Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

COLTs and COWs Interim Waiver

Download Options

Released: May 16, 2013

Federal Communications Commission

FCC 13-72

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Amendment of Parts 1 and 17 of the
)
Commission’s Rules Regarding Public
)
RM No. 11688
Notice Procedures for Processing Antenna
)
Structure Registration Applications for
)
Certain Temporary Towers
)
)
2012 Biennial Review of
)
WT Docket No. 13-32
Telecommunications Regulations
)

ORDER

Adopted: May 15, 2013

Released: May 16, 2013

By the Commission: Commissioner McDowell not participating.

I.

INTRODUCTION

1.
In this Order, we take initial action to remove an administrative obstacle to the
availability of broadband and other wireless services during major events and unanticipated periods of
localized high demand. Specifically, we grant an interim waiver, pending completion of an upcoming
rulemaking proceeding, of our pre-construction environmental notice requirements for certain temporary
towers that require antenna structure registration.1 By so doing, we create an efficient mechanism for the
timely erection of temporary towers in response to unanticipated needs without creating a significant risk
of environmental harm.

II.

BACKGROUND

A.

The Environmental Notification Process for Antenna Structure Registrations

2.
Under the Antenna Structure Registration (ASR) program, owners of antenna structures
that are taller than 200 feet above ground level or that may interfere with the flight path of a nearby
airport must register those structures with the Commission.2 The antenna structure owner must obtain
painting and lighting specifications from the Federal Aviation Administration (FAA) and include those
specifications in its registration prior to construction. The ASR program allows the Commission to fulfill
its statutory responsibility to require painting and lighting of antenna structures that may pose a hazard to
air navigation.3
3.
The National Environmental Policy Act (NEPA) requires all federal agencies, including
the FCC, to identify and take into account environmental effects when deciding whether to authorize or

1 See 47 C.F.R. § 17.4 (c).
2 See 47 C.F.R. § 17.7.
3 See 47 U.S.C. § 303(q).
1

Federal Communications Commission

FCC 13-72

undertake a major federal action.4 The Commission has deemed processing of antenna structure
registration applications to be a major federal action.5 The Commission’s NEPA rules and procedures,
which have been approved by the Council on Environmental Quality, require preparation of an
Environmental Assessment (EA) for any proposed action that may have a significant environmental effect
under the criteria set out in Section 1.1307 of the Commission’s rules.6 Proposed actions that are deemed
individually and collectively to have no significant environmental effects and that are not covered by the
environmental criteria set out in Section 1.1307 of the rules are categorically excluded from
environmental processing.7 In such cases, the Bureau shall order preparation of an EA if it determines,
based on its review of a petition from an interested person or on its own motion, that an otherwise
categorically excluded action may have a significant environmental impact.8
4.
One of NEPA’s central goals is to facilitate public involvement in agency decisions that
may affect the environment.9 The Commission’s environmental notification process is intended to fulfill
this goal with respect to ASR applications.10 Under the environmental notification rules, prior to filing a
completed ASR application for a new antenna structure or an antenna structure modification that involves

