Before the
Federal Communications Commission
Washington, D.C. 20554
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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
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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
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. 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). 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. 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).
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. 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, 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. 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.
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. 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. …” In preparing the EIS, the action agency must consult with any other federal agency with jurisdiction or expertise over any environmental impact involved.
7. Section 204 of NEPA created the Council on Environmental Quality (CEQ) and entrusted it with oversight responsibility regarding the NEPA activities of federal agencies. To implement Section 102(2) of NEPA, CEQ promulgated regulations, 40 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.” 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.” 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. Such regulations must follow the requirements specified in CEQ regulations.
8. CEQ’s regulations direct agencies to identify their major federal actions as falling into one of three categories. The first such category encompasses those actions that normally have a significant environmental impact. These actions always require an EIS. 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. An EA is briefer than an EIS, and its purpose is to determine whether an EIS is required. 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), 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.” CEQ regulations require that an agency that chooses to establish categorical exclusions must also provide for “extraordinary circumstances” under which a normally excluded action may have a significant effect. CEQ regulations also state that an agency may decide, in its procedures or otherwise, to prepare EAs for specific reasons even when not required to do so. Thus, although categorically excluded actions presumptively are exempt from environmental review, agency decisions or “extraordinary circumstances” may require their review in the form of the preparation of EAs or EISs.
10. One of NEPA’s central goals is to facilitate public involvement in agency decisions that may affect the environment. Section 1506.6 of CEQ’s regulations governs public involvement in federal agencies’ implementation of NEPA. Section 1506.6(a) provides generally that agencies shall “make diligent efforts to involve the public in preparing and implementing their NEPA procedures.” Section 1506.6(b) specifically directs agencies to provide “public notice of … the availability of environmental documents” to parties who may be interested in or affected by a proposed action. Environmental documents include EAs, EISs, FONSIs, and Notices of Intent (NOIs). For actions “with effects primarily of local concern,” Section 1506.6(b)(3) suggests nine ways of providing local public notice, while Section 1506.6(b)(2) discusses methods of providing notice for actions “with effects of national concern.” In a memorandum to agencies, the CEQ has explained that “[a] combination of methods may be used to give notice, and the methods used should be tailored to the needs of particular cases.”
11. The NEPA Rules. CEQ has approved the Commission’s rules implementing NEPA, 47 C.F.R. §§ 1.1301-1.1319. These rules apply to the processing of antenna structure registration applications, which the Commission has deemed to constitute a major federal action. 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; (2) require preparation of an EA for any proposed action that may have a significant environmental effect; and (3) categorically exclude from environmental processing proposed actions deemed individually and cumulatively to have no significant environmental effect.
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. 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. The rules currently do not identify facilities that may affect migratory birds as requiring preparation of an EA.
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).” 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. Thus, even though a potentially significant effect on migratory birds is not one of the categories of proposed actions identified in Section 1.1307(a) of the rules as requiring an EA, the Commission has on several occasions considered the impact of particular proposed construction projects on migratory birds, and in appropriate circumstances has required modifications to protect them.
14. NEPA Review for Towers Subject to ASR. Section 303(q) of the 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. 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. 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. Before the antenna structure is registered with the FCC, the tower owner must obtain a No Hazard to Air Traffic Determination (No Hazard Determination) from the FAA. The Commission has determined that the process of FAA clearance and FCC registration effectively constitutes a pre-construction approval process within the Commission’s Section 303(q) authority and is therefore subject to the provisions of NEPA and other federal environmental statutes.
15. To register an antenna structure, the antenna structure owner must submit to the Commission a valid ASR application (FCC Form 854, Application for Antenna Registration), along with the No Hazard Determination from the FAA. Because the 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 whether the proposed antenna structure may have a significant environmental effect, as defined by Sections 1.1307(a) and (b) of the rules, for which an EA must be prepared. The Commission will not process an ASR application if Question 38 is not answered. A “no” answer signifies that none of the circumstances delineated in Sections 1.1307(a) and (b) of the Commission’s rules apply to the proposed tower and that an EA is not required to be submitted with the application. In that event, the ASR system verifies against the FAA’s database the accuracy of the lighting and marking specifications provided by the applicant. The ASR system then issues an antenna structure registration (Form 854R) without the Commission 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. 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.
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. Because collocations are unlikely to have environmental effects, with limited exceptions they are not subject to environmental processing, except upon a determination by the processing Bureau under Section 1.1307(c) or (d), based on its examination of a petition submitted by an interested person or its own motion, that the proposed collocation may significantly affect the environment. 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.
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.
