ENVIRONMENTAL GROUPS MOUNT NEW TOWER CHALLENGES AT FCC

FCC had ruled earlier this year that Friends of the Earth and Forest Conservation Council lacked standing to object to 29 proposed antenna structures, prompting petition for reconsideration by those groups that still is pending. Groups since Jan. also have filed new petitions that stress harmful impact on migratory birds and include affidavits from bird researchers and residents who live near proposed and existing towers. Several sources said latest petition filed Aug. 26, notable for number of towers it encompassed, appeared to expand stage for eventual court challenge against FCC by groups on environmental issues involving siting of structures, particularly effect on bird flight paths. Groups said that until FCC prepared environmental impact assessment on its antenna structure registration program in Gulf Coast area, “we are requesting suspension of all future antenna structure registrations in the Gulf Coast region that may adversely affect migratory birds.”

Petition for NEPA compliance sought order mandating preparation of environmental assessments for 5,797 antenna structures in Gulf Coast region covering Ala., Fla., Ga., La., Miss., Tex. that it said were “harmful to migratory birds.” It charged that each structure was constructed in way that was inconsistent with U.S. Fish & Wildlife Service guidelines for mitigating effects of towers on migratory birds. Petition contended FCC “unlawfully” had registered each of towers without environmental assessments on impact on migratory birds as required by NEPA and other federal environmental laws. It also highlighted 96 towers for which environmental assessments were prepared, saying they didn’t adequately analyze direct or cumulative impacts on migratory birds. Groups urged FCC to put “public participation procedures” in place for future tower registrations “harmful to migratory birds in the Gulf Coast region” by providing notice of pending registration decisions at Commission and seeking comments. Still pending before FCC is application by FoE and Forest Conservation Council challenging Jan. order by deputy chief of FCC Commercial Wireless Div. that dismissed 29 objections and petitions to deny on tower siting proposals. FoE and Forest Council contended in petition for reconsideration that FCC hadn’t resolved issues they had raised earlier. Commission said groups lacked standing to file petitions challenging proposed antenna structures, concluding they had failed to demonstrate direct link between alleged harm and proposed towers because information was missing such as letters from nearby residents.

In latest petition, groups described Gulf Coast region as 100-mile area stretching from Port Isabel, Tex., to Tampa Bay contained “recognized critical stopover points” for migratory birds. They cited research that they said showed towers were “significant source of mortality for neotropical migratory birds,” leading to blind collisions and disrupting navigation. Petition challenged FCC’s regulations to implement NEPA. It said FCC had deemed most antenna structure registrations it granted individually and cumulatively had no significant impact on environmental quality and should be excluded categorically from environmental processing. Groups argued that FCC had failed to address migratory bird impact in reaching that conclusion and instead examined only issues related to radiation exposure. Petition said FCC acted in “arbitrary and capricious manner” by failing to examine impact of towers on migratory birds. Only 0.01% of towers constructed in Gulf Coast area escaped categorical exclusion and triggered environmental review because they met one of 8 FCC criteria, including location in wildlife preserves or flood plains. Petition said FCC had violated part of Endangered Species Act (ESA) by “failing to consult” with U.S. Fish & Wildlife Service on impact of antenna structure registration decisions on species listed under ESA.

It would be “incomprehensible” if latest petition were dismissed for lack of standing, said Gerald Winegrad, vp- policy of American Bird Conservancy. “We meticulously went beyond even the strictest federal court standards” for standing, he said. Winegrad said declarations were submitted as part of petitions by members of his group who resided in affected areas, owned property there or conducted ornithological research there. He said U.S. Dist. Court, D.C., had ruled earlier this year that in live fire training by military on Pacific island of Farallon de Medinilla, Defense Dept. exercises were killing and harming migratory species without permit, as required by Migratory Bird Treaty Act. That ruling was seen as establishing private right to sue and seek injunctive relief for alleged violations of MBTA under Administrative Procedure Act. Before that decision, courts generally had ruled that MBTA was criminal statute, but D.C. ruling that private parties could sue to enforce MBTA provisions has been seen by some in wireless industry as potentially giving legal leverage to environmental groups fighting wireless tower sitings. Winegrad said groups that were plaintiffs in that case established that one of their members was active birder, which court concluded was enough to provide standing to demonstrate adverse impact of military tests. In case of FCC filing, Winegrad said connection was “even stronger” because declarations include those from area residents. “To resolve this problem, we are forced by the inaction of the FCC and the industry into this litigation mode,” he said, because group “rarely” involved itself in litigation. “We are going to pursue this to the very bitter end until the system is reformed.”

“I'm disappointed that it looks like the petitioners want to divert such a large volume of resources into administrative litigation that maybe better be employed in better trying to solve the problem,” said Washington attorney John Clark, who has represented tower companies in siting litigation.

One industry source said latest petition still didn’t go into details such as effects of individual towers on bird populations. “In that regard, it’s similar to what they did before,” source said, citing earlier petitions dismissed for lack of standing: “The groups risk another standing rebuke. They certainly have set themselves up for an argument on that point.”