4 42 U.S.C. § 4321 et seq.
5 In the Matter of Streamlining the Commission’s Antenna Structure Clearance Procedure, Report and Order, 11
FCC Rcd 4272, 4289, para. 41 (1995) (finding that the registration of an antenna structure constitutes a major
federal action subject to NEPA) (Antenna Structure Clearance R&O). Accord, In the Matter of Nationwide
Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, Report
and Order
, 20 FCC Rcd 1073, 1084, para. 27 (2004), aff’d sub nom. CTIA-Wireless Ass’n v. FCC, 466 F.3d 105
(2006) (explaining that the Commission’s treatment of tower registrations as federal undertakings within the
meaning of Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, is a permissible interpretation
in light of the preconstruction approval process that it has implemented to assure that communications towers are not
a risk to air safety under Section 303(q) of the Communications Act).
6 See 47 C.F.R. § 1.1307(a), (b) (listing circumstances where an EA is required); see also id. § 1.1307(d) Note
(pending a final determination regarding permanent measures to protect migratory birds, an EA will be required for
new towers over 450 feet in height above ground level, modifications of such towers that involve a substantial
increase in size, or changes of lighting on such towers to a less preferred style).
7 47 C.F.R. § 1.1306.
8 See 47 C.F.R. § 1.1307(c), (d).
9 40 C.F.R. §§ 1500.1(b), 1500.2(d) (“Federal agencies shall to the fullest extent possible … encourage and facilitate
public involvement in decisions which affect the quality of the human environment.”); Robertson v. Methow Valley
Citizens Council,
490 U.S. 332, 349 (1989) (“The statutory requirement that a federal agency contemplating a major
action prepare … an Environmental Impact Statement … guarantees that the relevant information will be made
available to the larger audience that may also play a role in both the decisionmaking process and the implementation
of that decision.”).
10 See In the Matter of National Environmental Policy Act Compliance for Proposed Tower Registrations, In the
Matter Effects of Communications Towers on Migratory Birds, WT Docket Nos. 08-61, 03-187, Order on Remand,
26 FCC Rcd 16700 (2011) (Order on Remand); The Wireless Telecommunications Bureau Provides Guidance on
the Implementation of the Environmental Notification Process for the Registration of Antenna Structures, Public
Notice, 27 FCC Rcd 5081 (WTB 2012) (ASR Guidance PN). The Commission adopted its environmental
notification process in response to the decision of the Court of Appeals for the District of Columbia Circuit in
American Bird Conservancy v. FCC, which held that the Commission's previous antenna structure registration
procedures had impermissibly failed to offer members of the public a meaningful opportunity to request an EA for
proposed towers that the Commission considers categorically excluded from review under NEPA. American Bird
Conservancy v. FCC
, 516 F.3d 1027, 1035 (D.C. Cir. 2008).
2

Federal Communications Commission

FCC 13-72

a substantial increase in size11 or a change to a less preferred lighting style,12 the ASR applicant must
provide local and national notice of the application so that members of the public have an opportunity to
comment on the environmental effects of the proposal. Specifically, the applicant must provide notice of
the proposal to the community by publication in a local newspaper of general circulation or other
appropriate means, and the Commission then posts information about the proposal on its website for
thirty days.13 Commission staff then reviews the partially completed application and considers any timely
filed comments received from the public to determine whether an Environmental Assessment (EA) is
required for the tower. If staff determines that no EA is required, and if the applicant has determined that
no EA is otherwise required under Section 1.1307(a) or (b), the applicant may then certify that the tower
will have no significant environmental impact when it submits its completed application on FCC Form
854. At this point, if all other required information has been provided, the application will be granted and
the applicant will be issued a Registration Number.
5.
The following types of ASR applications are not subject to the environmental notification
process: modification of an existing tower that does not involve a substantial increase in size or change in
lighting to a less preferred lighting style; a collocation where the placement of the antenna does not
involve a substantial increase in size or excavation more than 30 feet beyond the property; dismantlement
of a registered tower; or construction of a replacement tower within the definition set forth in our rules.14
Additionally, the Commission’s ASR public notice procedures provide for case-by-case waivers in
“emergency situations, such as where temporary towers need to be built quickly to restore lost
communications.”15

B.

CTIA’s Petition

6.
On December 21, 2012, CTIA—The Wireless Association (CTIA) filed a Petition for
Expedited Rulemaking (Petition) asking the Commission to revise Section 17.4(c)(3)-(4) of its rules16 to
relieve the burden of going through the environmental notification process for certain categories of
temporary towers as defined in its Petition.17 CTIA asks that we exempt from environmental notification
temporary towers that: (1) will be in use for 60 days or less; (2) require the filing of Form 7460-118 with

