[Federal Register: September 12, 2003 (Volume 68, Number 177)]
[Proposed Rules]
[Page 53696-53702]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12se03-20]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[WT Docket No. 03-187; FCC 03-205]
Effects of Communications Towers on Migratory Birds
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(``Commission'') initiates an inquiry to gather comment and information
on the impact that communications towers may have on migratory birds.
The Commission seeks information that is supported by evidence
concerning the number of migratory bird collisions with communications
towers and the role that specific factors associated with
communications towers may have in increasing or decreasing the
incidence of such collisions. The Commission further requests
information on whether any current or proposed research may provide
useful data regarding the subjects of this inquiry, and what other
actions may be necessary to spur additional, necessary research. The
Commission also seeks comment on whether certain measures might
minimize any adverse impacts of communications tower siting and
construction on migratory birds, whether any such measures are
supported by adequate and reliable empirical and/or scientific
evidence, and how the use of such measures may affect the ability of
licensees and other parties to provide efficient and reliable
communications services.
DATES: Comments are due on or before November 12, 2003 and reply
comments are due on or before December 11, 2003.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. See SUPPLEMENTARY INFORMATION for further filing
instructions.
FOR FURTHER INFORMATION CONTACT: G. William Stafford at (202) 418-0563.
SUPPLEMENTARY INFORMATION: This is a summary of the Notice of Inquiry
(``NOI'') in WT Dkt. No. 03-187, FCC 03-205, adopted August 8, 2003,
and released August 20, 2003. The NOI seeks comment and information on
the impact that communications towers may have on migratory birds. The
full text of the NOI is available for public inspection and copying
during regular business hours at the FCC Reference Information Center,
Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554.
The Notice of Inquiry may also be purchased from the Commission's
duplicating contractor, Qualex International, Portals II, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-
2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com. To
request the NOI in accessible formats for people with disabilities,
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (tty).
I. Introduction
1. The Commission is initiating the inquiry to gather comment and
information on the impact that communications towers may have on
migratory birds. As explained, we seek information that is supported by
evidence concerning the number of migratory bird collisions with
communications towers and the role that specific factors associated
with communications towers may have in increasing or decreasing the
incidence of such collisions. Such factors may include lighting,
height, and particular type of antenna structure (including guyed and
unguyed structures), meteorological conditions, location, physiographic
features of sites, and known migratory bird migration corridors. We
further request information on whether any current or proposed research
may provide useful data regarding the subjects of this inquiry, and
what other actions may be necessary to spur additional, necessary
research. We also seek comment on whether certain measures might
minimize any adverse impacts of communications tower siting and
construction on migratory birds, whether any such measures are
supported by adequate and reliable empirical and/or scientific
evidence, and how the use of such measures may affect the ability of
licensees and other parties to provide efficient and reliable
communications services. Depending on the record developed in this
proceeding, the Commission will consider whether the current state of
research would support further action by the Commission in this area,
including possible amendments of its environmental rules. See 47 CFR
1.1301-1.1319.
2. This inquiry is designed to gather comments on scientific
research and other related data relevant to migratory bird collisions
with communications towers, and on whether such research would support
changes within the structure of our current rules and processes
specifically related to protection of migratory birds.
II. Background
3. Communications towers and other structures that support antennas
provide the infrastructure for services licensed by the Commission,
including broadcast television and radio, cellular, Personal
Communications Service (PCS), Specialized Mobile Radio (SMR), and other
advanced and emerging services. Communications towers also are used for
the provision of private radio services used by business and
government, and for public safety purposes.
