Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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**ORDER**

**Adopted:** October 29, 2001 **Released:** December 5, 2001

By the Commission: Commissioner Copps issuing a statement.

# INTRODUCTIOn

1.  This order responds to a petition for rulemaking filed by Public
    Employees for Environmental Responsibility (PEER).[^1] PEER asks the
    Commission to amend its environmental rules as applied to submarine
    cables, fiber optic lines, and radio spectrum requiring use of
    communications towers. PEER also urges the Commission to conduct a
    "joint-rulemaking" with other federal agencies, as well as to
    conduct a rulemaking to determine whether it should establish an
    "Office of Environmental Compliance." For the reasons set forth
    below, we deny PEER's petition.

# BACKGROUND

2.  Under the National Environmental Policy Act (NEPA),[^2] federal
    agencies, including the Commission, are required to establish
    procedures to identify and account for the environmental impact of
    projects they undertake or authorize.[^3] NEPA created the Council
    on Environmental Quality (CEQ) to oversee the environmental programs
    and activities of the federal government in order to determine the
    extent to which these programs are contributing to the national
    achievement of U.S. environmental policy.[^4] CEQ published
    rules,[^5] "tell\[ing\] federal agencies what they must do to comply
    with the procedures and achieve the goals of \[NEPA\]."[^6] The CEQ
    rules "provide regulations applicable to and binding on all Federal
    agencies for implementing the procedural provisions of the National
    Environmental Policy Act of 1969...except where compliance would be
    inconsistent with other statutory requirements."[^7] Thus, each
    federal agency issues its own rules implementing NEPA, following the
    requirements in the CEQ regulations.[^8] CEQ's rules establish a
    three-tiered approach to NEPA implementation.[^9] First, CEQ
    regulations require federal agencies to prepare an environmental
    impact statement (EIS)[^10] for any major federal action
    significantly affecting the quality of the human environment.[^11]
    Second, CEQ regulations require the preparation of an environmental
    assessment (EA) [^12] for any major federal action that may
    significantly affect the environment.[^13] Federal agencies may
    permit applicants to prepare environmental assessments.[^14] Third,
    CEQ regulations require federal agencies to identify typical
    categories of actions -- "categorical exclusions" -- that normally
    do not require either an EA or EIS because these categories of
    activities individually and cumulatively have no significant effect
    on the human environment.[^15] An agency's procedures must provide
    for extraordinary circumstances in which a normally excluded action
    may have a significant environmental effect.[^16]

3.  The Commission's environmental rules implementing NEPA are set out
    at 47 C.F.R. §§ 1.1301-1.1319. The Commission's rules are consistent
    with CEQ's three-tiered approach: (1) any Commission action deemed
    to have a significant effect upon the quality of the human
    environment requires the preparation of an EIS;[^17] (2) an action
    deemed potentially to have a significant environmental effect
    requires the preparation of an EA;[^18] and (3) actions deemed
    individually and cumulatively to have no significant effect on the
    quality of the human environment are categorically excluded from
    environmental processing,[^19] but in extraordinary cases may
    require the preparation of an EA.[^20] The Commission has
    identified, in section 1.1307(a) and (b) of its rules, those types
    of communications facilities that it authorizes that may
    significantly affect the environment.[^21] Specifically, the
    Commission requires applicants for Commission action with respect to
    these types of facilities to prepare an EA prior to licensing,
    registration or construction.[^22] Consistent with CEQ regulations,
    the Commission directs its license and registration applicants to
    submit their own environmental information to the agency and to
    prepare and submit EAs for the Commission's independent
    evaluation.[^23] In addition, these types of facilities may be
    subject to further environmental processing under the Commission's
    EIS procedures.[^24]

4.  In its petition, PEER asks the Commission to rewrite its
    environmental rules implementing NEPA to treat certain Commission
    actions as potentially damaging to the environment. Specifically,
    PEER proposes that the Commission require applicants for
    [all]{.underline} Commission actions concerning submarine cables,
    fiber optic lines, and spectrum requiring use of communications
    towers to file an EA for "public utility" facility elements or an
    EIS for "private utility" facility elements.[^25] PEER also requests
    that the Commission require the "amendment" of applications,
    licenses and certificates by section 214 applicants and holders
    (including those entities with blanket authorizations),[^26]
    spectrum applicants and licensees, and submarine cable applicants
    and licensees to "ensure they comply" with NEPA and the National
    Historic Preservation Act (NHPA).[^27]

5.  Second, PEER argues that the Commission's rules, which allow
    applicants and others to certify whether or not proposed activities
    (*e.g.,* the laying of domestic fiber optic line or the construction
    of a communications tower) may significantly affect the environment,
    result in industry self-regulation, and that this process does not
    ensure compliance with NEPA and NHPA.[^28] According to PEER, only
    an EA or EIS contains sufficient scientific evidence to support
    conclusions regarding whether the environment will be
    endangered,[^29] and in the absence of such documents "all FCC
    licenses may be invalid and without effect."[^30]

6.  Third, PEER argues that the Commission's environmental rules are
    obsolete because of the "explosive growth" in wireline and wireless
    infrastructure since enactment of the Telecommunications Act of
    1996, and that this changed circumstance requires the Commission to
    take a new look at cumulative impacts. [^31] PEER contends that the
    environmental impact of individual actions such as spectrum
    auctions, tower registrations, section 214 authorizations and
    submarine cable landing licenses may be minor but when aggregated
    across the nation constitutes a cumulative environmental effect that
    "places them outside the protection of NEPA categorical exclusions."
    [^32] PEER further requests that the Commission prepare a
    comprehensive EIS addressing the cumulative visual, aesthetic and
    environmental impacts of telecommunications networks on sensitive
    ecosystems like the Appalachian Trail and the nearshore coral reefs
    of the Caribbean, and in addition engage in site-specific EISs
    regarding the localized environmental effect of each individual
    tower and each nearshore coral reef breaching.[^33]

