ENVIRONMENTAL GROUPS TAKE FCC TOWER FIGHT TO D.C. CIRCUIT

Groups told court they had sought similar changes in FCC rules directly from Commission but hadn’t seen relief. Earlier this year, they asked agency to require environmental assessments under National Environmental Policy Act (NEPA) for 5,797 antenna structures on Gulf Coast that they said were harming migratory birds. Broadcast, public safety and wireless towers challenged by 3 groups cover coastal region that spans 6 states. PCIA said Fri. that new court challenge was “procedurally inaccurate, poorly timed and unsubstantiated.”

Lawsuit asked D.C. Circuit to direct FCC to: (1) Comply with NEPA by issuing program environmental impact statement on impact of towers registered by FCC on migratory birds and by revamping “categorical exclusion” policy so that “citizens can participate in the NEPA process.” (2) Comply with Endangered Species Act (ESA) by consulting with U.S. Fish & Wildlife Service on adverse impacts of tower registration decisions on species covered by ESA. (3) Comply with Migratory Bird Treaty Act (MBTA) by “taking action to minimize avian mortality caused by registered communications towers.” Case is being watched closely by wireless industry because last year, U.S. Dist. Court, D.C., ruled that in live fire training by military on Pacific island of Farallon de Medinilla, Defense Dept. exercises were killing and harming migratory birds without permit, as required by MBTA. That ruling was seen by some as establishing private right to sue for alleged violations of MBTA under Administrative Procedure Act. Before that ruling, courts generally viewed MBTA as criminal statute.

In filing at D.C. Circuit, groups said they had “made strenuous efforts at the administrative level to compel the FCC to comply with its statutory duties under NEPA, the ESA and the MBTA. The agency has simply ignored the petitioners’ grievances.” Further efforts to pursue regulatory challenges at agency “would be an exercise in futility,” filing said. Lawsuit said “cumulative impact” of tens of thousands of planned and existing towers could kill as many as 4-5 million birds every year. In some limited cases, FCC asks applicants for antenna registrations to prepare environmental assessment, groups said. However, they said, virtually all towers are categorically excluded from having to make such assessments. White House Council on Environmental Quality’s NEPA regulations allow federal agencies to write rules exempting some actions from such NEPA analysis, filing said. But groups said such categorical exclusions were only for actions that didn’t individually or collectively have “significant effect” on environment. FCC tower registration decisions have significant effects on both counts, groups argued.

“In light of the extensive information available to the FCC indicating that communication towers are a significant and continuing source of mortality to migratory birds, the agency’s refusal to take even the first steps to address this serious problem is inexcusable,” filing said. FCC spokeswoman said agency had policy of not commenting on pending litigation.

“Today’s lawsuit is the first step in a broader campaign to reform the haphazard and illegal way the FCC and the communications industry do business and to bring the public into the decision-making process,” Forest Conservation Council Conservation Dir. John Talberth said. Friends of the Earth Exec. Dir. Norman Dean said that for years, his group had “pressed numerous requests for the FCC to end this slaughter, but instead the agency has authorized thousands of new towers that have killed millions of birds.”

PCIA criticized extent to which groups were mounting challenge at D.C. Circuit before exhausting administrative appeals at agency. For example, FCC hasn’t yet acted on groups’ challenge to Gulf Coast towers last year. PCIA said petition “suggests that a governmental agency’s actions compromise the integrity of our nation’s wireless communications systems during a national security crisis.” Petition is “shortsighted, irresponsible and dangerous,” PCIA said, because of impact it would have on infrastructure used by public safety providers and others. It also called statistics on avian mortality cited by groups outdated and lacking scientific basis. “A better understanding of all risks relative to migratory birds is necessary,” PCIA said. “Such studies should examine all causes of avian mortality, including the effect that tall, lighted structures such as buildings, bridges, smokestacks and power lines have on migrating birds.” Research should be govt.-funded and handled by neutral 3rd party, PCIA said.