FCC examines tower impact on birds

Nov 1, 2003 12:00 PM, By Harry Martin

Broadcasters may soon have to concern themselves with the effects their towers may be having on wildfowl.

As part of a broad government effort to establish environmental benchmarks, the FCC has opened an official inquiry into the �Effects of Communication Towers on Migratory Birds.� The Commission says it is particularly interested in data detailing the causes of collisions involving migrating fowl and on practices that could prevent such mishaps. In addition, presumably in connection with this inquiry, the FCC has entered in an agreement with the State of Michigan and the U.S. Fish and Wildlife Service to facilitate an Avian Collision Study at selected towers used by Michigan in its public safety communications system.

The Commission has received evidence that more than 350 species of neotropical songbirds are vulnerable to collisions with communications towers. These migrators seem especially prone to fly into lit towers when visibility is low due to fog, rain or low clouds. The danger is greatest in the fall when birds fly south from their nesting grounds in North America en route to their winter homes in Latin America.

The Fish and Wildlife Service has already formed a Communications Tower Working Group involving governmental and private sector experts to develop and evaluate this and other research. The FCC inquiry supplements this broader government effort, allowing all sectors of the communications industry to offer insights. The Commission announced that during November and December, respectively, it would accept comments and replies in the inquiry proceeding.

The FCC’s fledgling inquiry about migratory birds could lead to protocols for best practices and, eventually, new FCC rules on tower siting, construction and operations. Such rules, in turn, could lead to the filing of objections to particular tower proposals based on claims that the proposed tower might constitute a hazard to birds. The Commission has previously rejected such arguments when they were raised against particular applications. But in so doing, the Commission suggested that the complainants’ concerns might be more appropriately raised in a rule making proceeding, rather than in petitions directed against individual applications. The time for such a rule making has apparently arrived.

In releasing its inquiry, the Commission suggested that it is acting on its own motion, presumably out of concern for the welfare of birds. The Commission does not mention that it has, for several years, been under significant pressure from a number of conservation-related organizations seeking FCC action to protect the avian population. Nor does the Commission mention that, as recently as April of this year, it was required by a Federal appeals court to respond to complaints about administrative foot-dragging in precisely this area. While the court concluded in July that the Commission had not delayed unreasonably up to that point, it is entirely possible that the new inquiry is being undertaken in partial response to the continuing prodding by conservation groups.

Whatever its motivation, the Commission has started a process that may lead to new rules. While the process will be lengthy and, before a notice of proposed rulemaking is issued, will involve the submission of convincing evidence of a real threat to the bird population by radio towers, the current proceeding bears watching. Broadcasters already face almost insurmountable hurdles in terms of FAA and local government approvals when they seek to build new towers of significant height. Adding a new layer to the regulatory mix � and one that will provide another effective means to block new tower construction � will further complicate the tower construction process.

Dateline

Dec. 1, 2003, is the deadline for filing biennial ownership reports for stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont.

Dec. 1 also is the deadline for stations in those states to place their annual EEO reports in their public files and post them on their websites.

Radio stations in Alabama and Georgia must file their renewal applications on Dec. 1. Renewals are due for stations in Arkansas, Louisiana and Mississippi on Feb. 1, 2004.

Martin is an attorney with Fletcher, Heald & Hildreth, PLC., Arlington, VA. E-mail[email protected].