National Environmental Policy Act Compliance for Proposed Tower Registrations; Effects of Communications Towers on Migratory Birds, 3935-3955 [2012-1535]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 3935-3955]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1535]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 17, 22, 24, 25, 27, 80, 87 and 90

[WT Docket No. 08-61; WT Docket No. 03-187; FCC 11-181]


National Environmental Policy Act Compliance for Proposed Tower 
Registrations; Effects of Communications Towers on Migratory Birds

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC 
or Commission) adopts a rule that affects the process of tower 
construction by instituting 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, the Commission also requires that an 
EA be prepared for any proposed tower over 450 feet in height.

DATES: The rules in this document contain information collection 
requirements that have not been approved by OMB. The Federal 
Communications Commission will publish a document in the Federal 
Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Mania Baghdadi, Wireless 
Telecommunications Bureau, (202) 418-2133, email 
Mania.Baghdadi@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Remand in WT Docket Nos. 08-61 and 03-187, adopted December 6, 2011, 
and released December 9, 2011. The full text of the Order on Remand is 
available for public inspection and copying during business hours in 
the FCC Reference Information Center, Portals II, 445 12th Street SW., 
Room CY-A257, Washington, DC 20554. It also may be purchased from the 
Commission's duplicating contractor at Portals II, 445 12th Street SW., 
Room CY-B402, Washington, DC 20554; the contractor's Web site, https://www.bcpiweb.com or by calling (800) 378-3160, facsimile (202) 488-5563, 
or email FCC@BCPIWEB.com. Copies of the Order on Remand also may be 
obtained via the Commission's Electronic Comment Filing System (ECFS) 
by entering the docket numbers WT Docket No. 08-61 or WT Docket No. 03-
187. Additionally, the complete item is available on the Federal 
Communications Commission's Web site at https://www.fcc.gov.

I. Introduction

    1. In this Order, the Commission takes procedural measures to 
ensure, consistent with its 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. The Commission institutes 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, the 
Commission also requires that an Environmental Assessment (EA) be 
prepared for any proposed tower over 450 feet in height. Through these 
actions and the Commission's related ongoing initiatives, the 
Commission endeavors 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. The Commission's actions in this Order respond to the decision 
of the Court of Appeals for the District of Columbia Circuit in 
American Bird Conservancy v. FCC, 516 F.3d 1027 (DC Cir. 2008) 
(American Bird Conservancy). In American Bird Conservancy, the court 
held that the Commission's 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), 42 U.S.C. 4321 et seq. The 
notification process that the Commission adopts 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), 16 U.S.C. 1531 et seq.
    3. The Commission's action also occurs in the context of its 
ongoing rulemaking proceeding addressing the effects of communications 
towers on migratory birds. In 2006, the Commission sought comment on 
what

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this impact may be and what requirements, if any, the Commission should 
adopt to ameliorate it. Effects of Communications Towers on Migratory 
Birds, WT Docket No. 03-187, Notice of Proposed Rulemaking, 71 FR 67510 
(November 22, 2006) (Migratory Birds NPRM or Migratory Birds 
proceeding). Evidence in the record of that proceeding 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 (MOU) submitted May 4, 2010, by 
representatives of communications providers, tower companies, and 
conservation groups, the Commission requires, as an interim measure, 
that an EA be prepared for any proposed tower over 450 feet in height. 
The Commission expects 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, the Commission takes the following actions in this 
Order:
     The Commission requires that prior to the filing of an 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 Web site. 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 existing tower to a less preferred 
lighting style.
     The Commission modifies its 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.
     The Commission institutes 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. Also pending before the Commission are two Petitions for 
Expedited Rulemaking: one filed May 2, 2008, by CTIA--The Wireless 
Association, National Association of Broadcasters, National Association 
of Tower Erectors, and PCIA--The Wireless Association; and another 
filed April 24, 2009, by American Bird Conservancy, Defenders of 
Wildlife and National Audubon Society. In light of the Commission's 
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 the commencement of 
the programmatic EA, the Commission grants in part and dismisses in 
part these petitions for expedited rulemaking. To the extent that this 
Order adopts a notification process for prospective ASR applications 
and otherwise responds to concerns raised by the court, the Petitions 
are granted in part. Insofar as the Petitions seek relief beyond the 
scope of this Remand Order, they are dismissed without prejudice. 
Either Petition may be refiled to seek relief on any issues that may 
remain relevant following completion of the programmatic NEPA analysis.

