FCC to revisit tower lighting after conservation legal win

The Federal Communications Commission is revisiting the controversial licensing of thousands of towers in the Gulf Coast in the aftermath of a successful legal challenge by conservation groups concerned about the safety of migratory birds. But there is little initial indication that a federal appeals court ruling will bring closure to the long-running dispute anytime soon.
In February, the U.S. Court of Appeals for the District of Columbia Circuit – in a 2-1 decision – struck down an FCC decision in which the agency rebuffed the contention that it illegally licensed 6,000 towers in the Gulf Coast by failing to first assess whether there would be any environmental impacts on migratory birds.
The court’s majority said it overturned the FCC action because the agency did not apply the proper National Environmental Policy Act standard and failed to provide a reasoned explanation on consultation under the Endangered Species Act. The D.C. Circuit also concluded the FCC neglected to give meaningful notice of pending tower applications. At the same time, the court seemed to leave some wiggle room for the FCC in the matter.
The FCC earlier this month opened a new rulemaking in response to the D.C. Circuit’s decision.
Cellphone, tower and broadcast sectors appear to favor procedural changes for registering towers and addressing protests to tower applications on environmental grounds. Conservationists, on the other hand, seem to want to leverage the court ruling to extract major policy changes from the FCC.
Cellular industry trade association CTIA, wireless infrastructure association PCIA, the National Association of Tower Erectors and the National Association of Broadcasters have petitioned the FCC for an expedited rulemaking on issues raised in the court ruling.
The groups urged the FCC to tentatively conclude that rules “should be revised to incorporate a notice, comment and approval process for antenna structure registration applications modeled after the process for transfer and assignment applications” and “should be revised to clarify that any objection on environmental grounds filed against an [antenna structure registration] application must be filed as a petition to deny.”
The trade groups said such changes should address the court’s concerns and “ensure opportunities for meaningful public involvement in the tower application process. The proposed rules will also facilitate processing of [antenna structure registration] applications in an efficient and predictable manner so that dependable communications networks can continue to be deployed to support the nation’s growing wireless, broadcast and public-safety needs.”
Conservation and environmental groups are unlikely to be satisfied with revisions to regulatory procedures. They want big change from the FCC.
“We request that the commission act promptly to reduce the level of avian mortality caused by its communications towers registration program,” Earthjustice, on behalf of the American Bird Conservancy and the Forest Conservation Council, told the FCC in late March.
The problem is the wireless industry and conservationists have very different views about the level of the threat posed to migratory birds by communications towers.
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.
Conservationists and environmentalists nevertheless urge the FCC to take action in accordance with recommendations in recent peer-reviewed studies, including those conducted in Michigan by researchers Joelle Gehring and Paul Kerlinger. They said the studies showed avian mortality could be substantially reduced by requiring new towers to be outfitted with pulsing white or red lights (rather than steady burning red lights); requiring red lights on existing towers to be retrofitted with pulsing lights; restricting the use of guy wires; and prohibiting towers from being located in sensitive areas such as those adjacent to refuges, parks and other areas of concentrated bird breeding or migration such as sanctuaries.
The industry is not keen on costly and time-consuming retrofitting or change-out options, particularly any which conflict with Federal Aviation Administration, state or local regulations.
Conservationists say migratory bird collisions with towers are particularly acute along the Gulf Coast, where thousands of communications towers are sited along the 1,000-mile stretch of coastline between Texas and Florida.
The FAA, attempting to find middle ground in the debate, is supposedly investigating tower lighting options to better protect migratory birds. The FCC, meantime, is considering a requirement that communications towers use medium-intensity white-strobe lights instead of than red lights to reduce bird collisions.