11 See 47 C.F.R. § 17.4(c)(1)(ii), referencing Nationwide Agreement for the Collocation of Wireless Antennas, 47
C.F.R. Pt. 1, App. B, § I.C.
12 For the order of preference of lighting styles, see 47 C.F.R. § 17.4(c)(1)(iii).
13 See 47 C.F.R. § 17.4(c)(3)-(4). Members of the public have an opportunity to file a request for further
environmental review (Request) of the proposed tower during this 30-day period. Oppositions are due 10 calendar
days after expiration of the time for filing Requests, and Replies are due 5 business days after expiration of the time
for filing oppositions. See 47 C.F.R. § 17.4(c)(5).
14 See Order on Remand, 26 FCC Rcd. at 16719-16722, paras. 50-55; 47 C.F.R. § 17.4(c)(1).
15 Order on Remand, 26 FCC Rcd. at 16717, n. 117. There is also a limited exemption for antenna structures
located on federal land for which the landholding agency has assumed responsibility for determining whether the
facility will have a significant environmental impact. Id. at para 56.
16 47 C.F.R. § 17.4 (c)(3)-(4).
17 CTIA Petition for Expedited Rulemaking, filed Dec. 21, 2012 (CTIA Petition).
18 FAA Form 7460-1, Notice of Proposed Construction or Alteration, must be filed with the FAA prior to
construction or alteration of any structure that is over 200 feet in height above ground level (AGL); that is within the
glide slope of an airport runway (as defined in the FAA rules); or that is on a listed type of airport or heliport. See
14 C.F.R. §§ 77.9, 77.7(a). Towers that require the filing of Form 7460-1 are required to be registered with the
Commission. See 47 C.F.R. § 17.4(a). Thus, for example, a temporary tower under 200 feet in height that is within
(continued….)
3

Federal Communications Commission

FCC 13-72

the FAA; (3) do not require marking or lighting pursuant to FAA regulations; and (4) will be less than
200 feet in height (Two Month Towers).19 CTIA also requests a waiver, pursuant to Sections 1.3 and
1.925 of the Commission’s rules,20 under which towers that fall under the foregoing criteria would be
exempt from the ASR public notice requirements during the pendency of the Petition and any rulemaking
initiated pursuant to its Petition. 21
7.
According to CTIA, although the Commission has provided for waivers of notice in
emergency situations, many non-emergency situations arise in which carriers need temporary towers to
address short-term capacity constraints but have insufficient advance notice to complete the public notice
process. These events, such as major news events, may occur with little or no advance warning; do not
fall squarely within the “emergency” category; and would cause significant disruption if temporary
facilities could not be rapidly deployed. CTIA asserts that in other cases, even when the timing and
location of an event are well known, carriers may be unable to obtain specific locations for temporary
sites until shortly before the event, with insufficient time to complete local notice. A temporary tower
also may be necessary in non-emergency situations in which a permanent tower must be repaired.22 CTIA
asserts that over the past year there have been multiple race events, state fairs, and air shows at which
temporary facilities could not be deployed due to the new ASR notice requirements.23 It notes that a
variety of newsworthy events, such as a presidential campaign stop or a forest fire, can occur with less
than 30 days’ notice and trigger significant short-term capacity demands on local wireless networks that
can only be met using temporary towers.24 CTIA states that an exemption from environmental notice and
an interim waiver of notice for Two Month Towers would address the foregoing situations without
undermining meaningful environmental or air safety review or significantly affecting avian mortality, and
would therefore serve the public interest.25
8.
On January 25, 2013, the Wireless Telecommunications Bureau invited comment on
CTIA’s Petition and waiver request.26 AT&T Services, Inc. (AT&T), Verizon Wireless (Verizon),
NTCH, Inc. (NTCH), and PCIA—The Wireless Infrastructure Association (PCIA) filed comments
supporting both the Petition and the request for an interim waiver.27 CTIA and PCIA filed reply
comments. No commenting party opposed either the Petition or the waiver request.
(Continued from previous page)
20,000 feet (3.79 miles) of an airport runway may need FAA notice, ASR registration, and public notice, depending
on its specific height and location. See 14 C.F.R. 77.9.
19 CTIA represents that the majority of Two Month Towers will be cells on light trucks (COLTs) and cells on
wheels (COWs). CTIA Petition at 4.
20 47 C.F.R. §§ 1.3, 1.925.
21 CTIA Petition at 11-12.
22 Id. at 4-7.
23 Id. at 6-7.
24 Id. at 5-6.
25 Id. at 7-11.
26 Wireless Telecommunications Bureau Seeks Comment on Petition of CTIA—The Wireless Association for
Expedited Rulemaking and Blanket Waiver Regarding Public Notice Procedures for Temporary Towers, Public
Notice
, RM-11688, DA 13-53 (WTB January 25, 2013). Comments were due February 25, 2013. Reply comments
were due March 12, 2013.
27 NTCH also filed its comments in the Biennial Review docket. See Commission Seeks Public Comment in 2012
Biennial Review of Telecommunications Regulations, Public Notice, CG Docket No. 13-29, EB Docket No. 13-35,
(continued….)
4

