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Wireless Telecommunications Bureau Denies Tower Complaints Against AT&T

Posted on October 29, 2015

Please contact Michael Bennet at or Erin Fitzgerald at for more information.

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[1] implementing the National Environmental Policy Act (NEPA)[2] and other federal environmental statutes, including historic preservation review under the National Historic Preservation Act (NHPA),[3] 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).[4] 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,”[5] 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.”[6]  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.

[1] 47 C.F.R. Part 1, Subpart I.

[2] 42 U.S.C. §§ 4321-4370h.

[3] 54 U.S.C. § 300101 et seq.; see 47 C.F.R. § 1.1307(a)(4) and (5).

[4] 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).

[5] 47 C.F.R. Pt. 1, App. C, § V(C).

[6] 47 C.F.R. § 17.4(c)(3).

For additional information, please contact Erin Fitzgerald.

GAO Report Examines FCC Reforms and Effectiveness of Lifeline Program

Posted on April 27, 2015

The U.S. Government Accountability Office (GAO) has submitted a report to the Chairman of the Senate Committee on Commerce, Science and Transportation which summarizes the results of GAO’s examination of the Federal Communications Commission’s (FCC) efforts to reform the universal service Lifeline program. Specifically, the GAO report discusses (1) the status of Lifeline reform efforts and the extent to which the FCC has evaluated the effectiveness of the Lifeline program; (2) how the Lifeline program verifies household eligibility and addresses associated privacy and data security; (3) the extent to which households participate in Lifeline and the challenges, if any, they face in accessing and retaining Lifeline benefits; and (4) how the FCC plans to evaluate the Lifeline broadband pilot program and the extent to which the pilot program will enable the FCC to decide whether and how to include broadband in the Lifeline program. At the conclusion of the report, GAO “recommend[s] that [the] FCC conduct a program evaluation to determine the extent to which the Lifeline program is efficiently and effectively reaching its performance goals of ensuring the availability of voice service for low-income Americans while minimizing the contribution burden on consumers and businesses.”

For additional information, please contact Tony Veach.

Comcast Abandons Merger

Posted on April 27, 2015

Comcast CEO Brian Roberts announced on CNBC that the nation’s largest cable operator  has abandoned its attempted $45 billion acquisition of Time Warner, the nation’s second largest cable operator.  Comcast’s decision to walk away from the proposed merger follows discussions with federal regulators which provided indications that both the FCC and the Justice Department were preparing to oppose the deal.  It is estimated that acquisition of Time Warner would have given Comcast control of more than half of the nation’s broadband subscribers as well as 30% of the nation’s pay television customers.  The opposition to the deal comes as the over-the-top broadband video services are making substantial inroads in cutting into cable’s historic dominance of the video distribution market.

For additional information, please contact Howard Shapiro.

DelNero to Be Named Wireline Chief

Posted on April 24, 2015

The FCC has announced that Wireline Competition Bureau (WCB) Chief Julie Veach will be leaving the FCC on May 22, 2015 and that Chairman Wheeler will name WCB Deputy Bureau Chief Matt DelNero as the new chief. Additionally, current Acting Chief of the Consumer and Governmental Affairs Bureau (CGB) Kris Monteith will become Deputy Chief of the WCB and Alison Kutler will become Acting Chief of the CGB.

For additional information, please contact Bob Silverman.

Further Comment on DE and Bidding Credit Proposals Due May 14

Posted on April 24, 2015

The Federal Communications Commission has announced that interested parties have until May 14, 2015 to submit further comment on various industry proposals and changes to the FCC’s Designated Entity (DE) and bidding credit rules, which are outlined in the FCC’s recent public notice. The FCC is seeking comments and data on a number of proposals, including bidding credits specifically for rural telcos, bidding preferences for rural and unserved areas, and other possible rule changes regarding the attributable material relationship rule and joint bidding arrangements.

For additional information, please contact Bob Silverman.

Commission Seeks Additional Competitive Bidding Input

Posted on April 22, 2015

The Federal Communications Commission (FCC or Commission) has adopted a Public Notice seeking further comment in its Competitive Bidding/Designated Entity proceeding. The Commission is seeking comment on various industry proposals, regarding how it can meet its statutory obligation to ensure that small businesses, rural telephone companies, and businesses owned by members of minority groups and women (collectively, “designated entities” or “DEs”) have an opportunity to participate in the provision of spectrum-based services, while at the same time ensuring that there are adequate safeguards to protect against unjust enrichment to ineligible entities. Comments will be due 21 days after Federal Register publication of the Public Notice, which has not yet occurred. Reply comments will be due 7 days later.