7.  Fourth, PEER contends that the Commission's categorical exclusion
    regime, whereby the Commission excludes from environmental
    processing facilities other than those that fall within categories
    enumerated in section 1.1307 of its rules, constitutes "de facto"
    non-compliance with NEPA.[^34] PEER argues that this approach allows
    the Commission to circumvent the definition of 'major federal
    action.'[^35]

8.  Fifth, PEER states that actions not requiring pre-construction
    authorization should be treated, for environmental review purposes,
    the same as those actions requiring pre-construction
    authorization.[^36]

9.  Finally, PEER urges the Commission to conduct a "joint-rulemaking"
    with the Environmental Protection Agency (EPA) and the Advisory
    Council on Historic Preservation (ACHP)[^37] to "ascertain whether
    the Commission's environmental rules are being lawfully applied" and
    to conduct an immediate, expedited rulemaking to determine whether
    the Commission needs an "Office of Environmental Compliance" to
    ensure the Commission undertakes systematic environmental review of
    its actions.[^38]

10. All of the wireless, wireline and submarine cable system operators
    that filed on the record in this matter oppose PEER's petition and
    request that the Commission deny it. They argue that the
    Commission's existing rules and procedures already ensure compliance
    with NEPA and NHPA.[^39] These parties also assert that PEER offers
    virtually no evidence or support for its proposals.[^40] Various
    individuals and environmental organizations, including ReefKeeper
    International and the Center for Marine Conservation (CMC), support
    the petition for rulemaking.[^41] ReefKeeper is concerned that the
    cumulative impact of submarine cables may not be insignificant, and
    CMC supports analysis of cumulative impacts and mitigation measures
    to reduce such impacts.[^42]

# DISCUSSION

11. We reject PEER's proposal that the Commission require applicants for
    all Commission actions involving submarine cables, fiber optic
    lines, and radio spectrum requiring use of communications towers to
    file EAs (for "public utility" facility elements) or to file EISs
    (for "public utility" facility elements). First, such action would
    run counter to NEPA and CEQ implementing regulations. As explained
    above, the statutory scheme that Congress established in NEPA, and
    that the CEQ implements, does not mandate EAs or EISs for all
    federal agency actions, but rather only for those major federal
    actions that [may]{.underline} or [will]{.underline} significantly
    affect the environment.[^43] As described above, CEQ regulations
    provide for a three-tiered approach to environmental analysis, which
    is intended to identify those activities and programs that may or
    will significantly affect the environment. The Commission has
    adopted this approach for environmental processing of applications
    for Commission authorizations and other actions by: (1) requiring
    Commission-prepared EISs for actions that will have a significant
    impact upon the environment; (2) requiring the preparation and
    submission of EAs for actions that may have a significant
    environmental effect; and (3) excluding certain actions
    categorically from environmental processing. As part of this
    mandated regime, the Commission has identified, in section 1.1307 of
    its rules, nine types of actions that may have a significant
    environmental effect and evaluates through an EA all actions that
    involve facilities that fit within one or more of these
    categories.[^44] In addition, these types of actions may be subject
    to further environmental processing under the Commission's EIS
    procedures.[^45] Adopting PEER's proposal would contravene CEQ's
    regulatory approach.

12. PEER also offers no rationale for treating [all]{.underline} actions
    as actually or potentially damaging to the environment. We do not
    believe that the evidence of environmental harm proffered by PEER
    reflects any environmental processing failings by the
    Commission.[^46] Indeed, even if PEER were to show such failings in
    the Commission's environmental processing, a few examples in no way
    justify the complete overhaul of the Commission's long-standing
    environmental rules across all service areas.[^47] In addition,
    PEER's more specific proposal to require the filing of EAs for
    "public" facility elements and EISs for "private" facility elements
    may similarly run afoul of CEQ regulations, which require federal
    agencies to consider the actual or potential environmental effects
    of an activity, not to require EAs or EISs based on the "private" or
    "public" nature of the facility. Here too, PEER fails to provide a
    rationale for distinguishing between public and private facilities
    as the basis for determining whether the facilities in question may
    or will have a significant environmental impact. Further, as some
    commenters note, PEER's proposal to require applicants to file an EA
    or an EIS, regardless of the likelihood of environmental harm, would
    impose unnecessary and substantial delays in preparation and
    processing of applications, as well as significant financial and
    administrative burdens on both applicants and the Commission.[^48]

13. Moreover, there is no sound environmental policy reason to adopt
    PEER's overly broad and inclusive regulations. The Commission has
    ample means available to address, as necessary, actions that are
    normally categorically excluded from environmental processing but
    which it or others may deem appropriate to question due to unusual
    circumstances. For instance, the Commission can act on its own
    motion to require an applicant to submit an environmental assessment
    where it determines that a particular action may cause environmental
    harm.[^49] Further, interested persons can allege that a particular
    action, otherwise categorically excluded, will have a significant
    environmental effect. In such case, a party may submit a written
    petition setting forth in detail the reasons justifying
    environmental consideration in the decision-making process regarding
    a specific application and the Commission can require an EA prior to
    disposition of the application.[^50] Additionally, in situations
    where the rules require an EA and the applicant certifies one is not
    necessary, enforcement action can be taken. For example, to the
    extent information comes to the Commission's attention after grant
    of an application suggesting the applicant intentionally incorrectly
    certified there would be no significant environmental effect, the
    Commission could impose a forfeiture for violation of section 1.17
    of the rules,[^51] or potentially revoke the license for
    misrepresentation. Similarly, if there is evidence of substantial
    environmental effect that would have caused the Commission not to
    grant the license had it known all the relevant facts, it
    potentially could revoke the license.[^52]

