The Federal Communications Commission is moving forward with changes to its antenna structure registration (ASR) program that will significantly affect entities planning to construct new communications towers or make modifications to existing towers.  In some cases, it is likely that the revised procedures will delay the implementation of future projects by requiring time-consuming and costly environmental assessments.  

By way of background, the Commission’s new procedures are the result of a successful challenge to the Commission’s policy of evaluating the impact of proposed communications towers on migratory birds.  Several environmental groups had requested that the Commission prepare an environmental impact statement to determine the effect of past, current and future tower construction projects would have on migratory birds in the Gulf Coast.  The Commission denied the request, concluding that there was not sufficient evidence that communications towers had an impact on migratory birds.  The DC Court of Appeals remanded the proceeding to the agency, indicating that the Commission should have considered procedures to require tower registrants to conduct an environmental assessment for proposed constructions that may have a significant environmental impact.  The Court also directed the Commission to establish procedures to permit the public to comment on new or modified tower proposals before the Commission grants requests.

To that end, the Commission recently announced its revised procedures to provide the public with the opportunity to review and provide comments on proposed communications towers or modifications to existing towers.  The revised ASR procedures will affect proposed construction and modifications of existing towers that may have a significant environmental effect. Moreover, the Commission will require the preparation and submission of an environmental assessment for all proposed towers over 450 feet in height until the Commission completes its pending programmatic environmental analysis of the ASR program.

The first step for a would-be registrant is to submit a partially-completed ASR application form (FCC Form 854), which will specify the information currently requested, along with information regarding the type of tower structure and the anticipated lighting.  The form will also request that the registrant supply a date by which the form will be published on the Commission’s website.  This date must be on or after the date that the registrant supplies local public notice of the proposed construction.  The public notice can be placed in the local newspaper, or the registrant can use the local zoning requirements, if any, for public notice in order to effectuate this requirement.

The publication of the registration form on the Commission’s website will trigger a 30-day window, during which members of the public will be permitted to submit a request that the agency require additional environmental review of the proposed construction.  The registrant will then have an opportunity to submit a response to the request for further review, and the party filing the request will have an opportunity to reply.

In the event that the Commission agrees with the party filing the request, the registrant will be requested to prepare an environmental assessment.  If the Commission does not agree that further study is required, or if no comments were filed and the registrant has demonstrated that an environmental assessment is not required, then the registrant can update its application after the 30-day window and certify that the proposed construction will not have a significant environmental impact and processing can continue from that point forward.  

Since many of the proposed tower constructions and modifications relate to servicespecific licensees, such as broadcasters and wireless service providers, the Commission also outlined the necessary coordination between the submission of the ASR form and the service-specific applications:  

• For wireless applicants filing a FCC Form 601 application for a new facility or modifications to an existing license, the Commission will require the applicant to file the initial ASR form prior to filing the FCC Form 601, but will permit the applicant to file the FCC Form 601 prior to obtaining final clearance for the proposed construction.  The Commission will not require the submission of the environmental assessment, if necessary, with the FCC Form 601.  
• For earth station applicants, the Commission will require the completion of the environmental notification process before the applicant can file its application (FCC Form 312 or 312EZ).  If an environmental assessment was required, and the Commission issued a finding of no significant impact, then the earth station applicant can rely on this finding when certifying compliance with the Commission’s environmental processing requirements.
• Finally, with respect to broadcast applicants, the Commission will permit the submission of a construction permit application without an ASR number, as it does now, but the application will not be granted until the environmental review is completed.  If the applicant has commenced the ASR process, but has not yet received final approval, the applicant may not certify compliance on the construction permit.  The applicant must answer “no”, and provide an explanation that the processing remains pending at that time.  The Commission will require the submission of the Environmental Assessment, when necessary, with both the ASR form and the construction permit application.  

The Commission’s staff has informally indicated that that the new rules likely will become effective in early June, and the new ASR system will become operational shortly thereafter.  Thus, taking these new requirements into account, parties seeking to construct communication towers will be required to plan ahead before commencing a new project.  

While the Commission’s new rules allow for temporary authority on an emergency basis, any entity seeking to build a new tower or to make significant changes to an existing tower, must incorporate additional time into its construction schedule to take into account the new notification process.  Further, it is possible, given the pending nationwide programmatic review, that the Commission will adopt more onerous requirements in the future should it conclude that communications towers do have a significant impact on migratory birds.  In light of the extensive overhaul of the ASR system, entities may be well advised to submit any proposed construction applications or modifications expeditiously before the revised ASR system becomes operational.