CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

The continuously operating radar device is attached on or near the tower (or whatever other air traffic obstacle you want to warn planes away from) and constantly monitors a series of pre-established “warning zones”. If an aircraft enters the first warning zone, the system turns on the tower lights to provide a visual warning to the pilot. If, despite the lights, the apparently errant aircraft advances toward the tower and enters the second warning zone, the VHF radio transmits an audio warning on all aviation transceiver channels alerting the flight crew to take immediate action to avoid a collision. Because of the very modest signal strength of the transmissions – the signal would need extend over only the second warning zone, a relatively modest area – it is very unlikely that any aircraft outside of the danger zone would receive any false alarms.

This system – on paper, at least – screams “user-friendly”. From the operational standpoint, the software governing each individual OCAS® unit can be adjusted to account for unusual terrain at a particular site. Plus, because the tower lights are activated only when an aircraft flies uncomfortably near the tower, use of OCAS® would both save on power costs and extend the life of tower light bulbs. As an added bonus, OCAS could take charge of the required tower monitoring chore and send daily status reports to the tower owner. 

And Mother Nature should be pleased as well:  the fact that the towers no longer would be constantly illuminated should decrease the incidence of fatal bird/tower collisions, since such collisions have been blamed on the disorienting effects on birds of constantly-lit towers.

Overall, with the exploding demand for tall structures – e.g., communications towers, obviously, but also power-generating wind turbines – the OCAS system may be an idea whose time has come. Check back here for updates – we’ll let you know if and when the FCC requests comments on this petition.

Those proposals were set out in a “Petition for Expedited Ruling and Other Relief” filed by a number of prominent national organizations – the American Bird Conservancy, Defenders of Wildlife, the National Audubon Society – which have been flapping their wings at the FCC for years. They argue that communications towers are responsible for millions of bird deaths each year, and that that constitutes an environmental impact triggering the National Environmental Policy Act (NEPA) and the ESA.

The FCC, which already has a lot on its plate what with spectrum management and all, has historically been less than enthusiastic about taking on the additional responsibility for full-tilt environmental protection as well. But the birders have been insistent, and last year they managed to convince the federal appeals court in D.C. that the FCC should be required to “provide notice of pending tower applications that will ensure meaningful public involvement in implementing NEPA procedures.” The Commission hasn’t done much to follow up on that little chore – and, as a result, the birders have swooped in again to keep the pressure up.

In their latest petition the birders repeat the assertion which they have made previously – that communications towers account for as many as 50,000,000 bird kills each year. That’s a lot of birds, for sure – but, as it turns out, the 50,000,000 figure is only an estimate, and a high side estimate at that. (Compare it to other estimates of avian adversaries advanced by the bird lobby: “vehicular strikes” – 60,000,000-80,000,000; power line collisions – “hundreds of millions”; and seemingly the biggest killer of all, building windows – 97,000,000-980,000,000.)

(With respect to the raw 50,000,000 number, our colleague Ron Whitworth observed as follows in our March, 2007, Memo to Clients: “Presumably most birds that suffer fatal collisions with towers can be expected to die in relatively close proximity to the tower they whack. If that’s correct, then their remains should be easy to find by anyone walking in the vicinity of the tower. That is, unlike elephants and their mythic elephant burial grounds (i.e., secret places where elephants supposedly toddle off to die – as reliably depicted in the 1934 classic, Tarzan and his Mate), dead birds should be readily findable. And when you’re talking about 50,000,000 birds per year, it just can’t be that hard to document at least some of them. Do the math. Let’s say that there are about 100,000 registered towers out there. (Actually, there are about 92,000, but we’ll be generous.) That means that, on average, every year each tower supposedly kills 500 birds. So on average, each and every tower owner should be finding about 10 dead birds around each and every tower every week, all year long.”)

In any event, whatever the actual level of risk may be, the push for increased FCC sensitivity to the impact of towers on birds (and vice versa) is obviously not going away. The Commission has invited comment on the birders’ latest petition. Comments are due May 29; replies are due June 15. At this point it’s impossible to predict what’s likely to happen. But the birders have unquestionably enjoyed some success in the courts, and they don’t appear to be going away anytime soon. Their proposals, if fully adopted and implemented, could slow new tower construction to a crawl – so if you expect to be building a new tower subject to the FCC’s antenna registration process in the foreseeable future, you may want to get involved now.