14. As to the NHPA, section 106 of the NHPA and the implementing rules
    of the ACHP require federal agencies to consider the effects of
    their "federal undertakings" on properties included or eligible for
    inclusion in the National Register of Historic Places.[^53] NHPA and
    ACHP require a consultation process with the appropriate State
    Historic Preservation Officer. [^54] Commission actions with respect
    to facilities that may affect districts, sites, buildings,
    structures or objects that are listed or eligible for listing in the
    National Register of Historic Places are among the types of actions
    that may significantly affect the environment and thus require the
    preparation of an EA by the applicant.[^55] Moreover, the
    Commission's rules contemplate consultation with appropriate State
    Historic Preservation Officers[^56] and incorporate NHPA
    requirements.[^57] Finally, PEER's proposal is at odds with the
    NHPA, which does not distinguish between the "private" and "public"
    nature of a facility that is a federal undertaking, but rather
    stresses the assessment of adverse effects.

15. For these reasons, we decline to adopt PEER's proposal to require
    applicants for all Commission actions with respect to submarine
    cables, fiber optic lines, and radio spectrum requiring use of
    communications towers to file an EA for "public" facility elements
    and an EIS for \"private" facility elements. For the same reasons,
    we also decline to adopt PEER's proposal to require amendment of all
    existing applications, licenses and certificates.

16. We also do not agree with PEER's contention that applicant-prepared
    submissions and certifications regarding the environmental impact of
    applications or endeavors do not ensure compliance with NEPA and
    NHPA. CEQ regulations and NHPA rules allow federal agencies to
    permit applicants to prepare EAs and related documentation.[^58] The
    Commission's rules require applicants to indicate whether a proposed
    facility may have a significant environmental impact, as defined by
    section 1.1307, and to prepare an EA if such possibility
    exists.[^59] The Commission independently reviews the EA as well as
    any additional information it may request from the applicant or
    other sources, and renders a determination whether to terminate or
    proceed with further environmental processing.[^60] As several
    commenters note, the Commission's approach is consistent with that
    of CEQ, an approach that has been upheld by the courts.[^61]
    Moreover, the Commission's regulations regarding the information to
    be set forth specifically require that the information be factual
    and sufficiently detailed.[^62] Applicants must respond
    truthfully[^63] and must update submissions with any new material
    information.[^64] And as noted above, enforcement action may be
    taken in appropriate cases.[^65] For these reasons, the Commission's
    reliance on an overall approach regarding applicant statements as to
    whether or not Commission grant of an application may have a
    significant environmental effect, as defined by section 1.1307, is
    consistent with NEPA and NHPA.[^66]

17. We also cannot concur with PEER's claims that spectrum auctions,
    tower registrations, section 214 authorizations, and submarine cable
    landing licenses have created harmful cumulative environmental
    impacts that warrant elimination of the Commission's categorical
    exclusions.[^67] First, while PEER makes general assertions that
    these actions will have a cumulative impact on environmental
    resources as a result of build-out and proliferation of facilities
    along the "entire information superhighway," it fails to describe
    this cumulative impact or provide concrete evidence of this
    cumulative effect. Second, the Commission's categorical exclusions
    comport with NEPA rules, which require federal agencies to use
    categorical exclusions, where appropriate, to reduce excessive
    paperwork and delay.[^68] CEQ's implementing regulations
    specifically direct the Commission and other federal agencies to
    categorize activities to eliminate the need for environmental
    processing of actions that are not likely to have a significant
    environmental impact either individually or cumulatively. In the
    absence of specific claims and factual support, and given CEQ's
    mandate for categorical exclusions, we find PEER's argument that an
    aggregated nationwide impact of all wireless and wireline
    facilities, including submarine cables, warrants elimination of the
    Commission's categorical exclusions unpersuasive.

18. PEER also suggests that the Commission's 1974 decision to
    categorically exclude submarine cables from environmental processing
    is dated given subsequent growth in the number of facilities and
    their potential cumulative impact on the environment following
    enactment of the Telecommunications Act of 1996.[^69] In 1974, the
    Commission determined that submarine cables, individually and
    cumulatively, do not have a significant effect on the
    environment.[^70] In a relatively recent order, the Commission
    revisited, and reaffirmed, this decision.[^71] PEER has not
    presented convincing evidence that the 1974 determination, as
    reaffirmed in 1999, is no longer valid following enactment of the
    Telecommunications Act of 1996.[^72] In the absence of such
    evidence, we must reject PEER's proposal to eliminate the
    categorical exclusion for submarine cables. PEER similarly fails to
    support its contention that the Commission should prepare a
    comprehensive EIS on cumulative visual, aesthetic and environmental
    impacts of telecommunications networks on the Appalachian Trail and
    the nearshore coral reefs of the Caribbean along with site-specific
    EISs on each local facility. PEER once again avers that such
    cumulative impacts have occurred, but fails to explain the nature of
    these effects, much less provide evidence of them. Such general
    assertions do not warrant the preparation of EISs as PEER has
    proposed.

