FCC IMPOSES $38,000 FINE FOR PREMATURE CONSTRUCTION OF ANTENNA TOWERS

Recently, the Federal Communication Commission (FCC") issued a Consent Decree detailing the $38,000 settlement reached with a telecommunications company relating to its failure to complete required environmental and historic preservation reviews before beginning construction on new wireless telecommunications towers and prior to following the prescribed procedures under the FCC's antenna structure registration (ASR") Rules.

Under the FCC's environmental rules, both applicants and licensees must assess, prior to construction, whether most proposed facilities such as antenna towers may significantly affect the environment including those facilities: (i) to be located in an officially designated wilderness areas or wildlife preserves; (ii) that may affect listed threatened or endangered species or critical habitats; (iii) are likely to jeopardize the continued existence of any proposed endangered or threatened species; or (iv) are likely to result in the destruction or adverse modification of proposed critical habitats. Additionally, applicant and licensees are required to consider, prior to construction, whether their proposed facilities may affect districts, sites, buildings, structures, or objects that are listed, or eligible for listing, in the National Register of Historic Places, all the while following the prescribed procedures set forth in the rules of the Advisory Council on Historic Preservation, or, if applicable, the Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process. Finally, under the FCC's ASR Rules, applicants and licensees are required to follow the prescribed registration procedures set forth in section 17.4 of the Rules prior to construction or alteration of an antenna tower if the proposed structure either (i) exceeds 200 feet above ground level; or (ii) may interfere with the flight path of a nearby airport.

Here, the telecommunications company James Valley Cooperative Telephone Company began construction on six new antenna towers in Brown County, South Dakota one month prior to submitting antenna structure registrations under the ASR Rules and four months prior to submitting the required environmental and historic preservation review forms. The company ultimately admitted that it began construction on five of the six towers before completing the required environmental and historic preservation reviews and that it began construction on the last tower before applying for an antenna structure registration, in violation of the Rules. As a result of these admissions in the Consent Decree, the firm was required to (1) pay a civil penalty of $38,000 and (2) implement an FCC approved compliance plan.

While the civil penalties for violations such as those discussed above can certainly be quite costly, the implementation of a compliance plan can add to those costs, as FCC ordered compliance plans present significant upfront and ongoing regulatory costs, including: developing an approved compliance plan and manual, training management and employees, monitoring and reporting both compliance and noncompliance, attorney fees, filing fees, and more.

It is therefore critical that applicants and licensees ensure compliance with all necessary statutes and regulations and receive all necessary approvals before they begin construction on any most antenna structures. The best way to ensure one does so is through retaining experienced and effective counsel, from the initial planning stages of a project on through completion. If you have questions about the FCC's antenna structure construction and registration review process, do not hesitate to contact a Fletcher, Heald & Hildreth attorney.