POWELL: FCC WILL FOCUS ON TOWER POLICY COORDINATION, ENFORCEMENT

“I don’t want to say that I'm conceding that towers are a problem but only that I know there’s a problem and towers are one of the possible causes,” he said at the news briefing when asked about a disputed link between towers and bird deaths. “We don’t know exactly how they are or why and I think that’s what we have a duty to figure out.” Powell said the FCC was considering hiring a staff biologist to work on bird issues. The Commission plans to consider a proposed rulemaking that would implement a nationwide agreement on streamlining siting decisions for new wireless and broadcast towers. Powell said the agency would produce a draft memorandum of understanding with tribal representatives on best practices for consultation between the FCC and federally recognized tribes on a “government-to-government basis.” The FCC also plans to work with tribes on a database that would help tower builders more easily pinpoint which tribes might have an interest in a particular location.

Federal and state regulators and industry and tribal representatives have been moving toward an agreement to streamline siting decisions under Sec. 106 of the National Historic Preservation Act (NHPA). That provision requires federal agencies to consider the effects of an “undertaking,” including tower construction and expansion, on historic properties. A similar agreement in 2001, which focused only on colocation on existing towers, had been issued as a public notice and the planned NPRM appeared to raise industry concerns that the program agreement for new towers could be drawn out because it would have to be approved in a follow-up order. CTIA said it was concerned “the FCC was delaying implementation of the programmatic agreement on historic preservation and urged the FCC to move ahead with approving the agreement as quickly as possible.” CTIA Pres. Tom Wheeler said: “Government actions that delay or complicate the process of building a more robust network for our consumers are particularly unhelpful.” CTIA lauded the FCC’s plans to improve coordination procedures with tribal groups, which it said eventually could streamline siting.

Powell said there always had been concern about the “tension” between the rapid build-out of wireless tower infrastructure and environmental and historic preservation issues. He said the Commission had long had obligations under the National Environmental Policy Act and the NHPA and the series of planned actions was part of a move toward a more coordinated approach. “It’s long overdue that we take a much more proactive view in dealing with those issues and it’s becoming more acute because of the increased saturation of that infrastructure and the growing concerns associated with them,” he said.

The actions also come as the environmental review aspects of FCC tower siting policies face increased fire from environmental groups. The American Bird Conservancy, the Forest Conservation Council and Friends of the Earth have asked the FCC to prevent new towers from being sited until it completed an environmental impact statement on its tower licensing decisions in the Gulf Coast area. That was the focus of a challenge still pending before the FCC. The groups also have a lawsuit that asks the U.S. Appeals Court, D.C., to direct the Commission to prevent the building of new towers until it completed an environmental impact statement on tower licensing decisions along the Gulf Coast. They also want a halt in new tower approvals until the agency implements requirements for bird protection. The FCC in a filing late Wed. said it hadn’t acted or failed to act in a way that would warrant a writ of mandamus (CD May 1 p6).

In the letter to the Fish & Wildlife Service (FWS), Powell said the continued heavy volume of tower construction was putting “substantial ESA compliance burdens” on the FCC, FWS and tower constructors. “Clearly, while the Commission and FWS must meet their respective obligations under ESA, under current procedures the number of communications tower reviews is not only creating a heavy caseload, but is causing administrative delays and consuming resources at both agencies that may be more effectively directed toward other types of reviews,” he said. Under Sec. 7 of the ESA, the FCC must consult with the service to ensure that tower constructions authorized by the Commission don’t jeopardize the existence of a listed species or harm a critical habitat. Powell suggested a formal agreement by year-end on streamlining measures that involved how the agencies consulted with each other. Among other things, such steps could include standardized submissions packages for review of communications facilities, he said. Powell also suggested improved information sharing between the agencies and a possible information clearinghouse to help educate tower builders.

The Commission has indicated the proposal on RF exposure would close the gaps in some of the agency’s rules but wouldn’t delve into significant absorption rate limits for cellphone handsets. As part of its NEPA responsibilities, the FCC has requirements in place for evaluating the environmental impact of its actions, including human RF exposure from FCC-regulated facilities. The pending proposal appears to be aimed at clarifying the responsibilities of licensees on parts of the rules and to help ensure compliance in a practical manner. On the enforcement front, the FCC’s plan outlined steps such as licensing bureaus referring appropriate cases to the Enforcement Bureau and “swift and effective enforcement to provide an incentive for parties to follow required processes before construction.” Enforcement would complement, “not supplant,” negotiation, the FCC said.

PCIA Pres. Jay Kitchen lauded the extent to which it appeared that the FCC’s plans would address environmental and historic preservation issues “in a responsible manner that fully and equally weighs the impact that federal policy has on the environment and historic preservation as well as the deployment of the nation’s wireless communications infrastructure.”