WASHINGTON—The Federal Communications Commission said Wednesday it was denying and dismissing a petition filed in 2002 by the American Bird Conservancy and the Forest Conservation Council that could have delayed building wireless facilities along the Gulf Coast while the requested environmental reviews were completed.
The FCC was under pressure to act on the ABC/FCC petition because the environmental groups last week had urged a federal appeals court to compel the commission to act. To get three votes though, FCC Chairman Kevin Martin was forced to agree to issue a notice in the near future of proposed rulemaking on the impact of towers on migratory birds.
“While I do not embrace this action, I am willing to vote in favor of it because of the agreement to my request to consider an NPRM in the larger proceeding addressing the important issue of the potential effects of communication towers on migratory birds,” said FCC Commissioner Jonathan Adelstein.
The commission said ABC/FCC did not justify their request for the agency to conduct an environmental impact statement and to require an environmental assessment to be done on nearly 6,000 existing structures focusing on the effect of communications towers on migratory birds.
Adelstein said that ABC/FCC spotlight on the Gulf Coast area, which is now recovering from Hurricane Katrina, was one reason he agreed to dismiss the petition.
“While I am sympathetic to a number of issues raised in the petition before us, the petition just is not the right vehicle for these overarching concerns. This is particularly true when you consider the rebuilding efforts that will be so critical to the Gulf Coast area over the next several months, particularly with a new hurricane season rapidly approaching. Rebuilding the communications infrastructure in the areas that were hit so badly by last season’s hurricanes is priority one, especially when you consider the critical role of communications in our disaster relief efforts,” said Adelstein.
Martin did not issue a statement and since the item was pulled from Wednesday’s agenda, few details were released.
FCC Commissioner Michael Copps said he supported part of the decision, but criticized the agency for not being able to balance its environmental and communications-promoting responsibilities.
“We are not faced with an all-or-nothing proposition. I am confident that the FCC, with some sustained effort and commitment, can manage the expansion of communications towers while also preserving the country’s environmental resources for future generations. Evidence suggests, for example, that something as simple as tower lighting changes might significantly reduce bird mortality,” said Copps. “This action says less about the impact of communications towers on migratory birds than it does about past commission failure to do its job.”
The FCC last week told the U.S. Court of Appeals for the District of Columbia Circuit that it would act and urged the D.C. Circuit to not issue a “writ of mandamus.”
The ABC/FCC petition goes back to 2002 when the groups charged that the commission had improperly licensed 6,000 towers because the impact to migratory birds was not considered.
The towers in question are all located in the Gulf Coast region, a swath of land 100-miles wide from Texas to Florida. This area is the first land mass that migratory birds hit after crossing the Gulf of Mexico from Central and South America, said the groups.
The environmentalists are upset because when the FCC designed rules to comply with the National Environmental Policy Act, it did not include migratory bird impacts as an issue that would trigger an environmental assessment. Since the towers are “categorically excluded” from the NEPA process, the towers are approved the day they are received.
The FCC under former chairman Michael Powell tried to solve the problem by agreeing to study the issue and working with the Federal Aviation Administration and the U.S. Fish & Wildlife Service, but the groups want the law changed and the FCC has not acted to do so.
The D.C. Circuit has previously rejected ABC/FCC’s argument that an environmental assessment is required before more towers can be placed in the path of migratory birds.