4. Migratory birds breed throughout the United States and Canada
and, in the fall of each year, migrate to the southern United States,
Mexico, and Central and South America for the winter. Currently, 836
species are on the list of migratory birds maintained by the United
States Fish and Wildlife Service (FWS). Birds that have been documented
as vulnerable to collisions with communications towers include
approximately 350 species of neotropical migratory songbirds, which
generally migrate at night and may be most susceptible to collisions
with lit towers on nights with low visibility due to fog, rain, or low
cloud ceilings. At least one researcher has suggested that an estimated
four to five million birds or more may be killed each year due to
collisions with communications towers. Reports of bird deaths at single
locations on a single day have included instances involving hundreds or
even thousands of birds. However, to our knowledge there have been no
studies sufficient to support a reliable estimate of the number of
migratory birds that may have died as a result of collisions with an
extensive number of communications towers located, for example, over
wide geographic areas. In addition, while some literature suggests that
certain factors--such as tower height, lighting systems, type of
antenna support structure, and location--may increase or decrease the
hazards that towers pose to migratory birds, there does not appear to
be systematic research on an adequate scale regarding exactly how and
to what extent, if at all, these factors contribute to any risk to
migratory birds.
[[Page 53697]]
A. Licensing and Regulation of Radio Communications Services and
Antenna Structures
5. The Commission was created to regulate communications by wire
and radio in the United States. See 47 U.S.C. 151. Section 1 of the
Communications Act, as amended (Act), requires the Commission to
regulate commerce in communications to ``make available, so far as
possible, to all people of the United States * * * a rapid, efficient,
Nation-wide, and world-wide wire and radio communication service with
adequate facilities * * *.'' 47 U.S.C. 151. When Congress amended the
Communications Act in the Omnibus Budget Reconciliation Act of 1993, it
directed ``the development and rapid deployment of new technologies,
products, and services for the benefit of the public * * * [and]
efficient and intensive use of the electromagnetic spectrum.'' See id.
Sec. 309(j)(3)(A), (D). The Telecommunications Act of 1996 was
intended ``to promote competition and reduce regulation in order to
secure lower prices and higher quality services for American
telecommunication consumers and encourage the rapid deployment of new
telecommunications technologies.'' Congress also has provided that all
television broadcasting in the United States will be by digital
technology by the end of the transition to digital television (DTV) on
December 31, 2006. See 47 U.S.C. 309(j)(14)(A)-(B). In addition, the
Commission is authorized to assign frequencies to classes of stations,
and has designated spectrum for public safety use. The Wireless
Communications and Public Safety Act of 1999 (911 Act) directs the
Commission to make 911 the universal emergency number for wireless and
wireline telephone service and, among other matters, to encourage and
support the development of comprehensive emergency communications
throughout the United States so that all jurisdictions offer seamless
networks for prompt emergency service.
6. As part of its responsibilities, the Commission issues licenses
and permits relating to communications services and, pursuant to
statute, requires antenna structures to conform to painting and
lighting requirements. Section 301 of the Act requires the issuance of
a license for radio communications, 47 U.S.C. 301, and construction
permits from the Commission are required for certain services. See 47
U.S.C. 319. Section 307(b) of the Act charges the Commission with the
duty to distribute broadcast licenses ``among the several States and
communities as to provide a fair, efficient, and equitable distribution
of radio service to each of the same.'' 47 U.S.C. 307(b). Section
303(q) of the Act provides that the Commission shall have ``authority
to require the painting and/or illumination of radio towers if and when
in its judgment such towers constitute, or there is a reasonable
possibility that they may constitute, a menace to air navigation.'' 47
U.S.C. 303(q). Section 303(q) further provides that the ``permittee or
licensee, and the tower owner in any case in which the owner is not the
permittee or licensee, shall maintain the painting and/or illumination
of the tower as prescribed by the Commission pursuant to this
section.'' To implement Section 303(q), the Commission has provided in
its rules that the owner of any proposed or existing antenna structure
that requires notice of proposed construction to the Federal Aviation
Administration (FAA) must register the structure with the Commission
prior to construction. 47 CFR 17.4(a). Specifically, such notification
and registration is required for antenna structures that meet certain
height and location criteria (generally towers more than 60.96 meters
(200 feet) in height or located within certain distances of an airport,
as specified in the Commission's rules). As of June 1, 2003,
approximately 92,454 antenna structures were registered with the
Commission. The Commission's rules further require that tower owners
paint and light their antenna structures in accordance with the FAA's
advisory specifications for air navigation safety purposes. 47 CFR
17.6(a), 17.22, 17.23, and note preceding 47 CFR 17.45.