II. Background

A. NEPA and CEQ Rules

    6. NEPA requires all Federal agencies, including the FCC, to 
identify and take into account environmental effects when deciding 
whether to authorize or undertake a major Federal action. Although NEPA 
does not impose substantive requirements upon agency decision-making, 
Title I requires Federal agencies to take a ``hard look'' at proposed 
major Federal actions that may have significant environmental 
consequences and to disseminate relevant information to the public. 
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50 
(1989). 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. * * *'' 
42 U.S.C. 4332(2)(C). 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, 42 U.S.C. 4344, 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 CFR 
parts 1500-1508, that ``tell federal agencies what they must do to 
comply with the procedures and achieve the goals of the Act.'' 40 CFR 
1500.1(a). 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.'' 40 CFR 1500.3. 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. 42 U.S.C. 4332(2)(B). 
Such regulations must follow the requirements specified in CEQ 
regulations. 40 CFR 1507.1, 1507.3.
    8. CEQ's regulations direct agencies to identify their major 
Federal actions as falling into one of three categories. 40 CFR 
1507.3(b)(2). The first such category encompasses those actions that 
normally have a significant environmental impact. These actions always 
require an EIS. 42 U.S.C. 4332(2)(C). See also 40 CFR 1508.11. A second 
category of agency actions includes those actions that ordinarily may, 
but do not routinely, have a significant environmental impact. For 
actions in this category, an agency may conduct an EA in lieu of an 
EIS. 47 CFR 1.1307. See also 47 CFR 1.1308(b). An EA is briefer than an 
EIS, and its purpose is to determine whether an EIS is required, 40 CFR 
1508.9. See also 40 CFR 1501.4(b). 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), see 40 CFR 1508.13, 
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.'' See 40 CFR 
1507.3(b)(2)(ii). See also 40 CFR 1508.4. 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,

[[Page 3937]]

agency decisions or ``extraordinary circumstances'' may require their 
review in the form of the preparation of EAs or EISs. 40 CFR 1508.4, 
1507(b)(1).
    10. One of NEPA's central goals is to facilitate public involvement 
in agency decisions that may affect the environment. 40 CFR 1500.1(b), 
1500.2(d). Section 1506.6 of CEQ's regulations governs public 
involvement in federal agencies' implementation of NEPA. 40 CFR 1506.6. 
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). 40 CFR 1508.10. 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.'' Forty Most Asked Questions Concerning CEQ's National 
Environmental Policy Act Regulations, 46 FR 18026 March 23, 1981.

B. The Commission's NEPA Process

    11. The NEPA Rules. CEQ has approved the Commission's rules 
implementing NEPA, 47 CFR 1.1301 through 1.1319. See Petition by Forest 
Conservation Council, American Bird Conservancy and Friends of the 
Earth for National Environmental Policy Act Compliance, Memorandum 
Opinion and Order, 21 FCC Rcd 4462, 4468, para. 18 (2006). These rules 
apply to the processing of antenna structure registration applications, 
which the Commission has deemed to constitute a major Federal action. 
Streamlining the Commission's Antenna Structure Clearance Procedure, 
Report and Order, 61 FR 4359 (February 6, 1996) (Antenna Structure 
Clearance R&O). 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, 47 CFR 1.1305, 1.1314, 1.1315, 1.1317; (2) require 
preparation of an EA for any proposed action that may have a 
significant environmental effect, 47 CFR 1.1307; and (3) categorically 
exclude from environmental processing proposed actions deemed 
individually and cumulatively to have no significant environmental 
effect, 47 CFR 1.1306.
    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. 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. 47 CFR 1.1308. The rules currently do not 
identify facilities that may affect migratory birds as requiring 
preparation of an EA. The Commission notes, however, that licensees and 
applicants must consider effects on migratory birds that are listed or 
proposed as endangered or threatened species under the ESA. See 47 CFR 
1.1307(a)(3).
    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).'' 47 CFR 1.1306(a). Thus, most 
antenna structure registrations are categorically excluded from 
environmental processing. 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. These 
provisions satisfy Section 1508.4 of CEQ's rules, 40 CFR 1508.4, 
requiring that ``[a]ny [categorical exclusion] provisions shall provide 
for extraordinary circumstances in which a normally excluded action may 
have a significant environmental effect.'' 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 
Communications 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. 47 U.S.C. 303(q). To 
implement this provision, Part 17 of the Commission's rules requires 
that, if notification of proposed construction must be provided to the 
Federal Aviation Administration (FAA) under its rules, then such 
proposed antenna structures or modifications to antenna structures must 
also be registered in the Commission's ASR System prior to 
construction. 47 CFR 17.4(a). 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. 14 CFR 77.13; 47 CFR 17.7. 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. Antenna Structure Clearance R&O, 
61 FR 4359 (February 6, 1996).
    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 processing of ASR applications 
is a major Federal action, the tower owner must certify in response to 
current Question 38 on Form 854 (the number may change on the revised 
form) 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

