The Federal Communications Commission (FCC) has issued a Final Programmatic Environmental Assessment (PEA) evaluating the environmental impact of its Antenna Structure Registration (ASR) program.
The FCC’s PEA addresses the potential impacts on migratory bird deaths depending on three alternative courses of action. These alternatives includes making no changes to the current ASR program, as well as alternatives that would expand the circumstances under which applicants must submit an Environmental Assessment (EA). The PEA also considers the possibility that the Federal Aviation Administration (FAA) may revise its permitted lighting configurations in a manner that would reduce the impacts of lighting on migratory birds. The PEA concludes that the environmental impact of the ASR program would not be significant at the national level under any of the alternatives, including keeping the program as-is without any changes. The FCC’s Wireless Bureau intends to recommend to the full Commission that it issue a Further Notice of Proposed Rulemaking (FNPRM) that will invite public comment on what actions the FCC should take in light of the analysis in the PEA.
The FCC was under a federal court mandate to evaluate the environmental impacts of its ASR program, which generally requires applicants to register with the FCC all antenna structures that require notice to the FAA, including towers more than 200 feet in height, structures located on the grounds of an airport, and towers between 20-200 feet in height that exceed an imaginary 100:1 slope around an airport runway. The U.S. Court of Appeals for the DC Circuit found that the FCC had not adequately evaluated the potential effects that its current ASR program has on threatened and endangered species and migratory birds.
The FCC’s PEA focuses on the broad, programmatic impacts of the ASR program and whether the FCC’s current processes ensure that potentially significant impacts of individual towers will be identified and considered.
Reduction in Avian Mortality
No Action Alternative
Continue the existing ASR program, including the recently adopted local and national 30-day public notice requirement, under the FAA’s existing permitted lighting configurations.
No significant adverse environmental impacts at the national level to any resources, including migratory birds, although there could be significant impacts to migratory birds, Bald Eagles, or Golden Eagles at the local level that would not be addressed.
Assuming that 2,800 new towers would be constructed annually under the existing ASR program, avian mortality would increase to an estimated 8.6 million birds by 2022, which is 0.07 percent of the overall U.S. bird population.
Continue the existing ASR program, including the recently adopted local and national 30-day public notice requirement, but the FAA would change permitted lighting configurations so that future towers that use red flashing lights would not also have red steady-burning lights.
Same as No Action Alternative.
Compared to the No Action Alternative, avian mortality from new towers would decrease by 50 to 70 percent, based on an estimated 2,800 new towers built annually. Total avian mortality from existing and new towers would be reduced from approximately 8.6 million to approximately 7.2 million to 7.6 million in 2022.
Alternative 2 (Option A)
An EA would be required for all new ASRs located outside of an antenna farm. A new tower in an antenna farm, replacement towers, and modifications of existing towers would require an EA if it would result in a substantial increase in size over existing towers. An EA would also be required for certain lighting changes to existing towers.
No significant adverse environmental impacts at either the national or local level to any resources, including migratory birds.
Compared to Alternative 1, avian mortality would be further reduced to a limited extent because of mitigation measures that would result from the EA process. Because virtually all new proposed ASRs would require an EA, the PEA estimates that the economic impact on applicants would be adverse and moderate, due to increased EA preparation costs and extended project schedules.
Alternative 2 (Option B)
An EA would only be required for a new proposed ASR that would (1) be located in an important eagle use area; or (2) be located along a ridgeline, coastal zone, bird staging area, colonial nesting site, or Western Hemisphere Shorebird Reserve Network (WHSRN) site and would be greater than 450 feet in height, use guy wires, or use a red steady-burning lighting scheme; or (3) would require an EA under the FCC’s current rules. Towers in an antenna farm, replacement towers, and modifications to existing towers would require an EA under the same circumstances as new towers if they involve a substantial increase in size.
Same as No Action Alternative
Avian mortality would be less than under Alternative 1 and comparable to Alternative 2 (Option A).
Alternative 2 (Option C)
An EA would be required for a proposed ASR, or replacement or modification of an existing ASR that involves a substantial increase in size if it (1) would require an EA under the FCC’s current rules; or (2) the tower would be more than 450 feet tall.
Same as No Action Alternative
Avian mortality would be less than under Alternative 1, but greater than under Alternative 2 (Options A or B).
A copy of the FCC’s Public Notice regarding the PEA is available here.
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.