19. We also do not accept PEER's argument that the Commission's
    environmental approach, which requires environmental processing for
    those types of communications facilities that the Commission's
    experience demonstrates may have significant environmental impact
    and exempts other categories of activity,[^73] constitutes "de
    facto" non-compliance with NEPA. As discussed above, under
    Commission and CEQ rules, an application for a facility of the type
    categorically excluded because it is unlikely to affect the
    environment nonetheless is subject to environmental processing if
    the Commission determines the particular facility may have a
    significant environmental impact.[^74] Additionally, the
    Commission's categorical exclusions comport with CEQ regulations,
    which encourage federal agencies to use categorical exclusions.[^75]
    Perhaps most significantly, Congress empowered the CEQ to review an
    agency's procedures for identifying classes of activities that can
    be categorically excluded from EA or EIS requirements.[^76] The
    Commission complied with the CEQ rules by consulting with the CEQ
    during development of the categorical exclusions and by obtaining
    proper CEQ review.[^77]

20. PEER also contends that actions not requiring pre-construction
    authorization should be treated the same as those actions requiring
    pre-construction authorization.[^78] Contrary to PEER's assertion,
    the Commission's rules require, in the case of radio facilities for
    which no Commission authorization is required prior to construction,
    that the licensee or applicant ascertain whether the proposed
    facility may have a significant environmental impact or is
    categorically excluded from environmental processing. If such a
    facility may have a significant environmental impact, the licensee
    or applicant must submit an EA to the Commission and may not
    initiate construction until the Commission has completed
    environmental processing.[^79] Similar rules apply to wireline
    facilities not requiring pre-construction authorization.[^80] To the
    extent such construction proceeds improperly, the licensee is
    subject to potential enforcement action for any unauthorized
    construction or operation, including, for example, a monetary
    forfeiture, a cease and desist order, or potentially license
    revocation. If there may be a significant environmental effect, to
    come into compliance with the law, the licensee must cease operation
    at the location and file an EA and undergo environmental processing
    by the relevant licensing bureau.[^81]

21. PEER proposes the creation of an "Office of Environmental
    Compliance." The Commission's current environmental rules provide
    for consistent agency-wide application of NEPA. The Commission's
    compliance with NEPA on an agency-wide basis has been successful
    under this approach. Nothing in PEER's petition persuades us that
    such an office is necessary to continue to ensure Commission
    compliance with NEPA. We will, however, take steps to make it easier
    to locate information regarding environmental issues on the
    Commission\'s web-site. Although the web-site currently has
    extensive information regarding environmental issues,[^82] it would
    be useful to provide a central location to guide interested parties
    to information on environmental issues before the Commission.
    Consequently, we intend to add a link on the Commission\'s home page
    that will direct users to the information on environmental issues
    and staff contacts if they have questions regarding those issues.

22. Finally, PEER asserts that ACHP and EPA must participate in a joint
    rulemaking with the Commission. PEER argues that ACHP must
    participate because ACHP is the federal agency with expertise to
    determine whether an EA under NEPA and a section 106 review under
    NHPA are identical.[^83] However, ACHP recently issued rules, which
    apply to the Commission, explicitly addressing how to use the NEPA
    EA process to fulfill NHPA section 106 review requirements.[^84]
    Further, it is the CEQ, not EPA, that Congress has designated to
    review and appraise federal programs for compliance with NEPA, and
    the Commission's rules both conform to the CEQ rules and were
    coordinated with CEQ to assure compliance with its
    requirements.[^85] Thus, even if we were to proceed with a
    rulemaking in response to PEER's petition, which is not the case
    here, PEER has not demonstrated a need for a joint rulemaking with
    other agencies.

23. In summary, we conclude that PEER's petition does not provide
    sufficient justification, as required by section 1.407 of the
    Commission's rules, to warrant the initiation of a rulemaking
    proceeding.

# conclusion

24. Accordingly, for the reasons stated above, PEER's request for
    rulemaking IS HEREBY DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas

Secretary

**SEPARATE STATEMENT OF**

# COMMISSIONER MICHAEL J. COPPS {#commissioner-michael-j.-copps .unnumbered}

*RE:* *Public Employees for Environmental Responsibility Request for
Amendment of the Commission's Environmental Rules Regarding NEPA and
NHPA, RM-9913 (released December 5, 2001)*

I agree with today's decision because PEER has not provided us with
sufficient record evidence to support the fundamental changes to the
Commission's environmental procedures that the Petition seeks.
Nonetheless, the PEER Petition and the record developed in this
proceeding raise many important questions about the Commission's process
of fulfilling our Congressionally mandated environmental
responsibilities, and, in addition, about how environmental concerns are
accounted for in public interest reviews.

While this proceeding did not provide adequate record evidence for a
restructuring of our policies at this time, the Commission should
undertake a thorough review of our obligations under the National
Environmental Policy Act (NEPA), and the National Historic Preservation
Act (NHPA), as well as our rules in this area. I support the Chairman's
recent initiation of a thorough review of Commission procedures. He is
working hard to improve our agency's performance. I respectfully suggest
that we specifically include an examination of our performance regarding
environmental regulations.

First, we should determine if we devote adequate resources to meeting
our environmental responsibilities under NEPA and NHPA. While Commission
staff work hard to do the job assigned to the agency, do we have enough
staff specifically dedicated to these responsibilities? Do we need staff
with more specific environmental expertise? We enjoy the advice of the
best communications engineers in the country, but do we need
environmental engineers as well? The practices of other federal
departments and agencies may provide us with a roadmap. We should study
how other government entities, such as the Departments of the Interior,
Agriculture, and Energy fulfil similar responsibilities so that we may
learn from their experiences.

