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Broad Agreement on Tower Rules Unlikely between Industry, Environmental Groups

Talks continue between industry and environmental groups on towers and bird deaths, but comments filed by both camps at the FCC this week show broad disagreement. Industry groups told the FCC no evidence exists that should lead the agency to impose more requirements on tower operators. Environmental organizations countered with a letter urging the FCC to act immediately to make towers safer for birds.

The working group hearing from sides has another meeting set for May 2, plus one with the FCC on a pending tower “conspicuity” study, sources said Tues. In Jan., industry and environmental groups jointly asked the FCC to extend filing deadlines so they could keep negotiating(CD Jan 9 p3). This time around the parties made filings but didn’t ask for more time.

“While the parties may find some mutually agreeable steps that can advance these issues, there is simply no substantial evidence currently in the record to support any change in FCC policy,” the industry coalition said: “Most of the avian mortality studies produced to date are anecdotal rather than empirical, peer-reviewed studies. Although there has been some limited progress with respect to studies of select towers in Michigan, the FCC must continue its efforts to gather broad-based, peer-reviewed scientific evidence on avian mortality at communications towers.” The industry letter was signed by CTIA, NAB, the National Assn. of Tower Erectors, PCIA, the Wireless Communications Assn. and the Assn. for Maximum Service TV.

The industry groups also warned the FCC that imposing new regulations would be “contrary” to U.S. law. “In order to impose regulation here, the National Environmental Policy Act requires that tower siting be a ‘major’ federal action -- which it is not -- and that such action must have ’significant’ environmental impact -- which the facts cannot support,” the group said: “In light of the lack of NEPA authority to act, the Migratory Bird Treaty Act and the Endangered Species Act cannot prop up a new FCC environmental regulatory regime.” More towers are going up, but the data suggest fewer birds are dying, the industry groups said: “As a result, it is a poor time for the FCC to consider changing the status quo absent further research which produces clear and compelling evidence that a new policy approach is needed.”

The American Bird Conservancy, Center for Sustainable Economy, National Audubon, the Humane Society and Friends of the Earth told the FCC it has lagged too long in imposing new rules.

“The FCC has carried on this pattern of delay and avoidance for far too long, beginning in 1999, continuing with the FCC’s August 2003 Notice of Inquiry, and now with this Notice of Proposed Rulemaking that proposes no new rules,” the groups wrote. “The NOI of August 2003 raised nearly identical issues that the FCC is again requesting comments on in this NPRM. During this nine-year period of delay, significant numbers of migratory birds were killed annually by collisions with communication towers and related structure.”

The environmental groups urged the FCC to propose new rules soon after the comment period on the current rulemaking ends May 23. “Given the FCC history of failing to act to resolve this issue, we must again express grave concerns that since the NPRM has no proposed rules and no time limits for the FCC to act, the FCC NPRM could proceed indefinitely, thus providing another convenient excuse to continue the FCC’s years of delays in addressing the killing of millions of migratory birds at towers,” the letter said.