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. Of relevance here, the Commission declined to implement new public notice procedures, declined to commence a programmatic EIS, and denied the request to initiate formal Section 7 consultation on the cumulative effects that towers in the Gulf Coast region have on endangered and threatened species. The Commission also deferred to the ongoing Migratory Birds proceeding petitioners’ request that it take action under the Migratory Bird Treaty Act (MBTA) to reduce intentional and unintentional takes of migratory birds.
22. The American Bird Conservancy Decision. In American Bird Conservancy, the court affirmed the Commission’s deferral of the MBTA issues already under consideration in the ongoing nationwide Migratory Birds proceeding. However, it vacated the NEPA and ESA portions of the Gulf Memorandum Opinion and Order as well as the Commission’s decision not to implement new public notice procedures.
23. First, the court rejected the Commission’s dismissal of petitioners’ request for an EIS. The court held that neither the lack of specific evidence concerning the impact of towers on the environment, nor the lack of consensus among scientists regarding the impact of communications towers on migratory birds, was sufficient to render a NEPA analysis unnecessary. Rather, because the court found there is no real dispute that towers may have a significant environmental impact, it directed that the Commission address petitioners’ request for a programmatic EIS based on a less stringent threshold for NEPA analysis. Although petitioners had requested an EIS, the court stated that the Commission could initially prepare an EA in order to determine whether an EIS is required.
24. Second, the court vacated the Commission’s refusal to engage in programmatic consultation with FWS under the ESA. The court remanded the issue, holding that the Commission had failed to describe what kind of showing, short of petitioners conducting an EIS themselves, could demonstrate sufficient environmental effects to justify the programmatic consultation sought by petitioners.
25. Third, the court ordered the Commission on remand to determine how it will provide notice of pending tower registration applications that will ensure meaningful public involvement in implementing NEPA procedures. The court noted that while the Commission’s rules permit interested persons to seek environmental review of a particular action otherwise categorically excluded from environmental processing, its process confers “a hollow opportunity to participate in NEPA procedures” because “the Commission provides public notice of individual tower applications only after approving them … [and] [i]nterested persons cannot request an EA for actions … already completed.” The court noted the “suggest[ion] during oral argument that a simple solution would be for the Commission to update its website when it receives individual tower applications.”
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.” 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), on which the Wireless Telecommunications Bureau sought comment.
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. In particular, the Commission sought comment on scientific and technical issues relevant to the environmental effects of communications towers on migratory birds, on its authority and responsibility to adopt regulations specifically for the protection of migratory birds, and on what scientifically supported measures it could take to reduce any such impacts. It tentatively concluded that its obligation, under NEPA, to identify and to take into account the environmental effects of actions that it undertakes may provide a basis for the Commission to make the requisite public interest determination under the Communications Act to support regulations specifically for the protection of migratory birds. The Commission also tentatively concluded that, for communications towers subject to 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. Finally, it specifically sought comment on whether to amend Section 1.1307(a) to routinely require environmental processing with respect to migratory birds and, if so, whether such revisions should apply to all new tower construction or only to antenna structures having certain physical characteristics deemed most problematic in terms of potential environmental impacts on migratory birds.
28. The Commission received more than 2400 comments and reply comments in response to the Migratory Birds NPRM. In this Order, 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.
29. Petitions for Expedited Rulemaking. On May 2, 2008, CTIA – The Wireless Association, the National Association of Broadcasters, the National Association of Tower Erectors, and PCIA – The Wireless Infrastructure Association (the Infrastructure Coalition) filed the Infrastructure Coalition Petition. The Infrastructure Coalition Petition asks the Commission to respond to the remand in American Bird Conservancy by initiating a rulemaking to institute a notice, comment, and approval process for ASR applications modeled after the process for applications for assignments and transfers of authorizations. According to the Infrastructure Coalition, the assignment and transfer process rules were designed to minimize delays and reduce transaction costs, and these goals apply to processing ASR applications. Further, the Infrastructure Coalition Petition asks the Commission to apply Section 1.939 of the Commission’s rules, which establishes criteria for filing a petition to deny, to objections to proposed ASR structures in order to prevent frivolous objections.
30. Ten parties filed comments on the Infrastructure Coalition Petition. Comments from communications providers and tower companies generally support the Infrastructure Coalition Petition, with some differences as to certain details. These commenters assert that the Infrastructure Coalition’s proposed rules reasonably balance the goals of rapid deployment of wireless infrastructure and public involvement, in compliance with the court’s decision. Commenters representing environmental protection groups, however, reject the rules and procedures proposed by the Infrastructure Coalition as not ensuring meaningful public involvement, and they ask for the cessation of registration of all antenna structures until the Commission complies with NEPA.