The Commission should also examine how accessible our proceedings are to
non-traditional stakeholders. The communications industry and bar know
how to participate in an effective and timely manner in our proceedings.
I question whether this is the case for local homeowners or small
businesses concerned with the environmental impact of our actions on
their communities, or even for the most sophisticated environmental
groups where Americans come together to voice their concerns with the
government. These people may not even know when we are considering
applications that they consider critically important, or what types of
information are needed to support their positions. The Commission should
determine whether this is the case, and should take actions to make our
proceedings more accessible and transparent if our findings support such
action.

[^1]: In Re the Telecommunications Industry's Environmental Civil
    Violations in U.S. Territorial Water (South Florida and the Virgin
    Islands), and in the Coastal Wetlands of Maine: FCC Accountability
    and Responsibility for Environmental Transgressions, and Petition
    for Rulemaking Regarding the NEPA, NHPA, and Part 1, Subpart I of
    the Commission's Rules, Petition for Rulemaking, RM-9913 (filed May
    17, 2000) (Petition for Rulemaking). PEER is a non-profit
    organization incorporated under the laws of the District of Columbia
    whose members include current and former federal and state employees
    of land and ecosystem management, wildlife protection, and pollution
    control agencies with an interest in protecting the nation\'s
    environmental concerns. *Id.* at 1; Reply of Public Employees for
    Environmental Responsibility (PEER), RM-9913 (filed Sept. 5, 2000)
    (Reply Comments), at 3.

[^2]: 42 U.S.C. §§ 4321-4335, or, the National Environmental Policy Act
    of 1969, as amended. NEPA is the basic national charter for
    protection of the environment. It was enacted to require federal
    agencies to consider environmental factors in making agency
    decisions.

[^3]: "All agencies of the Federal Government shall...identify and
    develop methods and procedures, in consultation with the Council on
    Environmental Quality..., which will insure that presently
    unquantified environmental amenities and values may be given
    appropriate consideration in decisionmaking along with economic and
    technical considerations...." 42 U.S.C. § 4332(2)(B).

[^4]: 42 U.S.C. § 4344(3) ("It shall be the duty and function of the
    Council to review and appraise the various programs and activities
    of the Federal Government in the light of the policy set forth in
    title I of this Act for the purpose of determining the extent to
    which such programs and activities are contributing to the
    achievement of such policy, and to make recommendations to the
    President with respect thereto").

[^5]: 40 C.F.R. §§ 1500.1-1517.7.

[^6]: 40 C.F.R. § 1500.1(a).

[^7]: 40 C.F.R. § 1500.3.

[^8]: 40 C.F.R. § 1507.1 ("All agencies of the Federal Government shall
    comply with these regulations. It is the intent of these regulations
    to allow each agency flexibility in adapting its implementing
    procedures authorized by § 1507.3 to the requirements of other
    applicable laws").

[^9]: *See* 40 C.F.R. § 1507.3.

[^10]: Under NEPA and CEQ's implementing regulations, an environmental
    impact statement is a detailed statement by the responsible federal
    official on: (1) the environmental impact of the proposed action;
    (2) any adverse environmental effects that cannot be avoided should
    the proposal be implemented; (3) alternatives to the proposed
    action; (4) the relationship between local short-term uses of the
    environment and maintenance and enhancement of long-term
    productivity; and (5) any irreversible and irretrievable commitments
    of resources involved in the proposed action if implemented. 42
    U.S.C. § 4332, 40 C.F.R. § 1508.11.

[^11]: 40 C.F.R. § 1507.3(b)(2)(i) (agency procedures shall identify
    those typical classes of action that normally require environmental
    impact statements). CEQ's implementing regulations define "major
    federal action" as an action that may have significant effects and
    is potentially subject to federal control and responsibility. 40
    C.F.R. § 1508.18. In determining whether there is a major federal
    action, the significance of an action must be analyzed in several
    contexts such as society as a whole, the affected region, and the
    locality, 40 C.F.R. § 1508.27(a), and for the severity of impact, 40
    C.F.R. § 1508.27(b).

[^12]: Pursuant to CEQ regulations, an environmental assessment is a
    document that discusses the need for a proposed action,
    alternatives, and environmental impacts of the proposed action and
    alternatives, lists the agencies and persons consulted, and serves
    to provide evidence and analysis for determining whether to prepare
    an environmental impact statement or a finding of no significant
    impact. 40 C.F.R. § 1508.9.

[^13]: 40 C.F.R. § 1507.3(b)(2)(iii) (agency procedures shall identify
    those typical classes of action that normally require environmental
    assessments but not necessarily environmental impact statements).

[^14]: 40 C.F.R. § 1506.5(b).

[^15]: 40 C.F.R. § 1507.3(b)(2)(ii) (agency procedures shall identify
    those typical classes of action that normally do not require either
    an environmental impact statement or an environmental assessment,
    *i.e.,* categorical exclusions). *See also* 40 C.F.R. § 1508.4
    (definition of "categorical exclusion"); 40 C.F.R. §§ 1500.4(p) and
    1500.5(k) (federal agencies shall reduce excessive paperwork and
    delay by using categorical exclusions to define categories of
    actions that do not individually or cumulatively have a significant
    effect on the human environment).

[^16]: 40 C.F.R. § 1508.4.

