Court Tells FCC to Explain How It Evaluates Towers’ Impact on Environment
The Court of Appeals for the D.C. Circuit, in a divided decision, ordered the FCC to explain why it failed to fully review the environmental impact of 6,000 Gulf Coast communications towers before granting them licenses. The court said the FCC didn’t apply the proper National Environmental Policy Act (NEPA) standards and didn’t give meaningful notice of pending tower applications. Industry sources said that while the decision raises some red flags for wireless carriers and tower companies, the net effect remains uncertain. Judges Judith Rogers and Merrick Garland agreed in the decision while Judge Brett Kavanaugh dissented.
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“This really goes to the FCC’s processes,” said Michael Altschul, CTIA general counsel. “It’s not changing or overturning any rules. It was sent back for the FCC to develop rules that conform with the environmental laws more closely. The FCC has an open proceeding in which it is going to address many of these issues.” Altschul said the decision by the judges “doesn’t stop anything” and “doesn’t have any immediate consequences.”
Jacqueline McCarthy, director of government affairs at PCIA, said the decision creates some uncertainty for tower companies and carriers. “We are concerned that the court’s order will result in burdensome lighting changes, applied to existing towers, that have unproven effects on pilot conspicuity and safety,” she said. “While we remain committed to cooperating with environmental groups and other infrastructure stakeholders to develop agreed-upon standards for towers going forward, we are opposed to costly retro- fitting measures, especially to the extent that such measures’ effect on avian populations and pilot safety is at issue.”
“The Commission’s regulations mandate at least the completion of an [environmental assessment] before the Commission may refuse to prepare a programmatic” environmental impact statement, Rogers and Garland wrote in the majority opinion. The court told the FCC it must explain its failure to consult with the U.S. Fish and Wildlife Service on the environmental impact of the towers. They also wrote that the “Catch 22” with the FCC’s procedure is that the agency provides notice of individual tower applications only after approving them. The court ordered the FCC to “provide notice of pending tower applications” in a way that will “ensure meaningful public involvement in implementing NEPA procedures.”
Kavanaugh wrote that the court should have dismissed the case as “unripe” because the FCC is re-examining tower environmental issues as part of a rulemaking. “This case is thus closely analogous to a situation in which a petitioner comes to court to challenge an agency order while the agency is still considering a petition for reconsideration,” Kavanaugh said. “We routinely dismiss such cases.”
In taking the FCC to court, the American Bird Conservancy appealed four elements of the FCC’s 2006 order denying a petition by the group to conduct an environmental impact statement on Gulf Coast towers (CD Sept 12 p7). The group challenged the dismissal, the FCC’s deferral to a planned rulemaking on the subject, its refusal to give public notice of all Gulf Coast antenna structure registration applications and the agency’s refusal to consult with the U.S. Fish and Wildlife Service about the region’s threatened and endangered species.