The Federal Communications Commission’s (FCC or Commission) Wireless Telecommunications Bureau (WTB or Bureau) has denied petitions filed by four parties, including Sheyenne River Valley National Scenic Byway, and the North Country Trail Association, alleging that AT&T Mobility Services, Inc. (AT&T) failed to comply with the FCC’s environmental and historic preservation review requirements in connection with a tower constructed in late 2012 in Fort Ransom, North Dakota.
Bottom Line: Although the FCC found that AT&T failed to comply with a number of procedural requirements, it found no material errors or omissions in the historic preservation and environmental review process, and rejected the complaints.
In early 2012, AT&T commenced the environmental review required by the Commission’s rules implementing the National Environmental Policy Act (NEPA) and other federal environmental statutes, including historic preservation review under the National Historic Preservation Act (NHPA), for the Fort Ransom Tower. On March 6, 2012, AT&T contacted the Tribal Nations with an interest in the geographic area containing the proposed tower site through the Tower Construction Notification System (TCNS). None of these Tribal Nations identified an interest in any historic or cultural property that might be affected by the then-proposed tower. On April 22, 2012, AT&T submitted its FCC Form 620 (historic preservation review packet) to the State Historical Society of North Dakota (NDSHPO) as part of the Section 106 NHPA review process required under the Nationwide Programmatic Agreement (NPA). The NDSHPO agreed with AT&T’s recommendation that the proposed Fort Ransom Tower would have no effect on historic properties within the tower’s area of potential effects. AT&T published notice of its historic preservation review, which is required under the NPA, in a local newspaper on April 30, May 7, and May 14, 2012.
In April 2012, AT&T contacted the U.S. Fish and Wildlife Service North Dakota Field Office and the ND Game and Fish Department, asking whether the proposed Fort Ransom Tower site was in or near a designated wilderness area, wildlife preserve, or critical habitat and whether the site sustained plant or animal species that had been designated or proposed as threatened or endangered. The agencies responded that the proposed tower site was not in or near a designated wilderness area, wildlife preserve, or critical habitat and that the tower should not have significant environmental effects on wildlife or wildlife habitat.
Because AT&T was required to notify the Federal Aviation Administration of the tower’s proposed construction, FCC rules require the tower to be registered in the Antenna Structure Registration (ASR) system. The registration process involves both a national public notice that the Commission publishes on its website and a local notice that the applicant is required to publish in a newspaper of general circulation or by other appropriate means. AT&T’s ASR application file confirms that national notice was published on July 17, 2012, and AT&T certified in its application that local environmental notice was also published on July 17, 2012. However, a copy of this local notice included in AT&T’s pleadings indicates that it was published on July 23, 2012.
The ASR Application was granted on August 28, 2012. AT&T transferred ownership of the tower to Skyway Towers, LLC (Skyway), and on October 2, 2012, Skyway filed a Notice of Construction in the ASR system. As constructed, the Fort Ransom Tower is a latticework structure with lighting and an overall height above ground level of 320 feet.
Four parties (the Complainants) filed complaints against the constructed Fort Ransom Tower between November 2012 and March 2013: the Sheyenne River Valley National Scenic Byway (Sheyenne), Don Busta, Judith L. Morris, and the North Country Trail Association (NCTA). All four Complainants argue that AT&T failed to: (1) provide adequate notice of the proposed Fort Ransom Tower to interested parties; and (2) adequately assess whether the proposed tower would have a significant environmental effect or impact on historic properties.
Notice Issues. The Competition and Infrastructure Policy Division of the Wireless Telecommunications Bureau (Division) reviewed the complaints and found that the Fort Ransom Tower was correctly determined to have no significant environmental impact and no adverse effects on historic properties. As such, the Division dismissed in part and denied in part the complaints. The Division did note, however, that AT&T failed to adhere fully to all procedural requirements, and advised that all applicants are responsible for ensuring full compliance with environmental review requirements.
The Division rejected the Complainants’ assertions that AT&T was required to provide any notice to the local public or to specific individuals or organizations beyond publication in the newspaper. The Division found that the record shows AT&T satisfied these requirements through publication in the local newspaper. The Division also rejected Complainants’ assertion that AT&T failed to comply with the Commission’s requirement to contact local government as part of the Section 106 process. The NPA requires applicants to provide written notice to “the local government that has primary land use jurisdiction over the site,” which in this case is the City of Fort Ransom (City). AT&T’s NEPA Report documented that its consultant wrote to the City using an email address that Sheyenne believed may have been a tourism hotline email address. The record did not establish that the email address AT&T used was incorrect or that AT&T should have used a different email or other address to contact the City. Further, the City has not complained about lack of written notice under the NPA.
Despite these findings, the Division did observe that AT&T fell short of the notice requirements in Section 17.4(c) and the NPA in several respects. First, the NPA notices did not include a street address, as required. Instead, AT&T described the location of the then-proposed tower as “near the intersection of Sorby Hill Rd and Valley Rd, Fort Ransom, ND 58033.” The Division noted that a street address was available, as it was included in AT&T’s July 23, 2012 local public notice pursuant to the Commission’s ASR rules.
In addition, both notices were untimely. The NPA requires applicants to provide local public notice of their proposed towers on or before the date on which the applicant submits its FCC Form 620 to the SHPO, thereby giving the SHPO the opportunity to consider any public comments. AT&T published local public notice describing the proposed tower and inviting public comments with respect to its potential effects on historic properties on April 30, May 7, and May 14, 2012. However, it failed to publish this notice on or before April 22, 2012 – the date on which it submitted its FCC Form 620 to the NDSHPO.
Further, FCC rules require a prospective ASR applicant to provide local public notice containing specific details about the proposed tower and instructions for filing requests for further environmental review “through publication in a newspaper of general circulation or other appropriate means.” On or after the date on which local notice is published, the FCC posts notification of the proposed construction on its website. This national environmental notice remains on the Commission’s website for 30 days, after which interested members of the public may no longer submit requests for further environmental review. Thus, in order to ensure compliance with these timing provisions, the applicant must publish local notice on or before the date on which it requests that the Commission publish national notice, and the applicant is required to inform the FCC that it supplied the required local notice when it completes its application. Although AT&T’s application included this information, as well as a general certification that all information in the application was true, complete, correct, and made in good faith, it in fact published local public notice pursuant to the Commission’s ASR rules on July 23, 2012. As such, the public comment period remained open for only 24 days following local notice – not 30 or more days, as would be the case in a fully compliant scenario.
The Division found that the procedural notice defects did not invalidate AT&T’s review. While the Section 106 notice did not contain a street address, it accurately described the tower’s location, and there is no evidence that the lack of a street address misled any potential commenter. Furthermore, the Division found there was no evidence that any party attempted to file a comment or request for review within 30 days of either notice but was prevented from doing so.
Section 106 and Environmental Review. The Division found no evidence that the applicant committed any material error or omission in completing the 106 process prescribed under the NPA that precluded the NDSHPO’s effective review, and therefore declined to reopen the NDSHPO’s final determination that no historic properties were affected. Further, because no timely public comments or objections were received, the Division dismissed each complaint as untimely filed with respect to claims of potentially significant environmental impacts.
 47 C.F.R. Part 1, Subpart I.
 42 U.S.C. §§ 4321-4370h.
 54 U.S.C. § 300101 et seq.; see 47 C.F.R. § 1.1307(a)(4) and (5).
 See 47 C.F.R. § 1.1307(a)(4) and 47 C.F.R. Pt. 1, App. C (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, § V(C).
 47 C.F.R. § 17.4(c)(3).
For additional information, please contact Erin Fitzgerald.