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
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
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.
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
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 firstname.lastname@example.org.