B. Environmental Statutes and Regulations
7. The National Environmental Policy Act (NEPA) is the basic
national charter for protection of the environment, and requires
federal agencies to establish procedures to identify and account for
the environmental impact of projects they undertake or authorize. NEPA
provides that ``to the fullest extent possible * * * all agencies of
the Federal Government shall * * * include in every recommendation or
report on * * * major Federal actions significantly affecting the
quality of the human environment'' a detailed statement on the
environmental impact of the proposed action and any adverse
environmental impacts that cannot be avoided if the proposal is
implemented. 42 U.S.C. 4332(2)(c). The Council on Environmental
Quality's (CEQ) regulations provide that ``human environment'' shall be
``interpreted comprehensively to include the natural and physical
environment and the relationship of people with that environment.'' 40
CFR 1508.14. NEPA also requires all Federal agencies to consult with
and obtain the comments of expert Federal agencies before taking any
major action significantly affecting the quality of the human
environment. 42 U.S.C. 4332(2)(c).
8. The Endangered Species Act (ESA) prohibits the taking of any
endangered species by any person unless authorized by FWS. 16 U.S.C.
1538(a)(1)(B). The ESA also provides that ``[e]ach Federal agency
shall, in consultation with and with the assistance of the Secretary
[of the Department of the Interior], insure that any action authorized,
funded, or carried out by such agency * * * is not likely to jeopardize
the continued existence'' of any endangered species or threatened
species or result in the ``destruction or adverse modification of
habitat of such species which is determined by the Secretary * * * to
be critical * * *.'' Id. Sec. 1536(a)(2). The Migratory Bird Treaty
Act (MBTA) makes it ``unlawful at any time, by any means or in any
manner, to pursue, hunt, take, capture, kill, attempt to take, capture
or kill * * * any migratory bird'' unless permitted by FWS. See 16
U.S.C. 703, 704(a). Although certain species of migratory birds are
protected under the ESA, many additional species are protected under
the MBTA and not the ESA.
C. The Commission's Environmental Rules
9. The Commission has implemented subpart I of NEPA pursuant to 42
U.S.C. 4321-4335, in part 1, subpart I of its rules. See 47 CFR 1.1301.
Under these rules, any Commission action deemed to have a significant
effect upon the quality of the human environment requires the
preparation of an Environmental Impact Statement (EIS). 47 CFR 1.1305.
Any action deemed potentially to have a significant environmental
effect under categories specified in section 1.1307(a)(1) through (8)
and (b) of the rules requires the preparation of an Environmental
Assessment (EA). Id. 1.1307(a)(1) through (8), (b). In addition, the
Commission will require the preparation of an EA if it is determined
that a particular action, which is otherwise categorically excluded
under the rules, may have a significant environmental impact. Id.
1.1307(c), (d). Actions that are deemed individually and cumulatively
to have no significant effect on the quality of the human environment
are categorically excluded from environmental processing, and do not
require the preparation of an EA by
[[Page 53698]]
the applicant or the preparation of an EIS by the agency.
10. Prior to construction, all tower owners are required to
evaluate whether towers that require registration fall within one of
the specified categories of facilities with potential significant
environmental impact, to file an EA if they do, and to certify
compliance with the environmental rules on the Antenna Structure
Registration application form. Similarly, license and certain other
permit applicants are required to certify compliance with the
environmental rules on the appropriate application form, depending on
the particular service. If an EA is not required, the party may proceed
with the project without providing any environmental documentation to
the Commission. However, if there would be such a potential impact, an
EA must be submitted and a Finding of No Significant Impact or
Environmental Impact Statement issued before construction.
