.e., less preferred than no lights), and any FAA Lighting Style that uses red steady lights falls within the third, least preferred tier. 

[149] 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.  See MOU, § I(A)(4) and Attachment 1.  Furthermore, use of high intensity white lights in a residentially zoned neighborhood requires an EA under our existing rules.  47 C.F.R. § 1.1307(a)(8).

[150] See 40 C.F.R. § 1508.16 (lead agency) and 40 C.F.R. § 1508.5 (cooperating agency).

[151] 47 C.F.R. § 1.1311(e).

[152] We decline to adopt an exemption from notice requirements for towers that have already been reviewed by FWS, as requested by Verizon Wireless in its Draft Rules Public Notice Comments at 2, 7.  The Commission’s environmental notification process and environmental processing are not limited to concerns that would be addressed by FWS.  

[153] See supra, para. 18.

[154] 47 C.F.R. § 1.1313(a). 

[155] See 47 C.F.R. § 1.1313(b).  See also In the Matter of Application of American Tower Corporation for Tower Registration With Environmental Assessment, Memorandum Opinion and Order, 21 FCC Rcd 1680, 1685 ¶ 14 (WTB Spectrum & Comp. Policy Div. 2006) (dismissing improperly filed petitions to deny but addressing the merits of environmental objections); In the Matter of County of Albemarle Informal Objections Against Application for Wireless Radio Station Authorization (FCC Form 601) With Environmental Assessment, Memorandum Opinion and Order, 18 FCC Rcd 10647, 10651 ¶ 14 (WTB Comm. Wireless Div. 2003) (same); In the Matter of Application of AT&T Wireless PCS Inc., Memorandum Opinion and Order, 14 FCC Rcd 9489, 9494-95 ¶ 8 & n.37 (WTB Enf. & Cons. Info. Div. 1999) (treating environmental objections that do not conform to the procedures for petitions to deny as informal objections).  

[156] 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.

[157] This certification will be required when the environmental notification process is complete and the applicant files its completed FCC Form 854.

[158] 40 C.F.R. § 1501.2(d)(3) (“Federal agencies shall … provide for cases where actions are planned by private applicants … so that [t]he Federal agency commences its NEPA process at the earliest possible time.”).

[159] The Commission “enjoys wide discretion in fashioning its own procedures.”  Global Crossing Telecommunications, Inc. v. FCC, 259 F.3d 740, 748 (D.C. Cir. 2001) (quoting City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656, 664 (D.C.Cir.1984)). See 47 U.S.C. §§ 154(i), 154(j); FCC v. Schreiber, 381 U.S. 279, 289 (1965).  See also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 524-25 (1978).  We act within that broad discretion in applying uniform environmental notification procedures to our processing of all ASR applications as a means of fulfilling our responsibility to make “diligent efforts to involve the public” in our implementation of NEPA.  40 C.F.R. § 1506.6(a).

[160]  To avoid any confusion, for an initial period of six months, we 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 website.

[161] See, e.g. Infrastructure Coalition Petition Comments of Conservation Groups at 3; Infrastructure Coalition Petition at 6-10; Infrastructure Coalition Petition Comments of Verizon Wireless at 3; Infrastructure Coalition Petition Comments of Sprint Nextel at 3; Infrastructure Coalition Petition Comments of APCO at 4.  See also Draft Rules Public Notice Comments of Virginia State Police at 5; Draft Rules Public Notice Comments of Blooston Commenters at iii, 6-7; Draft Rules Public Notice Comments of NTCH at 3; Draft Rules Public Notice Comments of Southern at 4-5.

[162] See Infrastructure Coalition Petition Comments of Crown Castle at 10.

[163] See American Bird Conservancy, 516 F.3d at 1035.

[164] 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 that application.  A variety of factors, including the environmental concern in question, will factor into that analysis.  See, e.g., 47 C.F.R. § 1.939(a) (requiring status as a “party in interest” in order to file a petition to deny an application in the Wireless Radio Services); In the Matter of Wahpeton School District, Order on Reconsideration, 25 FCC Rcd 5806, 5808 ¶ 8 (WTB Broadband Div. 2010) (To establish party in interest standing, a petitioner must allege facts sufficient to demonstrate that grant of the subject application would cause it to suffer a direct injury.  In addition, a petitioner must demonstrate a causal link between the claimed injury and the challenged action.).

[165] Southern suggests 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 website so that interested parties can review the information available on the FAA website and file any petitions based on that information.  Draft Rules Public Notice Comments of Southern at 5.  We decline to adopt this suggestion.  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.

[166] See 47 C.F.R. Pt. 1, App. C, §§ V.B, V.C; 47 C.F.R. §§ 73.3580(b), (f).  The details of the local notice requirement are described infra, in Appendix E.

