FCC URGED NOT TO ACT ON BIRD DEATHS AT TOWERS PENDING STUDIES
The FCC shouldn’t take further regulatory actions to address migratory bird deaths at communications towers until additional scientific research is conducted, many industry representatives said in comments filed with the Commission. However, environmental groups said the FCC already had received extensive information on that subject but had continued to violate federal environmental laws for years under its current system of authorizing, licensing, approving and registering communications towers. The comments were filed in response to the Notice of Inquiry (NOI) the Commission issued earlier this year (CD Aug 21 p5), after FCC Chmn. Powell in May outlined an agency effort for a more “pro-active approach” to environmental and historic preservation issues on tower siting.
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“There has been very little past scientifically sound and valid research to examine tower types and corresponding impacts on avian mortality,” PCIA said. For example, it said, environmental groups have long contended that guy wires contribute significantly to avian mortality without providing scientific research to back up the claim. PCIA Pres. Jay Kitchen said it was “premature” for the FCC to consider changes in regulations on communications towers because “decisions should be based on quantifiable scientific research,” which wasn’t available. He said govt.-funded avian mortality research was “necessary and would provide the Commission with its best opportunity to make its decision based on accurate, fair and reliable data. Industry almost never makes decisions based on anecdotal information and we don’t believe that government should either.”
The FCC’s tower regulations shouldn’t be revised based on migratory bird casualties because communications towers aren’t a significant cause of avian mortality, CTIA and NAB said in a joint comment. They said that even if the “highest-end and wholly unsubstantiated” estimates of bird fatalities caused by towers were correct at 5 million per year, communications towers would represent only 0.005% of the human-caused incidents. They said a review of the scientific literature found that 97 million-970 million birds were killed annually in building window impacts, 57 million by collisions with cars and trucks and 174 million by power transmission lines. PCIA agreed, saying that its members that had been in business for 5 to 22 years, “had not experienced any significant bird kills at their towers and if they did experience any kills, they were generally single isolated incidents.”
CTIA and NAB also argued that: (1) The National Environmental Policy Act (NEPA) didn’t apply to communications tower siting and design decisions because they weren’t “major federal actions significantly affecting the quality of the human environment.” (2) The “fragmentary” and “inconclusive” information available wouldn’t satisfy the legal standards for a change in regulations: “Neither NEPA nor any other law requires the Commission to go beyond its current approach. On the contrary, the FCC lacks legal authority over most aspects of avian mortality.”
The American Petroleum Institute (API) urged the Commission “not to lose sight… of the need to ensure that [those] who rely on communications towers for the provision of vital communications services are not unduly hampered in their ability to continue providing those services.” API members own or lease space on telecom towers to operate licensed and unlicensed private radio systems used by petroleum and natural gas companies. Citing a Kerlinger report in 2000 for the U.S. Fish & Wildlife Service (USFWS), API said there should be a standard for comparing towers, such as the number of birds killed per night, and standardized methods for searching around towers to determine how many birds had been killed in a particular period. Effects of tower height and lighting are other important areas on which additional research is needed, API said.
AT&T Wireless said it was “critically important” that the additional towers necessary to develop, strengthen and secure the U.S. wireless network were “constructed as rapidly as possible, free from the delay that can be caused by unnecessary or ill-advised regulation.” AT&T said the Commission should review the available scientific literature to confirm that cellular wireless telecom towers, typically those less than 300 ft., didn’t pose significant danger to migratory birds and “on that basis continue their categorical exclusion from environmental processing under the Commission’s environmental rules.”
The FCC should develop a memorandum of understanding (MOU) with the USFWS to define and clarify the relationship and respective responsibilities of the 2 agencies on bird protection, AT&T Wireless said. It said the MOU should: (1) Clarify the responsibilities and authority of applicants and licensees under federal laws designed to protect birds and provide guidance to the wireless industry on compliance with those laws. (2) Develop guidelines with the FAA and industry on tower lighting schemes. (3) Confirm that the USFWS interim guidelines were strictly voluntary.
However, Friends of the Earth, the Forest Conservation Council and the American Bird Conservancy urged the Commission to act “immediately” to comply with NEPA, the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). They said the Commission had received “extensive information” that communications towers were a “significant and continuing” source of bird mortality but had “refused to alter” its tower regulation, approval, licensing and regulatory programs to better protect migratory birds: “Instead, [the FCC] is conducting a NOI [Notice of Inquiry] that requests information the FCC already possesses and that proposes no changes and, thus, maintains the status quo.”