ENVIRONMENTAL GROUPS TAKE AIM AT FCC WIRELESS TOWER SITING RULES

Groups are asking that: (1) Antenna tower registration applications for specific towers be denied based on inadequate documentation of environmental impacts. (2) No future applications be approved until FCC produces environmental impact statement (EIS) that evaluates overall effects of antenna licensing program. Groups said programwide EIS was triggered when individual projects had similar cumulative impacts, which is case for licensing program that has resulted in operation of “hundreds of thousands of towers.” Besides site-specific repercussions, “the licensing program is highly controversial,” groups said in joint petition filed April 24 on 7 antenna applications filed by American Tower, Crown Castle, GeoNet Towers, Southern Bell Wireless. “In almost every state, the [licensing] program has generated extensive public controversy and protest. The program also involves unique and uncertain risks, especially in regards to radiation impacts on humans and wildlife.” Objections and petitions to deny were filed quietly March 26 and April 2, 10, 24. Towers at issue are in W.Va., Md., Fla., N.M., and elsewhere.

FOE and Forest Conservation Council contend in petitions, whose volume and scope took wireless community by surprise, that environmental assessments conducted for those projects didn’t include types and quality of analysis required by National Environmental Policy Act (NEPA), Council of Environmental Quality rules and FCC’s own NEPA rules. Groups contend that documents tower builders draft as part of environmental impact evaluations are too vague on effects on wilderness areas, federally listed species, historic places, lighting and human exposure to RF emissions. Other significant effects that should receive more thorough evaluation, they said, include impact on migratory birds, “scenic and aesthetic impacts” to nearby neighborhoods and “the public health and safety issues raised by increased use of wireless services.” Sites for which they are raising objections include proposed tower in Pecos, N.M., that borders Pecos National Historic Monument. Forest Conservation Council petitioned FCC April 30 to require environmental assessment (EA), which is preliminary evaluation, for registration of SBA Corp.’s project. (SBA since has indicated that it plans to file EA). Another target is American Tower site in Talbot County, Md., which groups say fails to adequately account for extent to which federally threatened bog turtles may inhabit area. Other tower builders with targeted sites include TeleCorp Communications, RL Wireless Communications, Louisiana Unwired, Florida Towers II, Signal Tower Holding.

Each side is accusing other of being too vague in arguments at Commission. In recent weeks, tower companies have responded to petitions with series of detailed counterarguments at FCC, criticizing FOE and Forest Conservation Council documents as overreaching and groups as lacking standing. Responses include thick documents representing environmental analyses conducted by tower planners, including approvals by local zoning boards and FAA.

On petition to deny planned wireless tower in Easton, Md., American Tower said its plans followed federal environmental law and FCC rules. “The procedurally and substantively flawed petition seeks denial of that application without reason,” said company, which has largest tower inventory in U.S. “In this extremely competitive industry, where time to market is crucial to success, the unnecessary delay in the construction of any tower is a cause of great concern.” SBA took similar stance against petition to deny 100-ft. tower that would be concealed within flagpole on proposed grounds of Islamic school in Miami. In filing typical of those filed by tower constructors, SBA asked FCC to “promptly dismiss” petition on grounds that: (1) Environmental groups violated FCC rules on timely service. (2) They don’t have standing to file petition because they weren’t putting “direct, specific injury” to their groups at issue. (3) There was no “justifiable claim” of deficiency of application or its environmental assessment. Petition against this Miami site was withdrawn by environmental groups after SBA filed its response, attorney said.

“The FCC hasn’t dealt with this before,” said Perkins Coie attorney John Clark, who filed responses on behalf of SBA Tower, American Tower, Signal Tower. “We're not sure how the FCC will treat these, what standard they will apply.” While some of contentions raised by groups are detailed, “most of the allegations are general and nonspecific,” he said. Of interest is extent to which series of petitions by groups is raising environmental concerns about individual towers in concerted effort to compel FCC to re-evaluate aspects of its licensing program, Clark and others said.

“The bottom line is that the FCC hasn’t done anything in regards to the significant environmental impact of its licensing program,” said John Talberth, dir.-conservation for Santa Fe-based Forest Conservation Council. “They haven’t initiated any process that we are aware of to consult with the Fish and Wildlife Service” on regular basis over licensing decisions, he said. As “first step,” FCC must provide EIS on overall licensing program that would lead to recommendations, Talberth said.

Stricter environmental reviews for wireless towers came up last year in petition for rulemaking filed by Public Employees for Environmental Responsibility (PEER) (CD May 22/00 p6). PEER, which is composed of govt. employees concerned about environment, had urged FCC to institute more rigorous environmental review of both undersea cables and communications towers. But group had followed strategy that FOE and Forest Conservation Council are taking in recent filings of raising objections to specific sites. Highest profile policy issues in last few months have revolved around agreement crafted by FCC, Advisory Council on Historic Preservation and state officials that eases review procedures for colocating antennas on existing towers under Sec. 106 of National Historic Preservation Act. Petitions by Friend of Earth and Forest Conservation Council since March call on FCC to scrutinize antenna licensing applications more closely under terms of other legislation, including Endangered Species Act and Clean Water Act. Petitions also urge FCC to begin “formal consultation” with U.S. Fish & Wildlife Service and National Marine Fisheries Service on “the adverse effects of its antennae structure licensing program throughout the United States.”

Petitions contend that categorical exclusion criteria that FCC rules lay out are “inadequate.” FCC evaluates through environmental assessment actions that involve facilities that fall under 9 specific categories of possible environmental effect, including when facility is located in wildlife preserves or in flood plains. Sites outside of those areas would be categorically excluded from having to conduct EA. Groups contend that proposed exemptions are written in such way that “vast majority” of antenna structures don’t have to conduct environmental reviews. But one FCC official said rules also include general catch-all provision that requires evaluations of projections that “would have other environmental effects.” Migratory bird protection isn’t specifically covered under categorical exemptions so it appears to be somewhat open question as to whether catch-all provision would cover bird issue.

Because petitions cite individual tower projects, FCC will have to evaluate filings on case-by-case basis, agency official said. On broader issues that petitions raise in tandem, one possible course of action would be for FCC to issue global order that deals with issues that all filings share in common, official said. FCC hasn’t yet made final decision on how broader issues will be addressed, he said. All petitions were filed after FCC released public notice on antenna structure applications that were accepted for filing. Commission indicated in such filings that registration for antenna structures wouldn’t be issued earlier than 31 days after notice so agency could address environmental factors.