CTIA, NAB and PCIA planned to file an intervenor brief late Wed.,...

year, the American Bird Conservancy, Forest Conservation Council and Friends of the Earth asked the court to direct the FCC to prevent the building of new towers until it completed a program-wide environmental impact statement on its tower licensing decisions in the Gulf Coast area. The groups also sought a halt in new tower approvals until the Commission implemented requirements for bird protection measures and initiated certain public participation procedures. The groups cited alleged FCC violations of the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). They charged that towers killed 4-5 million birds annually. CTIA Gen. Counsel Michael Altschul said: “While we dispute the scientific basis for these figures, they mean nothing without some context. A recent University of Wisconsin study found that domestic cats kill between 7.8 and 219 million birds annually just in rural Wisconsin.” The Forest Conservation Council and other groups had petitioned the FCC earlier this year to require environmental assessments under NEPA for 5,797 antenna structures on the Gulf Coast that they said were harming migratory birds. The broadcast, public safety and wireless towers challenged by the groups cover a coastal region that spans 6 states. The NAB, PCIA and CTIA intervenor brief wasn’t available at press time. But CTIA said its filing noted “tower siting decisions are the result of purely private actions, with no federal funding, and minimal oversight, control or participation by the FCC.” CTIA said that when a tower was sited, there was no federal action that fell under the purview of the ESA, which controlled an “agency action;” the MBTA, which oversaw the conduct of hunters or poachers; or NEPA, which regulated a “major federal action.” CTIA said that when a tower was sited, there was no federal action for those statutes to regulate. It also said those laws don’t apply to tower builders, “as they are neither government agencies nor hunters.” The FCC, in a response brief filed late Wed., said because the Commission hadn’t “unreasonably delayed” acting on the 2 migratory bird matters that the groups said were still pending, they aren’t entitled to the extraordinary relief of mandamus to compel agency action. The FCC asked that the court turn down the petition for mandamus. The D.C. Circuit directed the FCC March 31 to respond to the mandamus petition and discuss the factors in a 1984 ruling, Telecommunications Research & Action Center v. FCC, for determining whether an agency’s action had been delayed unreasonably. The Commission told the court that the groups had participated in meetings held by the Fish & Wildlife Service Communications Tower Working Group, which was formed to develop research on the impact that towers might have on birds. They have participated in other proceedings pending before the FCC, the Commission said. In the matters cited in the court challenge, however, the FCC hasn’t acted, or failed to act, in a way that would warrant mandamus, the agency said. In the case of the Gulf Coast petition, which was filed in Aug. 2002, and a Jan. 2002 order by the Wireless Bureau, neither has “been pending for as long as even 18 months,” the FCC said. “That does not constitute an unreasonable delay, especially when, as here, the agency faces no statutory deadline.” The FCC also said the extent of the claimed injury to migratory birds raised in the petition was “speculative and the FCC has more substantial and pressing priorities that require immediate attention.”