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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. 47 CFR 17.4(c). 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. 47 CFR 25.115, 25.151.
    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. 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. Under the Nationwide Programmatic 
Agreement for the Collocation of Wireless Antennas, 47 CFR part 1, 
appendix B, collocation is defined as ``the mounting or installation of 
an antenna on an existing tower, building or structure for the purpose 
of transmitting and/or receiving radio frequency signals for 
communications purposes.'' 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. 47 CFR 
1.1306 (Note 1); see 47 CFR 1.1307(c)-(d). The procedures adopted in 
this Order will apply only to certain collocations that may have a 
significant effect on migratory birds because they involve a 
substantial increase in size of a registered tower.

C. The Gulf Petition and Litigation

    20. The Gulf Petition. Alleging that the Gulf Coast is critically 
important for migratory birds, Forest Conservation Council, American 
Bird Conservancy, and Friends of the Earth (petitioners) filed in 2002 
a ``Petition for National Environmental Policy Act Compliance'' asking 
the Commission to, inter alia: (1) Implement public participation 
procedures set forth in 40 CFR 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. Forest Conservation Council, American 
Bird Conservancy, and Friends of the Earth, Petition for National 
Environmental Policy Act Compliance, submitted August 26, 2002 (Gulf 
Petition).
    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. Petition by 
Forest Conservation Council, American Bird Conservancy and Friends of 
the Earth for National Environmental Policy Act Compliance, Memorandum 
Opinion and Order, 61 FR 4359 (February 6, 2006) (Gulf Memorandum 
Opinion and Order). 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), 16 
U.S.C. 703-712, 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

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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 Web 
site when it receives individual tower applications.''

D. Migratory Birds Rulemaking Proceeding

    26. Meanwhile, the Commission had a related proceeding ongoing--the 
Migratory Birds rulemaking. On August 20, 2003, the Commission had 
issued the Migratory Birds NOI ``to gather comment and information on 
the impact that communications towers may have on migratory birds.'' 
Effects of Communications Towers on Migratory Birds, Notice of Inquiry, 
WT Docket No. 03-187, 68 FR 53696 (September 12, 2003) (Migratory Birds 
NOI). 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. See Notice of Inquiry Comment Review Avian/
Communication Tower Collisions, Final, Prepared for Federal 
Communications Commission, by Avatar Environmental, LLC, WT Docket No. 
03-187 (filed December 10, 2004) (Avatar Report).
    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. Effects of Communications Towers on 
Migratory Birds, Notice of Proposed Rule Making, WT Docket No. 03-187, 
71 FR 67510 November 22, 2006 (Migratory Birds NPRM). 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 its 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, the 
Commission does not take final action in the Migratory Birds 
rulemaking, but rather defers such action until it is able to consider 
the results of the programmatic EA and any subsequent EIS. The 
Commission does, 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.

E. The Rulemaking Petitions and the Memorandum of Understanding

    29. Petitions for Expedited Rulemaking. On May 2, 2008, CTIA--The 
Wireless Association, the National Association of Broadcasters, the 
National Association of Tower Erectors, and PCIA--The Wireless 
Infrastructure Association (the Infrastructure Coalition) filed the 
Infrastructure Coalition Petition. 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, 47 CFR 1.939, 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

[[Page 3940]]

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. Those conservations 
organizations that filed comments generally support the Conservation 
Groups Petition. 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.

F. The Programmatic Environmental Assessment

    34. 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 the Commission's consideration of the environmental effects of 
future proposed towers. The programmatic EA will cover the entire 
United States, not merely the Gulf Coast, because migratory bird 
pathways are dispersed throughout the continental United States, and 
because similar environmental effects may occur nationwide. On August 
26, 2011, the Wireless Telecommunications Bureau released and sought 
comments on a draft programmatic EA. Wireless Telecommunications Bureau 
Seeks Comment and Announces Public Meeting on its Draft Programmatic 
Environmental Assessment of the Antenna Structure Registration Program, 
Public Notice, WT Docket Nos. 08-61, 03-187, 76 FR 54422 (September 1, 
2011).
    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. * * *'' American Bird Conservancy, 516 F.3d at 
1034. Otherwise, the Commission will make a Finding of no Significant 
Impact and will terminate the programmatic environmental review. See 47 
CFR 1.1308(d). As set forth in the draft programmatic EA, in 
determining whether the programmatic EA supports a FONSI or whether an 
EIS is required, the Commission will consider whether the evidence 
enables it 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, 16 U.S.C. 
1536(a)(1), regarding the effects of registered towers on threatened 
and endangered species and designated or proposed critical habitats. 
The Commission already incorporates and implements in Section 1.1307(a) 
of the Commission's rules its 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 the Wireless Telecommunications Bureau 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.