[167] 42 U.S.C. § 4331(b) (providing that it is the continuing responsibility of the Federal Government to use all means practicable to facilitate national environmental policy); 42 U.S.C. § 4332(2)(B) (directing all Federal agencies to “identify and develop methods and procedures ... which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations”).

[168] 40 C.F.R. § 1506.6(b).

[169] Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026-01 (Mar. 23, 1981) at Question 38.  Although CEQ’s guidance does not identify notifications of proposed categorically excluded actions as “environmental documents,” id., it does include EAs, and we conclude 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.

[170] By requesting the applicant to specify the date for national notice, we allow applicants to coordinate the local and national notice periods as closely as possible, while also assuring that the public has at least 30 days from the date of local notice to file any Requests for further environmental processing.  While we expect to post notices on the Commission’s website 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 website to file any Requests. 

[171] See 47 C.F.R. § 1.1307(c) (“If an interested person alleges that a particular action, otherwise categorically excluded, will have a significant environmental effect, the person shall submit to the Bureau responsible for processing that action a written petition setting forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision-making process.”).

[172] The time period will be computed according to the general rule prescribed in Section 1.4(c) of the Commission’s rules, 47 C.F.R. § 1.4(c). 

[173] Although the 30-day period for commenting on ASR applications with EAs attached is not codified in our rules, it is included in the notice that is published in the Daily Digest.  See, e.g., http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db0910/DOC-301379A1.pdf (“Objections to the application(s) based on environmental considerations may be filed no later than 30 days from the date of this Public Notice.”).  By comparison, the 30-day period for commenting on license applications is specified in the rules.  See 47 C.F.R. § 1.939(a).

[174] See Infrastructure Coalition Petition at 8; see also Draft Rules Public Notice Comments of Infrastructure Coalition at i, 8-9 (15 days after date of national notice); Draft Rules Public Notice Comments of Verizon Wireless at 5 (15 days after date of national notice ); Draft Rules Public Notice Comments of NTCH at 4-5 (20 days after date of national notice).

[175] See Infrastructure Coalition Petition Comments of Conservation Groups at 18-19.

[176] Id. at 18.

[177] 47 C.F.R. § 1.1307(c).

[178] Id.

[179] 47 C.F.R. § 1.1313(a).

[180] See 47 C.F.R. § 1.939(d).

[181] 47 C.F.R. § 1.1313(b).

[182] Infrastructure Coalition Petition at 12-13.

[183] See Infrastructure Coalition Petition Comments of Sprint Nextel at 4; Infrastructure Coalition Petition Comments of APCO at 2.  See also Draft Rules Public Notice Comments of Infrastructure Coalition at i, 10; Draft Rules Public Notice Comments of NTCH at 5-6.

[184] Infrastructure Coalition Petition Comments of Conservation Groups at 21-22.

[185] 47 U.S.C. § 309(b); 47 C.F.R. § 1.1313(a).

[186] See supra, para. 58, and infra, Appendix E.

[187] We recognize that interested persons voicing environmental concerns regarding a non-ASR application for a license or construction permit will be subject to stricter pleading standards than apply to those concerned about the environmental effects of a proposed tower for which an ASR application will be filed.  Our experience is that a majority of proposed towers with potentially significant environmental effects are subject to registration under Part 17.

[188] 40 C.F.R. § 1500.2(d).

[189] For similar reasons, we decline to require a settlement meeting among the parties after the filing of a Request.  See Draft Rules Public Notice Comments of NTCH at 6.  Requiring such a meeting may impose an unreasonable burden on the party filing the Request.  The parties are free to agree to such meetings.

[190] See 47 C.F.R. § 1.1313(b).

[191] 47 C.F.R. § 1.1307(c).

[192] For example, a Wireless Radio Service facility that may have a significant environmental effect and is over 200 feet in height would both constitute a major license modification under 47 C.F.R. § 1.939(a)(4) and require registration under Part 17.

[193] FCC Form 601, Application for Wireless Telecommunications Bureau Radio Service Authorization, available at http://www.fcc.gov/Forms/Form601/601.html.

[194] See FCC Form 301, Application for Construction Permit for a Commercial Broadcast Station; FCC Form 318, Application for Construction Permit for a Low Power FM Broadcast Station; FCC Form 340, Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station; FCC Form 346, Application for Authority to Construct or Make Changes in a Low Power TV, TV Translator or TV Booster Station; FCC Form 349, Application for Authority to Construct or Make changes in a FM Translator, or FM Booster Station, available at http://www.fcc.gov/formpage.html.

[195] See FCC Form 312, Application for Satellite Space and Earth Station Authorizations, available at http://www.fcc.gov/formpage.html.

[196]  See Infrastructure Coalition Petition Comments of Conservation Groups at 16-17.

[197] See Infrastructure Coalition Petition at 8 n. 32.

[198] An applicant that does not make an ASR filing should continue to attach any required EA to the appropriate licensing form.

[199] See Infrastructure Coalition Petition Comments of LMCC at 3-5.