Federal Communications Commission

FCC 13-72

III.

DISCUSSION

9.
For the reasons set forth below, we grant an interim waiver from the environmental
notice requirements for substantially all of the class of temporary towers that CTIA requests. We will not
apply the interim waiver to a temporary tower that requires excavation unless the ground is already
previously disturbed to a depth that exceeds the proposed construction depth by at least 2 feet.28 Thus, the
interim waiver adopted herein will cover temporary towers that (1) will be in use for no more than 60
days; (2) require notice of construction to the FAA; (3) do not require marking or lighting under FAA
regulations; (4) will be less than 200 feet in height; and (5) involve no or only minimal ground
disturbance. We intend in the near future to issue a Notice of Proposed Rulemaking that will consider
CTIA’s request for a permanent exemption from environmental notification procedures for the Two
Month Towers. The interim waiver that we adopt in this order will remain in effect pending completion
of that rulemaking proceeding.
10.
We may grant a waiver when: (i) the underlying purpose of the rule(s) would not be
served or would be frustrated by application to the instant case, and a grant of the requested waiver would
be in the public interest; or (ii) in view of the unique or unusual factual circumstances of the instant case,
application of the rule(s) would be inequitable, unduly burdensome, or contrary to the public interest, or
the applicant has no reasonable alternative.29
11.
We find that, during the interim period pending the initiation and completion of a
rulemaking proceeding to consider CTIA’s request to permanently exempt Two Month Towers from the
ASR public notice procedures, requiring such notice does not serve the purpose of the rule and that an
interim waiver is in the public interest. 30 The purpose of environmental notice is to facilitate public input
on towers that may have a significant environmental impact. Towers eligible for the interim waiver will
be in place for a mere two months or less, unlit and less than 200 feet in height. Our experience in
administering the ASR public notice process is that antenna structures with these attributes rarely generate
public comment regarding potentially significant environmental effects and rarely are determined to
require further environmental processing.31 We note that the NPA completely exempts from historic
preservation review under Section 106 of the National Historic Preservation Act (NHPA) a broader
category of temporary towers, generally defined as towers that remain in place for up to 24 months.32
(Continued from previous page)
IB Docket No. 13-30, ET Docket No. 13-36, PS Docket No. 13-31, WT Docket No. 13-32, WC Docket No. 13-33,
FCC 13-17 (rel. February 5, 2013).
28 See para. 12, infra.
29 47 C.F.R. § 1.925(b)(3). Section 1.3 of the rules also provides that the Commission may grant a rule waiver for
good cause shown. 47 C.F.R. § 1.3.
30 See, e.g., Amendment of Part 101 of the Commission's Rules to Accommodate 30 MHz Channels in the 6525-
6875 MHz Band, Amendment of Part 101 of the Commission's Rules to Accommodate 30 MHz Channels in the
6525-6875 MHz Band, WT Docket No. 09-114, Notice of Proposed Rulemaking and Order, 24 FCC Rcd. 9620
(2009) (granting waiver pending outcome of rulemaking where doing so would provide significant public interest
benefits, and where there was no opposition).
31 See Verizon Comments at 5 (asserting that Verizon has not received any opposition to its ASR applications for
temporary towers since implementation of the notice requirements); see also CTIA Reply Comments at 5; PCIA
Reply Comments at 5.
32 See Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings
Approved by the Federal Communications Commission (NPA), 47 C.F.R. Pt. 1, App.C, § III.C (“the term
‘temporary’ means ‘for no more than twenty-four months duration except in the case of those Facilities associated
with national security’”).
5

