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FCC’s New Rules Regarding Migratory Birds

Turkey Vultures in Pittsburg, California find this CrownCastle tower very pleasant, indeed!Turkey Vultures in Pittsburg, California

The FCC has recently released new rules requiring public notice and and opportunity to comment on new Antenna Structure Registration (“ASR”) applications. These new rules, released on December 9th, 2011 are explained by the Commission in the following three paragraphs:

1. In this Order, we take procedural measures to ensure, consistent with the Commission’s obligations under federal environmental statutes, that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction.  We institute a pre-application notification process so that members of the public will have a meaningful opportunity to comment on the environmental effects of proposed antenna structures that require registration with the Commission.  As an interim measure pending completion of a programmatic environmental analysis and subsequent rulemaking proceeding, we also require that an Environmental Assessment (EA) be prepared for any proposed tower over 450 feet in height.  Through these actions and our related ongoing initiatives, we endeavor to minimize the impact of communications towers on migratory birds while preserving the ability of communications providers rapidly to offer innovative and valuable services to the public.

2. Our actions today respond to the decision of the Court of Appeals for the District of Columbia Circuit in American Bird Conservancy v. FCC. 1 In American Bird Conservancy, the court held that our current antenna structure registration (ASR) procedures impermissibly fail to offer members of the public a meaningful opportunity to request an EA for proposed towers that the Commission considers categorically excluded from review under the National Environmental Policy Act (NEPA).  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,6 we require, as an interim measure, that an EA be prepared for any proposed tower over 450 feet in height.  We expect to take final action in the Migratory Birds proceeding following completion of the programmatic EA and, if necessary, any subsequent programmatic Environmental Impact Statement (EIS).

As a practical matter, the process required by the FCC is one that occurs only at the federal level.  If someone wants to install a tower that requires an ASR, then their application will go on public record at the Commission with time for interested members of the public to provide their comments.

Please click on the following link to download the FCC’s order (PDF format): FCC-11-181A1-20111209

 

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