31. On April 14, 2009, American Bird Conservancy, Defenders of Wildlife, and National Audubon Society (Conservation Groups) filed the Conservation Groups Petition. The Conservation Groups Petition asks the Commission to adopt new rules on an expedited basis to comply with NEPA, the MBTA, and the court’s mandate in American Bird Conservancy. It asks the Commission to: amend the NEPA regulations to ensure that only Commission actions that have no significant environmental effects individually or cumulatively are categorically excluded; prepare a 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. 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. Opponents of the Conservation Groups Petition argue that communications towers do not have a significant environmental impact on migratory birds, and they challenge the validity of the estimates and evidence submitted in the Conservation Groups Petition. On reply, the Conservation Groups cite additional studies that they state establish a link between bird deaths and towers.
33. Memorandum Of Understanding. On May 4, 2010, the Infrastructure Coalition and the Conservation Groups filed a Memorandum of Understanding (MOU) setting forth their joint proposal as to how the Commission could best fulfill its environmental responsibilities under NEPA with respect to towers during the interim period while it considers permanent rule changes to implement the court’s decision in American Bird Conservancy. Under this joint proposal, ASR applications for new towers taller than 450 feet above ground level (AGL) would require an EA for avian effects and a public notice and an opportunity to comment. New towers of a height of 351 to 450 feet AGL or ASR applications involving a change of lighting system from a more preferred to a less preferred FAA Lighting Style would not initially require an EA based on avian concerns, but would be placed on public notice, and the Commission would determine, after reviewing the application and any comments filed in response to the public notice, whether to require an EA. Under the MOU, no EA would be required for ASR applications for new towers with a height of 350 feet AGL or less, replacement towers, minor applications, and lighting system changes from a less preferred to a more preferred FAA Lighting Style. The parties to the MOU are divided as to whether public notice should be required for these applications.
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. In compliance with the court’s decision, Commission staff in September 2010 began work on a nationwide programmatic environmental assessment, which will provide a comprehensive analysis upon which to base our consideration of the environmental effects of future proposed towers. On August 26, 2011, the Wireless Telecommunications Bureau released and sought comments on a draft programmatic EA.
35. The programmatic EA will provide the basis for the agency to determine whether an EIS is warranted. The Commission will commence the preparation of a programmatic EIS if the programmatic EA demonstrates that “any ‘significant’ environmental impacts might result from the proposed agency action. …” Otherwise, the Commission will make a Finding of no Significant Impact and will terminate the programmatic environmental review. 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. 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. However, the court in American Bird Conservancy additionally required the Commission to address what environmental showing would require formal programmatic consultation with FWS over the cumulative effects of registered towers. FWS recommended, and WTB agreed, to proceed by means of a conservation review under Section 7(a)(1). Through this conservation review, FWS will evaluate the degree to which the ASR Program contributes to furthering the purposes of the ESA, and make possible recommendations to improve or enhance this contribution. The conservation review will also identify any subsequent formal consultation under Section 7(a)(2) that may be required for tower sites, either individually or in appropriate groupings. The conservation review will focus on procedures instituted at a programmatic level to promote the conservation of listed species and to avoid or minimize any adverse effects of the ASR program to these species or their habitats.
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. 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. In compliance with these rules, the Wireless Telecommunications Bureau issued a Public Notice inviting comment on the draft rules and interim procedures. Thirteen formal comments were received in response to the Draft Rules Public Notice. In addition, Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP, on behalf of its affected clients, submitted a Petition for Reconsideration of the Draft Rules Public Notice (Blooston Commenters Petition). We dismiss the Blooston Commenters Petition because the Draft Rules Public Notice is not a final action subject to reconsideration. Nevertheless, we treat the Blooston Commenters Petition as comments on the Draft Rules Public Notice and address its arguments below.
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.
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, each prospective applicant for a new tower that requires antenna structure registration, or for a modification of a registered tower that is substantial enough to potentially have a significant environmental impact, must initially submit into the ASR system a partially completed FCC Form 854 that includes information about the proposed antenna structure but is not yet complete for filing. This will consist substantially of information that is already required on Form 854, augmented to include the type of tower structure and the anticipated lighting. The applicant must also provide local notice of its proposed tower through publication in a 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) through a single publication.
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. If no EA is required based on the partially completed Form 854 and any Requests, and if the applicant has determined that no EA is otherwise required under Section 1.1307(a) or (b), it may then update and file Form 854 certifying that the tower will have no significant environmental impact. At this point, if all other required information has been provided, the Form 854 will be deemed complete and can be processed accordingly.
44. 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. 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. 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). “[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.’” In other words, whether or not a rule has a “‘substantial impact,’” it qualifies for the procedural exception where, as here, it does not “‘purport to regulate or limit [parties’] substantive rights.’” 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.”
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” or “encode[] a substantive value judgment.” 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. 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, 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.
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. 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.
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, 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.