11. Section 1.1307(a)(3) provides that an EA is required for
proposed facilities that may affect listed threatened or endangered
species or designated critical habitats, or are likely to jeopardize
the continued existence of any proposed endangered or threatened
species or likely to result in the destruction or adverse modification
of proposed critical habitats, as determined by the Secretary of the
Interior pursuant to the ESA. 47 CFR 1.1307(a)(3). Thus, applicants and
licensees are routinely required to evaluate their construction
projects for potential adverse effects on birds that are endangered,
threatened, or otherwise subject to Sec. 1.1307(a)(3), and to file an
EA if the terms of Sec. 1.1307(a)(3) are met. The Commission's rules
require the solicitation and consideration of comments of the
Department of Interior with respect to actions specified in Sec.
1.1307(a)(3) of our rules. Id. 1.1308 note; see id. (a)(3). With
respect to other birds, routine evaluation is not required, but an EA
shall be required under Sec. 1.1307(c) or (d) if the relevant Bureau
finds, in response to a petition or on its own motion, that the
proposed construction may have a significant environmental impact other
than impacts specified under Sec. Sec. 1.1307(a)(1) through (8) and
(b) of the Commission's rules. The Commission has acted under Sec.
1.1307(c) to consider the impact that proposed construction would have
on migratory birds.
D. Developments Relating to Migratory Birds and the Construction of
Communications Towers
12. A Communication Tower Working Group (CTWG) consisting of
representatives from the scientific, federal and state agency,
environmental, consulting, and industry communities was formed under
the auspices of FWS to help develop research on the effect that
communications facilities may have on migratory birds. The research
issues include the roles that certain factors associated with
communications towers, including lighting, height, and the type of
tower, may have on migratory birds. The CTWG also has sought to examine
the potential for research into measures that may minimize migratory
bird collisions with towers. On September 14, 2000, FWS issued its
``Service Guidance on the Siting, Construction, Operation and
Decommissioning of Communications Towers,'' which includes voluntary,
interim guidelines to be used by FWS personnel and recommended for use
by the communications tower industry in considering proposed tower
sitings for their impacts on endangered species and migratory birds.
The guidelines are to be used by FWS personnel until the CTWG's
research is ``completed, or until research efforts uncover significant
new mitigation measures.'' The guidelines are based on research
conducted in several Eastern, Midwestern, and Southern states, and
refined through FWS regional review.
III. Request for Comments
A. Current State of Scientific Information
13. The impact that communications towers may have on migratory
birds has been the subject of study or other analysis for decades, and
several reports have shown bird deaths at individual locations during a
single day or over multiple years. Nevertheless, it appears that
current knowledge about both the extent to which towers kill migratory
birds and the specific factors that may contribute to any danger is
limited. For example, a March 2000 review of recent literature and
research in progress that was prepared for FWS, Office of Migratory
Bird Management, found, among other matters, that: (a) For the 5-year
period 1995-1999, very little research was published or conducted that
is relevant to the bird-communications tower collision issue; (b) since
certain ``major reviews'' of the late 1970s and early 1980s, there has
been little research on the subject; and (c) for the period before
1985, there is a body of literature on the issue, but most of it is
anecdotal and the literature itself has not been examined analytically.
14. We seek comment on and analysis of existing scientific research
and studies relating to the impact that communications towers may have
on migratory birds. As discussed, at least one source suggests that an
estimated four to five million birds may be killed each year due to
collisions with communications towers, and another suggests that the
number may be higher. In addition, there are reports of bird deaths at
individual locations during one day or over time. We seek comment on
the extent of migratory bird deaths that may be attributable to
collisions with communications towers, the species and geographic
locations involved, and what the raw numbers mean in terms of survival
of species or in other relevant contexts. We ask that comments
thoroughly discuss the methods that are used to quantify any
information provided on this matter.