III. Discussion

    37. Below, the Commission first describes a new notice regime to 
afford members of the public an opportunity to comment on the 
environmental effects of prospective ASR applications. The Commission 
then discusses an interim

[[Page 3941]]

procedural requirement under which an EA will be filed for all proposed 
registered towers over 450 feet in height.
    38. The Commission has consulted with CEQ regarding these rules and 
procedures as required under CEQ's rules. 40 CFR 1507.3(a). 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. 40 CFR 1506.6(a), 1507.3(a). In compliance with these 
rules, the Wireless Telecommunications Bureau issued a Public Notice 
inviting comment on the draft rules and interim procedures. Wireless 
Telecommunications Bureau Invites Comment on Draft Environmental Notice 
Requirements and Interim Procedures Affecting the Antenna Structure 
Registration Program, WT Docket Nos. 08-61, 03-187, Public Notice, 76 
FR 18679 (April 5, 2011) (Draft Rules Public Notice). 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). The Commission dismisses the Blooston Commenters Petition 
because the Draft Rules Public Notice is not a final action subject to 
reconsideration. See 47 CFR 1.106(a)(1). Blooston Commenters argue that 
the Draft Rules Public Notice represents a final decision not to follow 
notice and comment procedures that it says are required under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, and Sections 
1.412(a)(1) and 1.415(c) of the Commission's rules, 47 CFR 1.412(a)(1), 
1.415(c). However, the APA requires these procedures as a precondition 
for adopting certain rules. Since the Draft Rules Public Notice adopted 
no rules, it does not constitute a final action. Nevertheless, the 
Commission treats the Blooston Commenters Petition as comments on the 
Draft Rules Public Notice and addresses its arguments below.
    39. The Commission's 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 the Commission is adopting in this 
Order conform with NEPA and CEQ's regulations.

A. The Environmental Notification Process

    40. In this Order, the Commission adopts public notice rules and 
establishes a pre-ASR filing environmental notification process so that 
members of the public have an avenue for raising environmental 
concerns, and the agency has a mechanism for addressing those concerns, 
before an antenna structure registration application is completed and 
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 the Commission adopts today, described 
in detail below and in a Public Notice that will be issued by the 
Wireless Telecommunications Bureau before the environmental 
notification process becomes operational, 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 
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), 16 U.S.C. 470f, 
through a single publication. See 47 CFR part 1, appendix C, Section V.
    42. After local public notice has been provided, the Commission 
will post the partially completed FCC Form 854 on its ASR Web site 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 the Commission's 
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. The Commission recognizes that cases may arise that involve 
emergency situations, such as where temporary towers need to be built 
quickly to restore lost communications. Such situations often require 
grants of special temporary authority (STAs). In such cases, upon an 
appropriate showing and at the request of the applicant, the processing 
Bureau may waive or postpone this notice requirement. The Bureau shall 
ordinarily require in such cases that notice be provided within a short 
period after authorization or construction, unless the Bureau concludes 
in a particular case that provision of such notice would be 
impracticable or not in the public interest. In appropriate 
circumstances, where a temporary facility constructed in an emergency 
situation will be replaced by a permanent tower, environmental 
notification for the temporary and permanent towers may be combined.
    45. 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 
Commission's 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 Web site, 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

[[Page 3942]]