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. 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. 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. 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. 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), or construction or excavation more than 30 feet beyond the existing tower property. 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, not involving a change in lighting, so long as it does not involve a substantial increase in size under Section III.B of the NPA or construction or excavation more than 30 feet beyond the tower property. 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. 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. 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. Furthermore, the FAA may soon consider changes to Advisory Circular AC 70/7460 that would permit use of red flashing or blinking lights without steady-burning L-810s. In these circumstances, pending completion of 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. The environmental notification process will not be required where the lighting is changed to a lighting style that is more preferred or within the same tier of this ranking system, but will be required where the lighting is changed to a less preferred lighting style.
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. Consistent with these regulations, Section 1.1311(e) of the Commission’s rules provides that an EA need not be submitted to the Commission if another federal agency has assumed responsibility for determining whether the facility will have a significant environmental effect and, if it will, for invoking the EIS process. For example, if a proposed facility that requires registration in the ASR system is to be located on federal land, the landholding agency ordinarily functions as the lead agency and the Commission does not perform an environmental review except as necessary to ensure that the EA prepared by the lead agency satisfies the Commission’s responsibility. 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. 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. 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). We will also continue to entertain informal objections to such construction based on environmental considerations pursuant to Section 1.1313(b).
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. 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. 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. 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. 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. 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.
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, while other industry commenters have suggested that we adopt local notice. Their reasons in favor of one approach or another are discussed here, but in effect those reasons support using both forms of notice.
61. National notice provided online at the Commission’s website was an approach suggested by the court. 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. 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.
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.
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. 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.” 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.” 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. Interested parties will have an opportunity to respond to these notices by filing Requests for further environmental review with the Commission.
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. 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. 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. We reject the Infrastructure Coalition’s proposal to set the period to object at 14 days, 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. 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.” 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.” 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.” In addition, Section 1.1307(c) cross-references Section 1.1313 of the rules. Section 1.1313(a) provides that “[i]n the case of an application to which section 309(b) of the Communications Act applies, objections based on environmental considerations shall be filed as petitions to deny.” This means, among other things, that the objection must include “specific allegations of fact sufficient to make a prima facie showing that the petitioner is a party in interest and that a grant of the application would be consistent with the public interest, convenience, and necessity.” 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.
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. Several commenters representing licensees and tower owners support the Infrastructure Coalition’s petition. The Conservation Groups, however, oppose application of the petition to deny standard to these objections, arguing that it would limit the public’s ability to participate in the NEPA process.
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. Here, a Request would not be filed in response to any application, but in response to a notification that precedes an application for antenna structure registration. Even if the tower proponent elects to file an associated license application before completion of the environmental notification process, such application will be filed subject to completion of the environmental notification process so that the tower proponent will not yet have made any affirmative certification as to environmental effect. Thus, the Request for environmental processing in response to the environmental notification falls outside the scope of Section 1.1313(a).
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). 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. 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. 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). A Request for further environmental review, although not subject to the standards applicable to a petition to deny, must be filed within the prescribed 30-day public comment period and must contain a supported statement explaining the basis for the interested person’s belief that the proposed tower may have a significant environmental impact, as required by Section 1.1307(c). These requirements provide safeguards that the environmental concerns raised through the environmental notification process will be legitimate claims that will not needlessly delay the processing of ASR applications.
71. Under the Commission’s rules, some proposed towers are subject to both ASR and service-specific application requirements. 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) 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 and satellite earth station 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. Others contend that it is sufficient to provide a single opportunity, in connection with the ASR process, for the public to comment on the environmental effects of each proposed tower. Consistent with current procedures that generally require only one NEPA review for a single proposed antenna structure, 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. 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. 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.
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.
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.” 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. Specifically, we apply Section 1.1307(d) of the Commission’s rules 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. For all other registered towers, an EA will not be routinely required except as specified in Section 1.1307(a) or (b). 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. In American Bird Conservancy, the court found that the Section 1.1307(c) threshold for requiring EAs had been met for at least some towers in the Gulf Coast region. Accordingly, on 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.
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. Data from the peer-reviewed Michigan Bird Study, for instance, confirm the relevance of tower height in assessing the degree of risk to migratory birds at individual towers. That study suggests that avian collisions occur 68-86 percent less frequently at towers between 380 and 480 feet AGL compared with towers greater than 1,000 feet AGL. Other studies have also recognized tower height as a factor potentially affecting avian collisions. 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, 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. Further, the interim measure is temporary and is consistent with the tower height threshold for requiring an EA proposed in the consensus MOU between industry representatives and environmental groups. In particular, under the MOU, new towers taller than 450 feet AGL would require an EA for avian effects. New towers of a height of 450 feet or less AGL, as well as replacement towers and other ASR filings, would not initially require an EA as a categorical matter. The inclusion in the MOU of a 450-foot threshold for an interim EA filing requirement supports 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.
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.
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).
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.
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)