[^17]: 47 C.F.R. § 1.1305. The Commission has reviewed representative
    actions and has found no common problems that would enable it to
    specify actions that automatically will require EISs. *Id.*

[^18]: 47 C.F.R. § 1.1307(a)-(b).

[^19]: 47 C.F.R. § 1.1306.

[^20]: 47 C.F.R. § 1.1307(c)-(d).

[^21]: Section 1.1307(a) provides that Commission action with respect to
    the following types of facilities may significantly affect the
    environment: (1) facilities that are to be located in an officially
    designated wilderness area; (2) facilities that are to be located in
    an officially designated wildlife preserve; (3) facilities that may
    affect listed threatened or endangered species or designated
    critical habitats, or are likely to jeopardize the continued
    existence of any proposed endangered or threatened species or likely
    to result in the destruction or adverse modification of proposed
    critical habitats, as determined by the Secretary of the Interior;
    (4) facilities that may affect districts, sites, buildings,
    structures or objects that are listed, or are eligible for listing,
    in the national Register of Historic Places; (5) facilities that may
    affect Indian religious sites; (6) facilities to be located in a
    flood plain; (7) facilities whose construction will involve
    significant change in surface features, such as wetland fill,
    deforestation or water diversion; and (8) antenna towers and/or
    supporting structures that are to be equipped with high intensity
    white lights which are to be located in residential neighborhoods,
    as defined by applicable zoning law. In addition, section 1.1307(b)
    provides that Commission actions granting construction permits,
    licenses to transmit including renewals of licenses to transmit,
    equipment authorization or modification in existing facilities
    require the preparation of an EA if the facility, operation or
    transmitter would cause human exposure to levels of radio frequency
    radiation in excess of the limits in 47 C.F.R. §§ 1.1310 and 2.1093.
    47 C.F.R. §§ 1.1307(a)-(b), 1.1310, 2.1093.

[^22]: 47 C.F.R. §§ 1.1307(a)-(b), 1.1308, 1.1311.

[^23]: *See* 47 C.F.R. §§ 1.1308(a) and 1.1311(a); 40 C.F.R. §
    1506.5(b).

[^24]: 47 C.F.R. §§ 1.1308(c), 1.1314-1.1319.

[^25]: *See* Petition for Rulemaking at 6. PEER proposes that the
    Commission adopt the following definitions: a "private utility"
    would be any facility element of a networked system required to
    store, supply or generate the commodity moved over the network or
    used to transmit such commodities over long distances, whereas a
    "public utility" would be any facility that is essential to the
    distribution of the commodity to the individual customer -- the
    "last mile." Petition for Rulemaking at 7.

[^26]: Section 214 of the Communications Act of 1934, as amended, 47
    U.S.C. § 214, involves new lines and the extension of lines for
    carriage of domestic interstate and international services. The
    applicable Commission rules for section 214 services, including the
    rules for blanket authorization of domestic interstate services, are
    set out in 47 C.F.R. Part 63. *See also* section 402(b)(2) of the
    Telecommunications Act of 1996, 47 C.F.R. § 214 nt.

[^27]: Petition for Rulemaking at 6*.* NHPA requires a federal agency to
    take into account, when licensing any "undertaking," the effect of
    the undertaking on any district, site, building, structure, or
    object included in or eligible for inclusion in the National
    Register of Historic Places. 16 U.S.C. § 470f.

[^28]: Petition for Rulemaking at 4-6.

[^29]: *Id*. at 5.

[^30]: *Id.*, Summary at 3.

[^31]: Comments of Public Employees for Environmental Responsibility
    (PEER), RM 9913 (filed Aug. 14, 2000) (Comments), at 19; Reply
    Comments at 10. *See also* Letter from Alexander Stone, Director,
    ReefKeeper International, to Magalie Roman Salas, Secretary, Federal
    Communications Commission (filed Sept. 1, 2000) (ReefKeeper Letter),
    at 1 ("as permit requests proliferate, the need to develop rules for
    adequate characterization and review of environmental impacts,
    including cumulative impacts, is acute").

[^32]: Reply Comments at 15.

[^33]: Reply Comments at 22.

[^34]: Reply Comments at 15-16.

[^35]: *Id*.

[^36]: Comments at ii.

[^37]: The ACHP is an independent federal agency, created by the NHPA,
    to advise federal agencies and other entities about historic
    preservation issues. *See* 16 U.S.C. §§ 470i, 470j.

[^38]: Petition for Rulemaking, Summary at 2.

[^39]: Comments of Tycom Networks (US) Inc., RM-9913 (filed Aug. 15,
    2000) (Tycom Comments), at 1, 3, 7; Opposition of Global Crossing
    Ltd., RM-9913 (filed Aug. 14, 2000), at 4-8; Opposition of Verizon
    Wireless, RM-9913 (filed Aug. 14, 2000) (Verizon Opposition), at 1,
    6-7; and WorldCom Inc. Comments, RM-9913 (filed Aug. 14, 2000)
    (WorldCom Comments), at 3.

[^40]: Verizon Opposition at 3; Response of AT&T Corp., RM-9913 (filed
    Aug. 14, 2000) (AT&T Response), at 4.

[^41]: Those filing letters, comments or reply comments in favor of
    PEER's petition are: Center for Marine Conservation; PEER;
    ReefKeeper International; The Reef Ball Foundation; Dr. Rob Wilder;
    and Robin K. Craig.

[^42]: ReefKeeper Letter at 2 ("even if the damage caused by one or two
    cables is somehow considered 'insignificant,' the cumulative impact
    of many fiber optic cables installed in the southeast Florida area
    may not be 'insignificant'"); Letter from Kaitilin Gaffney, Center
    for Marine Conservation, to the Federal Communications Commission,
    RM-9913 (filed Aug. 25, 2000).

