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Tuesday, May 23, 2006

Onerous Environmental Requirements for New Broadcast Towers

If you are planning a build of a new broadcast station tower but have never heard of the Nationwide Programmatic Agreement, you are like many broadcasters who are now learning the hard way that the FCC's Media Bureau is strictly imposing its requirements on applications for new and modified broadcast facilities

Effective March 7, 2005, by Public Notice, the Commission announced that it would be applying the provisions of the Nationwide Programmatic Agreement to all broadcast station applications filed, or amended, subsequent to that date.

The Commission, of course, has had, for many years, environmental requirements for broadcast station applications. The broadcast station application form itself asks whether a "Commission grant of [the] application may have a significant environmental impact, thereby requiring an Environmental Assessment (EA)." There are eight criteria which require the submission of an EA. The Nationwide Programmatic Agreement addresses criteria 4 and 5.

The eight environmental criteria are does (or is, as applicable) the tower:

  1. involve high intensity white lighting located in residential neighborhoods
  2. located in an officially designated wilderness area or wildlife preserve
  3. threaten the existence or habitat of endangered species
  4. affect districts, sites, buildings, structures or objects significant in American history, architecture, archaeology, engineering or culture that are listed in the National Register of Historic Places or are eligible for listing
  5. affect Indian religious sites
  6. located in a floodplain
  7. require construction that involved significant changes in surface features (e.g., wetland fill, deforestation or water diversion)
  8. not comply with the FCC established guidelines regarding exposure to RF electromagnetic fields as described in OET Bulletin 65.

An FCC environmental assessment worksheet shows the specific efforts expected of applicants for each of the above categories in the event any of the above apply and an EA must be prepared and submitted to the FCC.

It was the proliferation of cell phone towers, particularly in historically and religiously sensitive areas (Indian burial grounds) that prompted Commission to strictly impose these new requirements. With any new tower or modified tower application, an applicant must now under the Nationwide Programmatic Agreement assess whether the new tower construction is exempt, and if not comply with its numerous provisions. Most new towers are not exempt, particularly if the proposed tower is over 200 feet above ground.

In a nutshell, to comply with criteria 4 and 5 above, the applicant:

  • must notify the local community of its plans
  • must notify specified Native American and Hawaiian America organizations and tribes of its plans
  • must notify local and state historic preservation organizations of its plans
  • must prepare documentation showing that there will be no actual or visual harm to existing or eligible historic sites with some of this showing prepared by a person who has certain "professional qualification standards" including a graduate degree in "Historic Architecture and one full year experience in historic architecture projects," and
  • submit this in a form to the state historic preservation organization for review.

The requirements for Nationwide Programmatic Agreement compliance must be complete prior to an applicant certifying "yes" on the environmental question to its broadcast station application. The FCC's staff has informally advised that a "yes" certification without completing the requirements of the Nationwide Programmatic Agreement, if required, will be regarded as a false certification subjecting the applicant to possible severe sanctions.


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