15. We also seek comment on the adequacy and reliability of
scientific research on the impact of towers on migratory birds,
including whether the parties that conducted the research are
considered to be experts in the field, and whether the research was
conducted in a scientifically-acceptable and rigorous manner. Comments
should address whether the research was performed over an adequate
period of time. Specifically, how many years and migration seasons were
studied, and why is the length of time either adequate or inadequate to
support the empirical conclusion? With respect to the scope of the
study and research, was it conducted in a manner that allowed all
relevant variables to be considered? We generally expect that variables
affecting the impact that towers may have on migratory birds are likely
to fall within two categories: (a) Those that may be within the control
of the tower owner or licensee, such as tower lighting, height, type of
tower structure, and location; and (b) those that are the result of
natural phenomena, such as weather, low cloud ceilings, and fog. We
seek comment on the extent to which research has considered these or
other variables, and whether the research has considered the
appropriate combination of variables in order to achieve reliable
results. For example, were a sufficient number of towers studied in
order to provide an adequate sampling and a reliable indication of the
impact of towers on migratory birds? Were the towers located at
different sites, and did they include a range of different towers with
different variables including: height; location in different geographic
[[Page 53699]]
settings, including proximity to migratory bird flyways; different
lighting systems; and different tower structures, including the use of
guy wires? Have studies used Geographic Information Systems (GIS),
radar, acoustical monitoring, or other methods to assess migratory bird
presence, help conduct risk assessments, and determine high bird
density areas or areas of critical importance to birds? On the other
hand, is it necessary for research to examine different towers in order
to reflect these and other variables? For example, does a study that is
conducted at a single location over a long period of time provide
reliable scientific results for the Commission to use to propose
changes in its rules and processes, or is it necessary for numerous
towers at different locations to be studied?
16. We also seek comment on whether the research included effective
protocols to account for the actual numbers of birds killed at specific
towers. Specifically, did the research employ standard metrics to count
dead birds at individual towers in order to provide a uniform analysis
of results from all towers for comparative purposes, or was some other
method used? How often and at what times of day were searches
conducted, and what other methods were used to promote searcher
efficiency and control scavenger removal (e.g., clearing of areas
around the base of the tower or use of netting)? Comments should also
address any other measures that were or were not used to account or
control for other relevant variables, such as whether efforts were made
to reduce lighting located near but not on the towers that otherwise
could attract migratory birds. We seek a critical analysis of the
research, which examines both the adequacies and inadequacies of the
research, its methodologies, findings, and conclusions.
1. Tower Lighting
17. Lighting may be an important factor in attracting and/or
disorienting migratory birds at communications towers. Particularly in
inclement weather, including cloudy nights, birds entering an
illuminated area may be reluctant to leave and may be susceptible to
colliding with lighted towers, their supporting guy wires, or each
other. It has been suggested that the color of tower lights, such as
white, white with ultraviolet, or a specific color like red, and the
duration of any pulse in the lights, such as strobe, slow flash, or
steady pulse, may be factors that can alter the attraction of lighting
to migratory birds. The intensity of light, e.g., in lumens, also may
play a role. Some reports suggest that white strobe lights may be less
attractive to neotropical migratory species than steady or flashing red
incandescent lights, while the attraction of red strobe lights to
migratory birds is currently unknown.
18. We seek comment on whether and why lighted towers attract
birds, and whether different lighting systems increase the potential
for migratory bird collisions with communications towers. We seek
information on whether studies document any difference in risk posed by
lighting systems that use lights of different color or different rates
of flash, pulse, or strobe (including red or white strobe). Comments
also should address the effects of lighting color, duration, intensity,
and type (e.g., incandescent, strobed, neon, or laser) on bird
attraction, especially at night during inclement weather and during
spring and fall migrations. In addition, we ask that commenters take
into consideration, where appropriate, the impact of different tower
lighting systems on human communities. Further, are particular lighting
systems or colors more or less attractive to migratory birds based on
differing tower heights? We also ask that commenters recommend specific
lighting systems to minimize migratory bird collisions with towers, to
the extent supported by scientific findings.
