FCC invites comments on birders’ proposals regarding tower approvals
If you think you might be needing to build a tower in the next several years, listen up. The birding lobby has opened a new offensive in its long-running effort to force the FCC to give greater consideration to bird-related concerns when it authorizes tower construction.
Recently, the Commission invited comments on the following proposals advanced by the birders:
- Amend the Commission’s environmental regulations so that exclusions from those rules are available only for FCC actions that have no significant environmental effects individually or cumulatively;
- Prepare a programmatic environmental impact statement addressing the environmental consequences of the Antenna Structure Registration (ASR) program on migratory birds, their habitats, and the environment;
- Promulgate rules to clarify the roles, responsibilities and obligations of the Commission, applicants, and non-federal representatives in complying with the Endanger Species Act (ESA); and
- Consult with the U.S. Fish and Wildlife Service on the ASR program regarding all effects of towers and antenna structures on endangered and threatened species; and
- Complete the proposed rulemaking in the Migratory Birds Proceeding to adopt measures to reduce migratory bird deaths in compliance with the MBTA.
Oh, and did we mention that all of these proposals are supposed to be implemented on an expedited basis?
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.