A divided appeals court struck down a Federal Communications Commission’s decision in which the agency rejected the contention it illegally licensed 6,000 towers in the Gulf Coast by failing to first assess the potential impact on migratory birds.
“We vacate the order because the commission failed to apply the proper NEPA [National Environmental Policy Act] standard, to provide a reasoned explanation on consultation under the ESA [Endangered Species Act], and to provide meaningful notice of pending tower applications,” stated the U.S. Court of Appeal for the District of Columbia Circuit.
The ruling was particularly critical of the regulatory process employed by the FCC in casting aside conservationists’ arguments for protecting migratory birds. House Commerce Committee Democrats are investigating how the GOP-led agency, chaired by Kevin Martin, conducts its business.
“The Catch-22 for the interested parties who wish to file such a petition is that the commission provides public notice of individual tower applications only after approving them,” the ruling stated.
Circuit Judge Brett Kavanaugh, part of the three-judge panel that heard the case, disagreed, arguing he would have dismissed the lawsuit as premature because the FCC – in a separate, broader rulemaking – is re-examining environmental issues related to migratory birds and towers nationwide.
“In today’s decision the court has put the FCC on notice that its antenna structure registration procedures need to be revamped but gave the FCC considerable latitude as to how this is to be achieved,” said William Sill, a partner at Wilkinson Barker and Knauer L.L.P. and an expert in tower regulatory issues.
The tower industry said it continues to seek a cost-effective solution to curb migratory bird nighttime collisions with communications structures in the Gulf Coast region.
“We continue to work with other industry stakeholders, and with environmental groups, as part of the Stopping Avian Tower Interaction Committee in an attempt to negotiate balanced solutions to tower lighting issues,” stated wireless infrastructure association PCIA. “We oppose measures which require expensive, time-consuming retro-fitting of lighting schemes on existing towers, especially to the extent that such measures conflict in any way with FAA and state/local regulations. Our members are in favor of ensuring that our participation in STATIC leads to common-sense measures that promote wireless deployment as well as sensitivity to avian migration patterns.”
The court held oral argument Sept. 11 on the lawsuit, brought by the American Bird Conservancy and the Forest Conservation Council.
“American Bird Conservancy is very pleased by today’s ruling which will require the FCC to assess the environmental impacts of towers,” said Darin Schroeder, executive director of ABC advocacy. “Given the large number of bird deaths caused by towers, an environmental review is long overdue. The ruling will also require FCC to better protect endangered species by consulting with wildlife experts before final construction decisions are made, as well as require greater public involvement in the decisions to build towers, a process that has been very secretive in the past.”
Bird death estimates
The Fish and Wildlife Service estimates between 5 million and 50 million birds are killed each year in collisions and other accidents caused by communications towers. The wireless industry disputes that assertion in part because the figure is not supported by multiple peer-reviewed scientific studies.
“The court has clearly directed the FCC to respect national environmental laws when handing out permits for these towers,” said Earthjustice attorney Steve Roady. “The FCC now must go back and carefully evaluate the environmental impacts of these towers.”
There are about 200,000 cell sites in the United States, with tower companies operating about 115,000 sites and operators controlling 85,000 sites.
Conservationists say migratory bird collisions with towers are particularly acute along the Gulf Coast where thousands of communications towers are sited along 1,000-mile stretch of coastline between Texas and Florida.
They explain that various species of migratory song birds, exhausted from their journey across the Gulf of Mexico, crash into tower structures or the accompanying guy wires. Sometimes, conservationists add, birds confuse the blinking lights atop the cellphone towers with the night stars they rely on to navigate their journey, causing them to become disoriented and begin circling the tower until they drop from exhaustion and fall to the ground.
The Federal Aviation Administration, which is attempting to act as an arbitrator of sorts in the controversy, is investigating tower lighting options to better protect migratory birds. The FCC is seriously considering a requirement that communications towers use medium intensity white strobe lights instead of than red lights to reduce bird collisions.
“The decision should be a wake-up call to this agency. It is time to stop acting as if a problem will go away if we just keep kicking it down the road,” said Michael Copps, a Democratic FCC member.