[200] See Draft Rules Public Notice Comments of Verizon Wireless at 9.

[201] American Bird Conservancy, 516 F.3d at 1033 (citing Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1091-92 (D.C. Cir. 1973)).

[202] As we have begun the programmatic analysis with an EA rather than an EIS, the Commission is not subject to Section 1506.1 of CEQ’s rules.  40 C.F.R. § 1506.1 (Limitations on actions during the NEPA Process).  Section 1506.1(c)(2) provides that “[w]hile work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not undertake in the interim any major Federal action which may significantly affect the quality of the human environment unless such action: … (2) [i]s itself accompanied by an adequate environmental impact statement.” 

[203] 47 C.F.R. § 1.1307(d).

[204] See supra, paras. 53-54.  An EA will not be required for replacement towers that do not involve a substantial increase in size, changes to a more preferred or equally preferred lighting style under the rankings adopted herein, administrative filings, and other minor ASR submissions that are not required to complete the pre-ASR filing environmental notification process, regardless of tower height.  See supra, paras. 53-54.

[205] 47 C.F.R. § 1.1307(a), (b).

[206] 47 C.F.R. § 1.1307(d).  Sections 4(i) and 4(j) of the Act provide additional authority for the adoption of the interim processing guidelines set forth in this Section.  Section 4(i) of the Communications Act authorizes the Commission to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent [with the express provisions of the Act], as may be necessary in the execution of its functions.”  47 U.S.C. § 154(i).    See New England Tel. & Tel. Co. v. FCC, 826 F.2d 1101, 1108 (D.C. Cir. 1987) (the “wide-ranging source of authority” in Section 4(i) empowers the Commission to take “appropriate and reasonable” actions in furtherance of its regulatory responsibilities.).  See also City of New York v. FCC, 486 U.S. 57, 66 (1988); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700 (1984).  Additionally, Section 4(j) of the Communications Act gives the Commission authority to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.”  47 U.S.C. § 154(j). 

[207] American Bird Conservancy, 516 F.3d at 1033-34.

[208] 47 C.F.R. § 1.1307(c).

[209] See Draft Programmatic EA, Figure 12:  Mean Annual Bird Mortality and Tower Heights (<600 feet).

[210] Joelle Gehring, Paul Kerlinger, and Albert M. Manville II, The Role of Tower Height and Guy Wires on Avian Collissions with Communications Towers, 75 The Journal of Wildlife Management 848 (2011).

[211] Id. at 851.

[212] 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 (compiling existing studies that collectively show avian mortality generally to increase as tower height increases, with a greater rate of increase at taller heights).

[213] See, e.g., Letter from Patrick Howey, Executive Director, National Association of Tower Erectors to Austin Schlick, General Counsel, FCC, dated May 6, 2010 (“[T]he Industry Coalition has consistently and forcefully maintained that there is insufficient research to warrant either mitigation steps or punitive action, despite assertions by the U.S. Fish and Wildlife and certain avian interests to the contrary.  We continue to hold that view.  … Absent appropriate and necessary research, it will be difficult to convince our members to accept additional voluntary steps.”)

[214] The Commission has wide discretion to draw rational lines in implementing its statutory mandates.  See Providence Yakima Medical Center v. Sebelius, 611 F.3d 1181, 1190 (9th Cir. 2010) (“Where [an] agency's line-drawing does not appear irrational and the party challenging the agency action has not shown that the consequences of the line-drawing are in any respect dire, courts will leave that line-drawing to the agency's discretion.”) (internal quotations omitted); Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281, 291 (4th Cir. 2004) (same); Covad Communications Co. v. FCC, 450 F.3d 528, 541 (D.C. Cir. 2006) (quoting AT & T Corp. v. FCC, 220 F.3d 607, 627 (D.C. Cir. 2000) (“[T]he Commission has “wide discretion to determine where to draw administrative lines”));

[215] The Commission has in the past attached significance to proposals jointly presented by divergent interest groups when making public interest judgments on controversial issues.  See Cable Television Report and Order, 36 FCC 2d 143, 165-68 (1972).

[216] MOU, §§ II.A.1, II.B.1.

[217] MOU, §§ I.A.4., II.A.2-3, II.B.2-3.

[218] See Black Citizens for a Fair Media v. FCC, 719 F.2d 407, 414 (D.C. Cir. 1983) (recognizing the importance of public silence as supporting a public interest finding in the context of upholding streamlined license renewal procedures).

[219] In addition to the comments listed here, the Commission received more than 2,300 brief comments and reply comments from concerned citizens.  Brief comments are not listed but are considered in this Order.

[220] Section III.A.1 of the Order, supra, discusses which actions are subject to the notification process.

[221] See 47 C.F.R. Pt. 1, App. C, § V (Nationwide Programmatic Agreement).

[222] See amended rule section 17.4(c)(1)(C).