Commun(icat)ing with Nature: The FCC and Federal Environmental Regulations

Abstract

All agencies and departments within the U.S. Government are required to comply with a variety of federal statutes that seek to limit environmental damage. Most prevalent is the National Environmental Policy Act (NEPA), which requires an environmental assessment process for all major federal actions. The Federal Communications Commission (FCC) is required to comply with NEPA and related statutes during the licensing and construction of communications towers. While the FCC is required to abide by these federal environmental statutes, it also operates under a mandate to maintain a robust and functioning national telecommunications network. The FCC has created its own internal regulations to administer its compliance with NEPA and related statutes, but the tradition of agency discretion in administrative law allows the FCC to dictate that compliance in terms of its primary mission. Hence, the FCC can decide whether the public interest would be best served by tower construction or by environmental protection, and that decision is typically dictated by the agency’s primary mission of enabling telecommunications. The death of millions of birds at communications towers is one major environmental problem that the FCC is required to ameliorate, per NEPA and other federal environmental statutes. However, the agency faces contradictory requirements from the 1934 Communications Act and the 1996 Telecommunications Act which force it to pay less heed to environmental protection. The FCC’s record of environmental compliance is not necessarily the result of spite toward the natural world, but of conflicting statutory mandates and unresolved difficulties in American administrative jurisprudence.