New Tower Rules Mean New Procedures

Jun 1, 2012 1:00 AM, By Lee Petro

In December 2011, the Commission issued an order relating to the registration process for the construction of communication towers. The new rules affect both the construction of new towers, and modifications to existing towers under certain circumstances. On May 9, 2012, the Commission released a public notice detailing the new procedures, and on May 21, 2012, the Commission held a public meeting to highlight the changes to the Antenna Structure Registration (ASR) electronic filing system.

The December 2011 Order was adopted in response to a 2008 Court of Appeals decision determining that the Commission’s current ASR process did not provide the public an opportunity to review proposed constructions/modifications of communications towers that were categorically excluded from review under the National Environmental Policy Act (NEPA). If an ASR applicant claimed that the proposed construction or modification fell under the exemption, it did not need to prepare a costly environmental assessment report to be submitted with its application. In addition to requiring the Commission to conduct an Environmental Impact Study regarding the impact of communications towers on migratory birds, the Court held that the Commission needed to provide the public with an opportunity to comment or request environmental assessments before the Commission approved the proposed construction.

Currently, the Commission is in the process of conducting its assessment of the impact of communications towers on migratory birds. At the same time, the public notice highlighted the implementation of the procedures required by the Court. The new procedures will apply to (1) all new proposed construction projects; (2) modifications to towers that would increase the height of the tower by more than 10 percent or 20′; and (3) certain changes to the lighting of the tower, including changing the lighting configuration and/or lighting a previously unlit tower.

The new procedures require that the proponent submit a partially completed ASR application (FCC Form 854), which will provide all the information previously submitted, along with additional information relating to the proposed lighting of the tower, and the date that that proponent wishes to have the tower registration posted for public comment. The Commission will then post the submission on its website, which will open a 30-day period for the public to request that an environmental assessment be conducted for the proposed construction.

On or before the day that the Commission posts the submission on its website, the proponent must also provide local public notice of the submission. The public notice must include the descriptive information submitted to the Commission, instructions to the public that they can file a request for further environmental study within the 30-day period, the ASR number issued by the Commission for the proposed construction, and instructions on how to provide service of the request to the proponent. The public notice must be published in a local newspaper of general circulation, or by other appropriate means, such as following the local zoning requirements for public notice.

Assuming that the public does not request further environmental study, the Commission will change the status of the application to “Ready for Submission” and permit the proponent to update its application with the FAA Study Number, the date of the local public notice, and the certification that the tower will not have a significant environmental impact.

In the event that a member of the public does submit a request for further study, the Commission will require the requestor to provide specific reasons why the proposed construction will have a significant environmental impact, and, if an environmental assessment was already submitted by the proponent, the requestor must specifically address why the environmental assessment fails to resolve the concerns raised in the request. If the Commission agrees with the requestor, then the proponent will be required to submit an environmental assessment to address these concerns.

During the May 21 demonstration, the Commission’s staff indicated that they expect that the new rules will become effective in early June, and the new ASR system will become operational shortly thereafter. In light of the extensive overhaul of the ASR system, therefore, broadcasters may want to submit any proposed constructions/modifications expeditiously before the ASR system becomes operational.

Dateline

June 16, 2012: Stations in Michigan and Ohio continue running License Renewal Post-Filing Announcements, including July 1, and July 16. Stations in Illinois and Wisconsin continue running License Renewal Pre-Filing Announcements, including July 1, and July 16.

Petro is of counsel at Drinker Biddle & Reath, LLP. Email: [email protected].

June 2012

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