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The FCC is proposing new rules to prevent migratory birds from flying into communication towers. The U.S. Fish and Wildlife Services estimates that between 4 million and 50 million birds deaths in the United States each year are tower related.

The evidence

In 2003, the commission issued an inquiry designed to develop a factual record about the cause of migratory bird deaths. The inquiry sought information on factors, such as lighting, tower height, antenna structure, weather, location and migration paths. In addition to numerous comments from environmental groups and others, the commission hired an environmental consulting firm to evaluate existing research. The facts gathered in this proceeding led to a series of tentative conclusions, which are included in the rule making.

With respect to its legal authority to issue rules in this area, the commission tentatively concluded that the National Environmental Policy Act provides a basis for the commission to take action to protect migratory birds if communication towers are found to be a hazard.

New lighting

The commission has tentatively concluded that red obstruction lights should be replaced by medium-intensity white strobe lights to the maximum extent possible without compromising safety. The evidence indicates that such lighting creates better visibility for birds, particularly in bad weather when visibility is poor and birds are flying at lower altitudes. The proposed rules would only affect new or modified towers.

The FCC is seeking information on additional remedies. This includes evaluating tower height and location and the use of guy wires. For example, the co-location of new antennas on existing towers minimizes the impact of communication towers on migratory birds. The commission wants to know whether the use of white strobe lights alone will eliminate the need for additional remedies proposed by environmental groups.

The commission has proceeded cautiously in dealing with the protection of migratory birds. The evidence of harm is largely based on guesswork. Nevertheless, environmental and bird groups have pressured the FCC to take action. The rule making, issued more than three years after the original inquiry, does not suggest aggressive action be taken to protect migratory birds. Requiring white strobe lights only on modified or new tower facilities is not a significant change. Moreover, the fact the commission has solicited another round of comments could mean that a decision on protecting migratory birds is a long way off.

In other FCC news:Fines assessed in historic review cases

The FCC has fined two communications companies (one $11,000, the other $5600) that conducted their historic impact studies after their towers had been constructed.

Under procedures that became effective in 2005, most new tower projects are subject to the National Programmatic Agreement (NPA), a compact between the FCC, the Advisory Council for Historic Preservation, and state and tribal historic preservation agencies. The purpose of NPA, which has been incorporated by reference into the FCC's rules, is to minimize the impact of tower construction on local historic sites.

When filing FCC Form 301, applicants must certify that they have conducted the extensive studies required by NPA or that the proposal is exempt (due to, for example, a co-location of facilities). As indicated recently, the FCC will fine certifiers that have not abided by the new procedures.

Harry C. Martin is the past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC.

Dateline

Feb. 1 is the deadline for renewal applications for TV, Class A, LPTV and translator stations in New Jersey and New York. TV stations and nonexempt Class A and LPTV translator stations also must file EEO program reports (Form 396) with their renewals.

Feb. 1 is the date TV stations (but not Class A, LPTV or translators) in the following states must file their biennial ownership reports: Arkansas, Louisiana, Mississippi, New Jersey, New York.

Send questions and comments to:harry.martin@penton.com