For additional information, please contact Erin Fitzgerald.

FCC Adopts Rules for Citizens Broadband Radio Service

Posted on April 22, 2015

The Federal Communications Commission (FCC or Commission) has adopted rules for the Citizens Broadband Radio Service (3.5 GHz band). The Report and Order adopts spectrum sharing techniques to create a new three-tiered commercial radio service spanning 3550-3700 MHz. The use of advanced spectrum-sharing technology will allow wireless broadband systems to share spectrum with military radars and other incumbent systems, while protecting important federal missions. The Commission also adopted a Second Further Notice of Proposed Rulemaking that seeks comment on several related implementation issues.

For additional information, please contact Erin Fitzgerald.

Bureau Announces 2015 Urban Rate Survey Results

Posted on April 22, 2015

The Federal Communications Commission’s (FCC or Commission) USF/ICC Transformation Order required Connect America Fund recipients to offer voice and broadband services in supported areas at rates that are reasonably comparable to rates for similar services in urban areas.  In the Order, the  FCC directed the Wireline Competition and Wireless Telecommunications Bureaus to conduct a survey of residential urban rates for fixed voice, fixed broadband, mobile voice, and mobile broadband services.  The Commission has made data collected in the 2015 urban rate survey available to the public here.

The Wireline Competition Bureau has announced the 2015 rate floor for incumbent eligible telecommunications carriers (ETCs) and the reasonable comparability benchmark for fixed voice and broadband services. Based on the survey results, the 2015 rate floor for voice services is $21.22, and the reasonable comparability benchmark for voice services is $47.48. By July 1, 2015, all ETCs that are incumbent local exchange carrier (ILEC) recipients of high-cost support must report in their annual FCC Form 481 the number of residential service lines for which the sum of the local rate and state fees (as of June 1, 2015) is below $21.22.

For additional information, please contact Erin Fitzgerald.

NTIA Releases Latest Spectrum Progress Report

Posted on April 22, 2015

The National Telecommunications & Information Administration (NTIA) has released the Fifth Interim Progress Report on the Obama Administration’s initiative to identify and make available 500 megahertz of federal and non-federal spectrum for commercial wireless broadband use by 2020. The report outlines the progress made, in collaboration with the Federal Communications Commission (FCC) and other federal agencies, from October 1, 2013 through September 30, 2014.  Between October 2010 and September 2014, NTIA formally recommended or otherwise identified for study for potential reallocation up to 589 MHz in the following bands:

  • Federal or shared bands (335 MHz total):
    • 40 MHz from the 1695-1710 MHz and 1755-1780 MHz bands;
    • 100 MHz from the 3.5 GHz band (3550-3650 MHz)
    • 195 MHz from two of the 5 GHz bands (5350-5470 MHz and 5850-5925 MHz)
  • Non-Federal bands (152-254 MHz total):
    • 30 MHz from the 2305-2320 MHz and 2345-2360 MHz bands;
    • 10 MHz from the 1915-1920 MHz and 1995-2000 MHz bands;
    • 40 MHz from the 2000-2020 MHz and 2180-2200 MHz bands;
    • 25 MHz from the 2155-2180 MHz band;
    • 5 MHz from the 2020-2025 MHz band;
    • 42-144 MHz from the 512-698 MHz band.

The FCC has initiated rulemaking proceedings for these and other bands based upon its 2010 National Broadband Plan. NTIA and the FCC have also made significant progress toward the implementation of the key spectrum-related provisions of the Middle Class Tax Relief and Job Creation Act of 2012, with one spectrum auction occurring in early 2014, another beginning in November 2014, and a third with an anticipated start date in early 2016.

For additional information, please contact Erin Fitzgerald.

Deadline Set for Open Internet Appeals

Posted on April 15, 2015

The Federal Communications Commission’s (FCC or Commission) Open Internet decision was published in the Federal Register on April 13, triggering the deadline for petitions for review. Petitions for judicial review must be filed within 60 days of the release of the agency decision – June 12, 2015. AT&T, CTIA, the National Cable & Telecommunications Association, and the American Cable Association have all filed petitions for review in the U.S. Court of Appeals for the District of Columbia.

For additional information, please contact Erin Fitzgerald.