19. Air safety and navigation issues are related to the painting
and lighting of towers. The FAA has established painting and lighting
advisory specifications for air safety and navigation purposes, and our
rules require that the owners of communications towers paint and light
their antenna structures in accordance with those advisory
specifications. We seek comment on the impact, if any, that our
painting and lighting requirements may have on migratory bird
collisions with towers. Comments should address and suggest solutions
to any conflicts that may exist between the advisory specifications and
other related rules on the one hand, and causes of migratory bird
collisions on the other. Comments and suggestions also should consider
air safety and navigation concerns relating to towers and their
lighting and marking (e.g., towers are marked and lighted to be visible
by pilots), and the obligations of the Commission with respect to air
safety and navigation.
2. Tower Height
20. The height of towers may contribute to the extent of their
impact on migratory birds. One report suggests that an important
analysis would be to compare towers of different heights, that there
have been relatively few studies of towers less than 400 feet in
height, and that certain literature, although perhaps only suggestive,
does not generally implicate such shorter towers in a significant
number of bird deaths. Research conducted at two specific locations
suggests that taller towers, and the structures associated with them,
may increase avian mortality at those sites. However, it has been
suggested that these and other studies do not definitively establish
that tall towers are responsible for more bird deaths than shorter
towers, and the apparent lack of mortality studies at short towers may
make it premature to assume that short towers cause fewer bird deaths
than tall towers.
21. We seek comment on the role of tower height as a cause of
collisions by migratory birds with communications towers. Are there
reliable scientific studies that compare the impacts on migratory birds
of towers of different heights, and do they control for other variables
such as geographic location, proximity to bird movement corridors, and
prevailing weather conditions? If there are such studies, what are the
results and the significance, if any, for determining the height of
tower that may pose the greatest or least risk to migratory birds? Do
studies examine whether short towers have less impact on migratory
birds than tall towers, and do they identify the heights of the towers
that were studied? The comments should consider and document, to the
extent possible, whether there is a height threshold at which avian
mortality becomes significant to an avian population, and any other
factors that may lead to a determination of critical tower height for
purposes of minimizing migratory bird collisions with towers, including
whether the critical height threshold may be different in different
geographic locations or weather conditions. We also ask that comments
address the relationship, if any, of tower height with other factors,
such as lighting, and whether there are situations where tower height
could be limited to deter collisions by birds with towers yet still
allow the provision of reliable communications services.
3. Type of Antenna Structure
22. The type of antenna support structure may be another important
factor in the extent to which communications towers have an impact on
migratory birds. For example, guy wires could create a level of risk to
migratory birds that is not present with unguyed towers. We seek
comment on
[[Page 53700]]
what impact, if any, different tower structures may have on migratory
birds. Comments should include any studies or research on this issue,
and should address the relative impact on migratory birds of guyed
towers, self-supporting lattice towers, monopole towers, or other
structures such as ``hidden'' towers that are made to resemble trees,
for example. Are there factors that may make a particular type of tower
structure more or less of a risk to migratory birds? For example, would
guyed towers pose more of a risk than other tower structures to
migratory birds at night in inclement weather? We also seek comment on
whether particular tower designs or potential deterrent devices such as
visual markers may deter migratory birds from towers.
4. Location of Antenna Structures and Other Factors
23. We seek comment on research or other data relating to any other
matters within the scope of this inquiry. For example, is there
information concerning the impact on migratory birds of communications
towers located in or near specific habitats, such as wetlands, which
may be a possible location of migratory bird populations? Do towers on
ridges, mountains, or other high ground have a differential impact on
migratory bird populations and, if so, are there scientifically
rigorous studies that address such effects and their causes? We seek
comment on the impact on migratory birds, if any, of locating towers in
areas with a high incidence of fog, low clouds, or similar obscuration,
in proximity to coastlines and major bird movement corridors, or either
clustered near or dispersed from other towers. Comments on the role of
any of these factors should consider the extent of any such impact
during migration seasons. We also seek comment on any other factors
that may influence the impact of communications towers on migratory
birds. In addition, are data available from studies of non-
communications facilities which may be relevant on the issue of the
impact of communications facilities on migratory birds? If such
information is relied upon, commenting parties should establish the
relevance of that information and the relationship of facilities used
in those industries to facilities used in the communications industry.