Federal Communications Commission

FCC 13-72

While the purposes of the ASR public notice procedures and of the Section 106 historic preservation
review are not identical, the NPA exclusion does evince a general recognition that temporary towers are
less likely than permanent structures to have a significant environmental effect.33 The fact that proposed
towers qualifying for the interim waiver adopted herein will be relatively short and unlit further reduces
the possibility of significant environmental impacts, particularly on migratory birds.34 Further, the
interim waiver does not relieve ASR applicants from having to comply with the Commission’s other
NEPA rules, including the obligation to certify environmental compliance on a completed ASR
application. Under those rules, if an applicant determines that it needs to complete an EA, environmental
notification will be required. We also note that granting this waiver does not jeopardize air safety, given
that towers subject to lighting or marking under FAA regulations will be ineligible for the interim waiver.
12.
To further ensure against significant environmental impacts, we limit the interim waiver
of environmental notice to those proposals that either involve no excavation or involve excavation where
the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other
anchoring mechanisms) by at least two feet. We are concerned that excavation of previously undisturbed
ground may cause significant effects on historic or other environmental resources. For this reason, the
NPA exclusion from Section 106 review for temporary towers is limited by the same excavation
conditions that we adopt today.35 As the Commission explained in adopting the NPA, “[s]o long as no
excavation will occur on previously undisturbed ground, the risk of damage to archeological or other
historic properties from a temporary facility is small.”36 The Commission further noted that temporary
facilities usually involve little or no excavation.37 We will seek comment on whether to retain this
limitation in a Notice of Proposed Rulemaking when we consider whether to adopt any permanent rule.
13.
In concluding that the interim waiver we adopt herein will not undermine the purposes of
the ASR public notice requirements, we find it significant that no party filed comments opposing either
the Petition or the request for waiver. The absence of objection bolsters our confidence that during the
interim period until we complete a rulemaking proceeding, applying the ASR environmental notification
procedures to the temporary towers addressed in this Order is not necessary to serve the purposes of the
environmental notification rules.

33 NTCH asks us to exempt from the notice process qualifying towers that will be in place for up to three months
instead of two. NTCH Comments at 3; see also CTIA Reply Comments at 4 (supporting an exemption for Two
Month Towers but not objecting to extending the exemption to include towers deployed for up to 90 days). We will
consider this and all other comments in our rulemaking, but we limit the duration of these towers to two months for
the purposes of this interim waiver.
34 Based on a review and analysis of available peer-reviewed literature, the Final Programmatic Environmental
Assessment found that, all other factors being equal: taller towers result in higher levels of avian mortality than
shorter towers; towers with guy wires result in higher levels of avian mortality than towers without guy wires; and
steady-burning lights result in higher levels of avian mortality than flashing lights. See Final Programmatic
Environmental Assessment for the Antenna Structure Registration Program, released March 13, 2012, at 7-1,
available at: http://www.fcc.gov/pea; see also Order on Remand, 26 FCC Rcd at 16722, para. 54 (finding that
absence of lighting is the most preferred lighting style); id. at 16731-32, para. 80 (citing data indicating no evidence
of large-scale bird mortality at towers less than approximately 450 feet in height).
35 See NPA, 47 C.F.R. Pt. 1, App.C, §§ III.C., VI.D.2.c.i.
36 Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Review Process,
WT Docket No. 03-128, Report and Order, 20 FCC Rcd. 1073, 1091, para. 49 (2004), recon. denied, 24 FCC Rcd.
14841 (2009).
37Id; see also PCIA Reply Comments at 3 (noting that temporary towers by their nature do not cause significant
ground disturbance).
6