[^43]: 40 C.F.R. §§ 1501.4(a)-(b) (a federal agency shall determine
    whether a proposal normally requires an environmental impact
    statement or normally is categorically excluded and, if neither is
    applicable, the agency shall prepare an environmental assessment);
    1507.3(b)(2)(i) (agency shall identify typical classes of action
    requiring environmental impact statements); 1507.3(b)(2)(ii) (agency
    shall identify typical classes of action not requiring either an
    environmental impact statement or an environmental assessment);
    1507.3(b)(2)(iii) (agency shall identify typical classes of action
    requiring environmental assessments but not necessarily
    environmental impact statements).

[^44]: 47 C.F.R. §§ 1.1307(a)-(b), 1.1308, 1.1311.

[^45]: 47 C.F.R. §§ 1.1308(c), 1.1314-1.1319.

[^46]: PEER points to two communications projects constructed in 1996 --
    one in the U.S.Virgin Islands and one in the State of Maine -- to
    support its contention that "damage has already been incurred due to
    the Commission's actions...." Petition for Rulemaking at Summary at
    3. These projects apparently violated state permits, law or
    regulation and were subject, or potentially subject, to state
    enforcement action. *See* Exhibit 2, "Notice of Violation, Order for
    Remedial Action, Notice of Assessment of Civil Penalty, and Notice
    of Opportunity for Hearing" issued by the U.S.V.I. Department of
    Planning and Natural Resources regarding a 1996 bentonite mud spill
    on the north shore of the U.S.V.I. caused during fiber optic cable
    drilling; *see also* Exhibit 3, "Administrative Consent Agreement
    and Enforcement Order" issued by State of Maine Department of
    Environmental Protection in wake of the construction of a fiber
    optic line. With respect to these examples, we agree with commenters
    that the incidents do not demonstrate insufficient processing or
    review at the application stages, but rather show failure to comply
    with state regulatory requirements that more appropriately is
    addressed through state enforcement mechanisms. *See, e.g.,* AT&T
    Response, at 7; WorldCom Comments at 3. PEER makes similar claims
    about the possibility of environmental harm from future
    communications projects in Florida. PEER Petition for Rulemaking at
    3-4, Summary at 3. *See also* Exhibit 4 (letters from ReefKeeper
    International to the Florida Department of Environmental Protection
    urging development of a policy to address cable landings regionally
    rather than on a site-by-site basis); Comments, Exhibits A and B
    (literature on possible effects of dredge and fill projects on
    coastal habitat and fisheries production); Reply Comments, Exhibits
    I-IV (newspaper clipping on street cuts due to utility work, and
    documents associated with U.S.V.I. proceeding alleging illegal
    construction of a breakwater by a communications company). PEER
    fails, however, to provide evidence that the referenced activities
    occurred, or will occur, because of a failing in the Commission's
    environmental processing.

[^47]: As one commenter states, "\[g\]iven all of the applications filed
    and processed by the Commission each year, the fact that PEER could
    only cite to three \... examples of alleged environmental harm
    constitutes evidence that the Commission's rules are in fact working
    \.... " Verizon Opposition at 4.

[^48]: *See, e.g.,* Verizon Opposition at 5.

[^49]: 47 C.F.R. § 1.1307(d).

[^50]: 47 C.F.R. § 1.1307(c).

[^51]: *See, e.g.,* 47 C.F.R. § 1.17 (prohibiting intentional
    misrepresentation); U.S.C. 47 § 503(b).

[^52]: *See, e.g.,* 47 U.S.C. § 312(a)(1), (a)(2). *See also* Verizon
    Opposition at 7; Comments of SBC Communications Inc., RM-9913 (filed
    Aug. 14, 2000), at 3.

[^53]: 16 U.S.C. § 470f, 36 C.F.R. §§ 800.3(a), 800.8(b) (agencies must
    determine whether a federal action is an "undertaking" and whether
    it is the type of activity that has the potential to cause effects
    on historic properties).

[^54]: *See, e.g.,* 36 C.F.R. § 800.2(c)(1).

[^55]: 47 C.F.R. § 1.1307(a)(4).

[^56]: 47 C.F.R. § 1.1307(a)(4) and Note; *see also* Letter from John M.
    Fowler, Executive Director, Advisory Council on Historic
    Preservation, to Federal Communications Commission, State Historic
    Preservation Officers, and Tribal Historic Preservation Officers
    (Sept. 21, 2000) (ACHP Letter), available at http:
    //www.fcc.gov/wtb/siting/nepa106.pdf (applicants, licensees, tower
    construction companies, and their authorized representatives may
    consult with SHPOs and THPOs to initiate section 106 review process,
    identify and evaluate historic properties, and assess effects).

[^57]: Indeed, pursuant to ACHP regulations, the Commission staff
    recently entered into a Programmatic Agreement with ACHP concerning
    the collocation of wireless antennas that is designed to accommodate
    the requirements of the NHPA and the Communications Act. *See
    Wireless Telecommunications Bureau Announces Execution of
    Programmatic Agreement With Respect to Collocating Wireless Antennas
    on Existing Structures*, Public Notice, DA 01-691 (WTB, rel. Mar.
    16, 2001).

[^58]: 40 C.F.R. § 1506.5, 36 C.F.R. § 800.2(a)(3); *see also* ACHP
    Letter.