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.
    46. The Commission takes these actions pursuant to its ``wide 
discretion in fashioning its own procedures'' to implement its 
environmental obligations. American Bird Conservancy, 516 F.3d at 1035. 
Because the Commission is only changing its 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. 5 U.S.C. 553(b)(A). 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). 5 U.S.C. 604(a). ``[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.' '' JEM Broadcasting Co. 
v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). 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.'' Public Citizen v. Dep't. of 
State, 276 F.3d 634, 640 (D.C. Cir. 2002); James V. Hurson Associates, 
Inc. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000). 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.'' JEM 
Broadcasting Co. v. FCC, 22 F.3d at 327.
    47. 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.'' 
Chamber of Commerce of U.S. v. U.S. Dep't of Labor, 174 F.3d 206, 211 
(D.C. Cir. 1999); Public Citizen v. Dep't of State, 276 F.3d at 640. 
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. In the case where an environmental 
notification has an EA attached, the information is substantially the 
same as currently required for EAs filed with ASR applications. 
Although Blooston Commenters and National Telecommunications 
Cooperative Association 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 the Commission adopts 
only enables 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. For similar reasons, the 
Commission rejects Blooston Commenters' argument that notice and 
comment rulemaking, including an opportunity to file reply comments, is 
required under Sections 1.412(a)(1) and 1.415(c) of the Commission's 
rules. Section 1.412(b)(5) of the rules expressly states: ``Rule 
changes (including adoption, amendment, or repeal of a rule or rules) 
relating to the following matters will ordinarily be adopted without 
prior notice: * * * (5) Rules of Commission organization, procedure, or 
practice.'' The rule changes adopted in this Order relate to matters of 
Commission procedure, and the Wireless Telecommunications Bureau sought 
comment on draft rules not due to APA requirements, but to comply with 
Section 1507.3 of CEQ's rules. Therefore, these rule changes are 
outside the scope of Section 1.412(a)(1) as well as Section 1.415.
    48. The Commission also notes 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 the Commission's decisionmaking process. Furthermore, the Commission 
takes the suggestions in the petitions, as well as other filings in 
this proceeding, into account in this Order.
    49. In this Section, the Commission begins by setting out the 
actions subject to the new environmental notification process. Second, 
the Commission discusses the timing of the environmental notification 
process. Third, the Commission explains its decision to require both 
local and national notice. Fourth, the Commission discusses the timing 
and pleading standards governing Requests for further environmental 
review. Fifth, the Commission discusses applications that require a 
service-specific application in addition to FCC Form 854. Finally, the 
Commission discusses the treatment of applications that are pending on 
the effective date of the new environmental notification rules and 
procedures.
1. Actions Subject to Notice
    50. 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. 
The Commission finds no basis to limit the environmental notification 
process adopted herein to the Gulf Coast towers at issue in the court 
case.
    51. 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

[[Page 3943]]

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.
    52. Consistent with this principle, the Commission applies the 
environmental notification process to all ASR applications for new 
towers (except as described in paragraph 57, infra). The Commission 
rejects 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 the Commission recognizes 
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, the Commission 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 the 
Commission's rules. The Commission therefore applies the environmental 
notification requirement to registered towers under 350 feet in height. 
Although the Commission decides that such towers will be placed on 
public notice, the Commission contemplates that a particularly clear 
showing would be required to demonstrate that such towers may have 
effects on migratory birds. For similar reasons, the Commission also 
declines to adopt exemptions for facilities used in connection with 
distributed antenna system (DAS) networks that otherwise require 
registration, or for state-owned towers under 450 feet in height AGL 
that are used for public safety purposes. While Virginia State Police 
suggests security concerns about identifying the specific locations of 
such towers, the Commission notes that the coordinates of these towers 
are public information in the ASR database and that local notice of 
these proposed towers is already required for purposes of NHPA 
compliance under the Nationwide Programmatic Agreement, 47 CFR part 1, 
appendix C, sections V.B., V.C. No commenter expresses concern about 
those existing disclosures.
    53. 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.
    54. 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), 47 CFR part 1, 
appendix C, or construction or excavation more than 30 feet beyond the 
existing tower property. Consistent with this recommendation, as an 
interim measure pending completion of its programmatic environmental 
analysis, the Commission 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. The Commission considers a replacement tower located 
less than one second longitude and latitude from an existing tower 
which does not require a new aeronautical study with an FAA 
determination to be at the same location. Similarly, the Commission 
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.
    55. 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 the Department of Interior Office 
of Environmental Policy and Compliance and FWS based on recent 
scientific literature strongly suggest that L-810 steady-burning lights 
pose the greatest danger of migratory bird mortality and that the 
differences among styles of flashing or blinking lights are not 
statistically significant. Therefore, the Commission declines Blooston 
Commenters' proposal to base decisions regarding environmental 
processing on whether red or white lights are used. There is 
insufficient evidence in the record that the color of lighting is a 
critical factor in determining avian mortality. In addition, 
Conservation Groups recommend that the Commission verify the continuing 
accuracy of the order of tower lighting styles specified in the MOU. 
Furthermore, the FAA m