United States: Recent Developments In Communications Tower Regulation

Those Who Fail to Study History When Building Towers May Be Required to Repeat It

Anyone planning to construct a new communications tower or install antennas on another structure should remember to comply with the U.S. Federal Communications Commission’s (FCC) requirements for studying the effect of the structure on historic properties that may be in the vicinity. In October 2006, the FCC initiated the first ever enforcement action against licensees that constructed antenna facilities prior to completing the new historic preservation review process, even though those facilities did not adversely impact historic properties.

The Nationwide Programmatic Agreement for Review of Effects on Historic Properties (NPA) was approved by the FCC, the Advisory Council on Historic Preservation and the National Conference of State Historical Preservation Officers, and is intended to streamline the review of proposed communications facilities under section 106 of the National Historic Preservation Act. The NPA applies to any applicant proposing to construct a new communications tower, modify an existing tower or collocate an antenna on an existing tower, regardless of whether it is associated with a site-based or geographic license.

These NPA procedures have generated significant concern and confusion among license applicants because they require applicants to give much closer scrutiny to proposed antenna sites than in the past. Instead of merely assuming there are no historic properties in the area, applicants now must take affirmative steps, using appropriate archaeological or environmental experts, to confirm that the construction will not have an adverse visual or physical effect on historic properties, including effects on sites that might be significant to Native Americans. Applicants should allow at least 60 to 90 days in advance of construction to comply with the notification and consultation process required by the NPA.

Failure to adhere to these procedures exposes an FCC licensee to sanctions, including monetary forfeitures or even, in extreme circumstances, an order to dismantle the tower and/or license revocation.

FAA Proposes to Duplicate FCC Efforts in Reviewing Frequency Use

In June 2006, the U.S. Federal Aviation Administration (FAA) proposed new rules governing its review of antenna structures that may affect navigable airspace. In seeking to protect communications and navigation equipment used in air travel, the FAA is also proposing to take on a role that has historically been the exclusive province of the FCC.

The proposed rules would greatly expand the FAA’s jurisdiction over communications towers to include review of electromagnetic interference. Applicants would have to file a notice with the FAA for (1) any new or modified antenna structure that will support antennas used in certain frequency bands, including a number of land mobile, microwave and multiple address system frequencies, or (2) any modifications to a system operating on those frequencies, including the addition of new frequencies, increases in effective radiated power (ERP) equal to or greater than three decibels, and certain antenna modifications. Applicants would have to notify the FAA of frequency use or changes even if the antenna structure is under 200 feet, not located near a public-use airport or under the FAA’s slope requirement.

The proposed rules would greatly increase the number of structures that require notice to the FAA. In addition, the proposed rules would potentially increase the number of structures that are determined to be hazards and likely cause delays in securing FAA approval for tower constructions or modifications. At a minimum, the proposed rules would extend the lead time for towers that require a notice of proposed construction to the FAA. Significantly, even the FCC filed comments with the FAA cautioning against the number of notifications the FAA would have to review under its proposal. The docket remains pending at the FAA, and it is unclear when it will take final action.

FCC Hopes to Steer Birds Away from Communications Towers

In November 2006, the FCC proposed new regulatory requirements to reduce the number of migratory bird collisions with communications towers.

The migratory bird issue has gained momentum at the FCC over the past few years. Since the late 1990s, the FCC has been slow to respond to requests by the U.S. Fish and Wildlife Service and various conservation groups for additional tower regulations. However, due to significant pressure from FCC Commissioners Copps and Adelstein, the FCC now appears to be poised to take action on this issue.

This proceeding could have a significantly adverse impact on tower owners. The FCC requested comment on new rules that could impose new pre- and post-construction obligations on tower owners. For example, the FCC could require tower owners to convert from traditional tower lighting systems to medium-intensity white strobe lighting, even though white strobe lights are prohibited in some communities. The FCC also could restrict or prohibit the siting of towers in certain locations, such as on ridgelines, near wetlands or in migratory bird corridors. Furthermore, the FCC could limit the height of towers, adopt collocation requirements, require the preparation of remote sensor tests or impose a post-construction monitoring requirement. The FCC also could adopt new environmental processing requirements, which could delay the deployment of a tower for months or even years.

Although representatives of the communications industry and the conservation groups have attempted to narrow their differences on these issues, the parties appear unlikely to reach a full compromise. This proceeding remains pending at the FCC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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