[^59]: 47 C.F.R. §§ 1.1307(a)-(b), 1.1308(a), 1.1311(a). *See also,
    e.g.,* 47 C.F.R. § 1.923(e) (each applicant in the wireless
    telecommunications service is required to indicate at the time its
    application is filed whether or not Commission grant of the
    application may have a significant environmental effect, as defined
    in section 1.1307 of the rules, and, for affirmative answers, is
    required to file with the Commission an environmental assessment
    that the Commission must review before the applicant can construct).

[^60]: *Amendment of Environmental Rules in Response to New Regulations
    Issued by the Council on Environmental Quality,* Report and Order,
    60 Rad. Reg (P&F) 13 (1986) (1986 Order), para. 5; *see also* 47
    C.F.R. § 1.1308.

[^61]: AT&T Response at 3; Tycom Comments at 9 (citing *Friends of the
    Earth v. Hintz*, 800 F.2d. 822, 834-35 (9^th^ Cir. 1986); 40 C.F.R.
    § 1506.5(b).

[^62]: 47 C.F.R. § 1.1311(b).

[^63]: 47 C.F.R. § 1.17.

[^64]: 47 C.F.R. § 1.65.

[^65]: *See* para. 13, *supra.* In addition to the examples mentioned
    there, a monetary forfeiture also could be imposed if an applicant
    had failed to update its application as required.

[^66]: Moreover, as noted, in all cases the Commission reserves the
    right to require an applicant to submit an EA, either in response to
    a public petition or on its own motion. 47 C.F.R. § 1.1307(c)-(d).

[^67]: Reply Comments at 10, Comments at 19. Section 1.1306 of the
    Commission's rules specifically provides categorical exclusions for:
    (1) the mounting of antennas on existing buildings and towers
    (unless the mounting would affect an historic district or exceed
    radio frequency radiation limits); (2) the installation of aerial or
    underground wire or cable over existing corridors of permitted use;
    (3) the construction of new submarine cable systems; and (4) the
    construction of an antenna tower in an established antenna farm
    (unless the construction would exceed radio frequency radiation
    limits). 47 C.F.R. § 1.1306. Section 1.1306(a) generally deems
    Commission actions not covered by section 1.1307(a) and (b) as
    individually and cumulatively having no significant effect on the
    quality of the environment and excludes them from environmental
    processing under normal circumstances. 47 C.F.R. § 1.1306(a).

[^68]: *See, e.g.,* 40 C.F.R. §§ 1507.3(b), 1500.4(p), 1500.5(k).

[^69]: Comments at 18-19, Reply Comments at ii, 10, 24.

[^70]: *Implementation of the National Environmental Policy Act of
    1966,* Report and Order, Docket 19555, 49 FCC 2d 1313 (1974), at
    para. 17.

[^71]: *See 1998 Biennial Regulatory Review -- Review of International
    Common Carrier Regulations,* Report and Order, IB Docket No. 98-118,
    14 FCC Rcd 4909 (1999) (1999 Order), at para. 69 (amending Note 1 to
    Section 1.1306 to reflect the categorical exclusion from
    environmental processing of the construction of new submarine cable
    systems).

[^72]: *See also* "Final Market Value Analysis for a Fiber Optic Cable
    Permit in National Marine Sanctuaries," Final Report, National Ocean
    Service, National Marine Sanctuaries Program, at
    [www.sanctuaries.nos.noaa.gov/news/newsbboard/newsbboard.html](http://www.sanctuaries.nos.noaa.gov/news/newsbboard/newsbboard.html)
    (Dec. 2000), stating that "the installation of undersea fiber optic
    cables is believed to have relatively limited impacts."

[^73]: 47 C.F.R. §§ 1.1307(a)-(b), 1.1306(a).

[^74]: 47 C.F.R. § 1.1307(c)-(d); *see also* 40 C.F.R. § 1508.4 (any
    procedure adopting categorical exclusions shall provide for
    extraordinary circumstances in which a normally excluded action may
    have a significant environmental effect).

[^75]: *See, e.g.,* 40 C.F.R. §§ 1507.3(b), 1500.4(p), 1500.5(k).

[^76]: *See* 40 C.F.R. § 1507.3(a) ("Each agency shall consult with the
    Council while developing its procedures \.... The procedures shall
    be adopted only after an opportunity for public review and after
    review by the Council for conformity with the Act and these
    regulations").

[^77]: *See 1986 Order, supra* n. **61**. This order, in which the
    Commission adopted its categorical exclusions, makes it clear that
    the "new rules have been coordinated with CEQ to assure compliance
    with their regulations." *Id.* at 14, para. 3.

[^78]: Comments at ii.

[^79]: 47 C.F.R. § 1.1312 (environmental processing procedures for
    facilities that do not require a pre-construction license). These
    rules apply in the case of both site-specific licenses and
    geographic or blanket licenses. Thus, a geographic license holder
    must obtain specific Commission approval of sites within its
    licensing area that require environmental review.

[^80]: 47 C.F.R. § 63.01(b) (requiring domestic common carriers
    constructing new lines to comply with the environmental rules).

[^81]: *See, e.g.,* 47 C.F.R. § 1.1312(d).

[^82]: *See e.g.*
    [www.fcc.gov/wtb/siting](http://www.fcc.gov/wtb/siting).

[^83]: Petition for Rulemaking at 11.

[^84]: *See generally* 36 C.F.R. § 800.8 (2000).

[^85]: *See1986 Order* at 14; *See also 1999 Order,* 14 FCC Rcd 4909, at
    para. 68.