24. Certain migratory bird species may hold particular cultural or
religious significance to Indian Tribes. The Commission has made a
commitment to consult with federally recognized Indian tribes to the
extent practical prior to implementing any regulatory action or policy
that will significantly or uniquely affect Tribal governments, their
land and resources. Consistent with that commitment, we specifically
seek comments from the Tribes and other parties on whether any of the
questions raised in this inquiry will significantly impact Tribal
governments, their land, and resources.
B. Need for and Scope of Additional Study
25. In the event that parties believe that existing research is
insufficient to permit the Commission to address fully the issue of
migratory bird collisions with towers, we seek comment on what
additional study or studies may be needed. We ask for comment on what
variables the research should address, including possible lighting
regimes, tower height, type of structure, location, and impact of
different weather conditions. Comments should discuss the specific
scope and parameters of recommended studies, including: the number of
towers; different lighting regimes to be studied; whether a range of
towers with different heights should be included; the geographic
positioning of towers, including such factors as the incidence of
inclement weather, topography, and proximity to areas that may be
attractive to migrating birds, such as wetlands; and the different
tower structures such as guyed or unguyed, including monopole, lattice,
or other structures. We also seek comment on what types of procedures
should be used to monitor birds that may be killed at communications
towers during these studies. In addition, we request comment on whether
studies can be structured specifically to research potential methods of
reducing the potential for migratory bird collisions with towers.
26. Commenters should consider how much time would be needed to
complete a new study or studies. Specifically, how many fall and spring
migration seasons should be covered by any research, and how many
summer seasons, if any, would be needed to monitor impacts on breeding,
nesting, and local resident avian species? We seek comment on the
factors that would impact the length of any study, including the number
of towers that would be the subject of the research, and the particular
testing procedures that would be used. In addition, there may be
unpredictable factors, such as weather, that affect the time that it
would take to complete a study. Estimates of the length of a study also
should identify whether the estimates include the preparation of
smaller pilot studies that may be needed to obtain meaningful data that
would be used to design a broader and more in-depth study. We also seek
comment on whether pilot studies followed by one or more larger studies
are necessary, or whether one or more smaller studies could yield
sufficient information on which the Commission could base future
actions respecting migratory bird issues. If one or more smaller
studies alone would be adequate, comments should address the relevant
protocols. We further seek comment on the potential value of monitoring
bird deaths at particular towers outside the context of a formal study,
either in addition to or in lieu of such studies.
27. We also seek comment on the appropriate party or parties to
design and conduct a study. The Commission is not an expert in the area
of migratory birds, and we seek comment on what other entity might
appropriately oversee any research that could be used to establish
relevant standards for the Commission's use. In this regard, we note
that the FWS is the lead federal agency for managing and conserving
migratory birds, and its Division of Migratory Bird Management
undertakes a number of surveys in conjunction with the FWS Regional
Offices. We also seek comment on any ongoing or planned studies with
which the Commission might coordinate in order to achieve synergies and
avoid duplication of effort.
28. Another important consideration is the cost of a study and the
source of funding. Cost can vary widely depending, in part, on the
length of the study, the number of towers to be included, the extent of
the geographic area, and particular tower features such as height and
lighting. Sources for funding such studies have been difficult to
identify. Comments should address both the estimated cost of any
studies and potential sources of funding.