Federal Communications Commission

FCC 13-72

14.
We further find that an interim waiver is in the public interest. Commenters have
detailed four broad categories of non-emergency situations in which temporary towers must be deployed
quickly in order to avoid disruption of service to the public and in which such deployment is delayed by
the environmental notification process: (1) newsworthy events that occur without any prior notice, such as
the Virginia Tech shooting and train derailments; (2) other events that occur with less than 30 days
advance notice, such as some political events and parades for sports teams; (3) events of which the timing
and general location are known in advance, but the event manager may not convey the specific locations
for temporary towers to the wireless carriers until days before the event, such as state fairs and major
sporting events; and (4) situations in which unexpected difficulties with permanent structures require the
deployment of temporary towers while permanent facilities are repaired.38 The record, as well as our own
experience administering the environmental notice rule, shows that substantial numbers of such non-
emergency temporary towers -- although not all -- require registration. Accordingly, it is reasonable to
anticipate that additional instances will arise during the pendency of the rulemaking proceeding in which,
absent the waiver we adopt here, service disruptions may occur because of insufficient time to complete
the ASR notice process before a temporary tower subject to registration must be placed in service to
address short-term capacity constraints.
15.
The ASR notice process takes approximately 40 days,39 as carriers must provide local and
national public notice, allow 30 days for the filing of any requests for further environmental review, and
wait for the Commission to clear the tower for a final certification. If a request for environmental review
is filed, even if it lacks merit, the deployment could be delayed longer. Commission staff endeavors to
resolve all pending ASR applications promptly, and has entertained case-by-case waiver requests for non-
emergency temporary towers where the applicant has shown that completing the notice process is
impractical. We agree with AT&T, however, that this process is inefficient and that the notice process
may ultimately be unnecessary for the narrow category of temporary towers within the scope of the
interim waiver that we are granting.40 Moreover, while we ordinarily require that environmental notice be
provided within a short period after construction when pre-construction notice is waived due to an
emergency situation, the Commission recognized that in some circumstances post-construction notice
may be impractical or not in the public interest.41 Because towers subject to this waiver will be in place
for no more than two months, we find for purposes of this interim waiver that post-construction notice of
these towers is not in the public interest.
16.
In sum, pending the expeditious completion of a rulemaking proceeding to consider
CTIA’s request for a permanent exemption from the ASR public notice procedures, we find that granting
interim relief from these requirements does not undermine the purpose of the environmental notice rule
because the towers subject to the waiver are unlikely to have a significant environmental impact. Further,
an interim waiver serves the public interest because situations frequently arise where there is insufficient
time to complete the notice process before a temporary tower must be constructed to meet near-term
demand. While staff has endeavored to accommodate these situations on a case-by-case basis, this
process is inefficient and creates uncertainty. For all those reasons, it is in the public interest to waive the
notice requirement in the interim for all towers covered by this Order until we determine in the
forthcoming rulemaking whether to permanently exempt the Two Month Towers, or a subset of the Two
Month Towers, from the ASR public notice rules.

38 See CTIA Petition at 5-6; AT&T Comments at 5-6; NTCH Comments at 1; PCIA Comments at 4; Verizon
Wireless Comments at 3-4, 7-8; CTIA Reply Comments at 3.
39 See ASR Guidance PN, 27 FCC Rcd. at 5082.
40 See AT&T Comments at 5, 7-8.
41 Order on Remand, 26 FCC Rcd. at 16717, n. 117.
7

Federal Communications Commission

FCC 13-72

17.
Applicants seeking to register towers that are eligible for the interim waiver granted here
should answer "Yes" to Question 45 on FCC Form 854, and attach an explanation of how the proposed
tower meets the criteria set forth in this Order. Such applicants will be required to certify environmental
compliance and must comply with FAA rules and procedures, as applicable.

IV.

ORDERING CLAUSES

18.
Accordingly, IT IS ORDERED that, pursuant to Sections 1.3 and 1.925 of the
Commission’s rules, 47 C.F.R. §§ 1.3, 1.925, the request of CTIA—The Wireless Association for a
waiver of Sections 17.4(c)(3)-(4) of the Commission’s rules, 47 C.F.R. § 17.4(c)(3)-(4) is GRANTED to
the extent provided in this Order pending the resolution of CTIA’s Petition for Expedited Rulemaking and
any consequent rulemaking proceeding.
19.
IT IS FURTHER ORDERED that this waiver IS EFFECTIVE immediately upon release
of this Order.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
8

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.