WASHINGTON—The Federal Communications Commission today launched a rulemaking to determine whether rules are necessary to reduce the number of migratory bird collisions with cell-phone towers and other telecom antenna structures, setting the stage for a pitched battle between environmentalists and the tower industry.
The FCC in recent years has wrestled with the question of what extent communications towers—with particular focus on height, location, lighting and other aspects of tall structures—might be contributing to migratory bird deaths. This latest commission action is designed to build on the existing public record and to seek public comment on specific legal and scientific issues.
The agency wants feedback on its legal authority to adopt regulations on migratory bird collisions with towers, with federal telecom regulators tentatively concluding the National Environmental Policy Act may provide legal justification for new guidelines to safeguard migratory birds.
Commissioner Jonathan Adelstein, one of the two Democrats on the GOP-led FCC, said that legal issue should not be left ambiguous.
“I, for one, am confident in our legal authority under the NEPA and the Communications Act to take action, if appropriate, and do not think our conclusion on this issue should be a tentative one,” said Adelstein. “I took a similarly firm position on the legal effect of the National Historic Preservation Act in our consideration of the Nationwide Programmatic Agreement—a determination that was recently upheld in the U.S. Court of Appeals for the D.C. Circuit.”
The FCC also solicited comment on its responsibilities under the Migratory Bird Treaty Act and on whether that law gives any government agency other than the Department of the Interior authority to enforce its terms.
Scientific data is another major focus of the FCC rulemaking, with the commission asking whether existing scientific evidence is sufficient to demonstrate that communications towers are having a significant impact on migratory birds. The FCC is also inquiring whether to revise rules to require tower applicants to prepare an environmental assessment if a proposed tower or antenna facility may affect migratory birds.
Michael Copps, the other Democratic FCC member, accused the agency of dragging its feet on the issue.
“There is simply no question that bird-tower collisions are a serious problem,” Copps said. “The U.S. Fish and Wildlife Service tells us that millions of birds, perhaps as many as 50 million, die each year through such accidents. That is a sobering conclusion coming from the federal agency with the greatest scientific expertise when it comes to wildlife conservation and primary responsibility for protecting migratory birds. The situation imposes a grave responsibility on this agency, too, because of our important jurisdiction over tower painting and illumination—a responsibility to make sure that our rules and practices do not contribute to a needless toll of bird deaths.”
The tower industry is less certain a serious problem actually exists.
“We have to wait and see what the item actually looks like, but we appreciate the commission’s efforts to take a balanced approach recognizing that there are uncertainties surrounding the issue,” said spokesperson at PCIA, a trade group that represents tower companies and owners.
Earlier this year, when the FCC denied a 2002 request from the American Bird Conservancy and the Forest Conservation Council to study whether wireless towers contribute to the death of migratory birds, PCIA was more blunt about where it believes the scientific evidence points.
“There is no clear evidence that telecommunications towers pose a real threat to migratory birds. It is reassuring that the FCC refused to act on the basis of an inconclusive record,” said PCIA President Michael Fitch in April.
