Conservationists call for freeze on tower registrations

Conservationists called for a freeze on all tower registrations and re-registrations until the Federal Communications Commission complies with environmental statutes at issue in a court ruling earlier this year, likely signaling no let-up in a long-running feud over how to protect migratory birds from collisions with tall communications structures.
The controversy, dating back to 2002, involves FCC licensing of 6,000 towers in the Gulf Coast. The American Bird Conservancy and the Forest Conservation Council argued the towers were illegally licensed because federal regulators failed to first assess potential implications for migratory birds under the National Environmental Policy Act, the Endangered Species Act and the Migratory Bird Treaty Act.
The U.S. Court of Appeals for the District of Columbia Circuit – in a 2-1 ruling on Feb. 19 – said the FCC “failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA and to provide meaningful notice of pending tower applications.”
In March, the FCC began a new rulemaking in response to the D.C. Circuit’s order.
Cellular industry association CTIA, wireless infrastructure association PCIA, the National Association of Tower Erectors and the National Association of Broadcasters petitioned the FCC last month for an expedited rulemaking on issues raised in the court ruling. The four organizations, dubbed the Infrastructure Coalition, are seeking procedural changes for registering towers and addressing protests to tower applications on environmental grounds.
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.”
The American Bird Conservancy, the Defenders of Wildlife and the National Audubon Society do not embrace industry’s approach, saying they plan soon to petition the FCC for an expedited rulemaking that will be broader in scope than the Infrastructure Coalition’s filing.
“The FCC should establish rules on required findings and conclusions under NEPA to be consistent with the CEQ [the President’s Council of Environmental Quality] guidance. These rules should provide that the FCC cannot delegate its decision-making obligations on environmental impacts to the applicant. The FCC must evaluate the application itself and determine whether the activity fits within the categorical exclusion and then whether it meets the standard for extraordinary circumstances such that it requires environmental analysis notwithstanding the categorical exclusion.”
NEPA generally permits federal agencies to ‘categorically exclude’ small specific projects from extensive environmental review.
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. Industry disputes that assertion in part because the figure is not supported by multiple peer-reviewed scientific studies.
Conservationists point to studies showing avian mortality could be reduced drastically 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 other measures.
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.