Another shoe has
dropped in the commission’s plan to balance the need for tall towers versus the
safety of migratory birds.
More than 30
companies, comprised of tower owners and clients, are challenging the FCC’s
decision not to provide a safe harbor from its new tower rules for structures 350-foot
or below, saying the commission’s rejection of the safe harbor burdens small
businesses and does not take into account the current harsh economic climate.
Further, argue the
tower companies in a petition for reconsideration filed by law firm Blooston,
Mordkofsky, Dickens, Duffy & Prendergast, LLP, legislation is pending in
Congress to require the commission to assess the economic impact of its
proposed rules and identify any market failure, consumer harm or regulatory
barrier to investment before adopting any economically significant rules.
“It is well
established that antenna towers overall have a negligible impact on avian
mortality, when viewed in the context of all avian mortality,” according to the
companies, which includeBrinks,
Consolidated Edison of New York, and several telephone companies like West
Texas Rural Telephone Cooperative, The Ponderosa Telephone Co. and Dumont
Telephone Company. “Despite these showings, the commission erroneously
concluded that it had no authority to adopt a safe harbor, even on an interim
basis,” they wrote.
We’ve reported the FCC awaits approval of the Office of
Management and Budget before its new rules affecting tall towers go into
At heart of the
issue is the disagreement which has festered for years between
environmentalists and broadcasters over whether tall towers kill migratory
generally have said there’s no proof that towers kill migratory birds, while
environmentalists disagree, saying towers, lights and guy wires pose a deadly
When the agency
issued its new rules in
December, it said evidence in the record suggests the likely impact of towers
on migratory birds increases with tower height. In general, towers over 450
feet in height will face more scrutiny, including the need to conduct an
environmental assessment and allowing the public time to comment on where a new
tower would be sited before construction, such as publishing a newspaper notice
or by going through a local zoning public notice process. An environmental
notice is also required if an applicant changes the lighting of an existing
tower “to a less preferred” style.
The local newspaper
notice the FCC required those who want to build a tall tower in advance of
construction won’t be as effective as in the past, note the companies, because
of reductions in newspaper circulation, loss of advertisers and bankruptcies.
The benefits of local notice publication do not outweigh the burden on small
businesses, they argue.
Oppositions to this
petition must be filed within 15 days of Federal Register publication and
replies within 10 days after that.