C. Suggested Methods To Minimize Impacts
29. We seek comment on whether existing studies or research address
the use of particular methods to minimize any impact of communications
towers on migratory birds. For example, would particular lighting
systems, devices located on or near facilities to deter migratory
birds, or other measures help to minimize bird collisions with
communications towers? Comments should identify any particular methods,
discuss the extent to which they have been used on communications
towers or other similar relevant structures, and quantify the results
of their use. In addition, would alternative siting of towers to avoid
particular areas be a
[[Page 53701]]
reasonable method to minimize impacts, and are there alternate
technologies available that would permit fewer and/or shorter towers to
be built, yet still permit communications needs to be met? On the other
hand, would the use of alternate siting be constrained by existing
technology, the need for communications carriers to provide coverage
for their services, build-out requirements under the Commission's
rules, or any other requirements? In addition, do certain parts of
towers, e.g., top, middle, or lower sections, pose more or less of a
potential for collisions with migratory birds and, if so, are there
specific construction techniques, deterrent actions, or other methods
that would be useful to minimize impacts?
30. The FWS Tower Siting Guidelines encourage certain measures that
FWS says will ``provide significant protection for migratory birds
pending completion'' of the CTWG's recommendations. The voluntary
guidelines, which FWS recommends for use by all companies, license
applicants, or licensees proposing new tower sitings, include to the
extent feasible: collocation of antennas on existing towers or other
structures rather than new tower construction; where collocation is not
feasible, construction of new towers that are no taller than 199 feet
above ground level without guy wires or lighting; siting new towers
within existing tower farms; and use of the minimum acceptable amount
of pilot warning and obstruction avoidance lighting recommended by the
FAA for towers that require lights for aviation safety. As described,
FWS intended the guidelines for interim use, and they were established
in anticipation of further action by the CTWG. Further, FWS states that
the guidelines would be ``updated as new information becomes
available.'' Thus, these guidelines were not adopted as final measures,
but were developed with the understanding that determining the
appropriate methods to minimize the impact of communications towers on
migratory birds would be an ongoing process.
31. We request comment on the scientific basis for these
guidelines, the general use of the guidelines and the use of each of
the specific guidelines, and any other potential measures to minimize
impacts on migratory birds within the scope of our current rules. For
example, comments could consider whether an MOU or other agreement
between the Commission and other agencies, such as the FWS, could be
used to specify the process to review potential impacts of antenna
support structures on migratory birds, or to help facilitate any
necessary research on the matters addressed in this inquiry. Comments
also should address whether the current state of scientific knowledge
on causes of bird collisions with communications towers supports the
use of any or all of the FWS Tower Siting Guidelines. Further, does
current scientific evidence support a finding that particular towers do
not significantly pose a threat to migratory birds? For example, does
such evidence exist relating to towers of a particular height, e.g.,
unlit towers that are less than 200 feet in height, or towers that use
particular lighting, e.g., towers with primarily white strobe lighting?
Commenters in particular should address the relationship of any
measures they support or oppose with the current state of scientific
knowledge. Comments also should consider how best to implement any of
these matters within the current structure of our rules.
32. Particular guidelines intended to minimize impacts on migratory
birds may, depending on their application, have an impact on Commission
licensees, applicants, or other parties with respect to tower design
and engineering, the ability to provide necessary communications
services, liability, and costs. We seek comment on what effects, if
any, the recommended FWS guidelines or other efforts to minimize
impacts have had in these areas. Specifically, comments should address
whether current or potential increased application of any of the
guidelines would contribute to delay in tower construction, the
provision of Commission-licensed services, or the transition to digital
television. Comments should address advantages and disadvantages
associated with different means of implementing the FWS guidelines,
possible revisions to those guidelines, or other measures.
33. The Commission licenses and regulates the use of radio
transmitters by state and local governments in public safety
activities. We seek comment on the impact that restrictions or
guidelines regarding tower siting and construction to protect migratory
birds may have on the use of radio transmission for public safety. What
would be the effect on the coverage provided by towers used to provide
public safety service if those towers were, for example, subject to
restrictions on height or other features in order to protect migratory
bird populations? We also seek comment on what impact tower
construction restrictions may have on homeland security objectives. In
addition, are there other potential conflicts between potential
measures to minimize impacts of communications towers on migratory
birds and the availability of communications towers to address security
concerns?
34. The Commission is committed to serving all parties interested
in the impact that communications towers may have on migratory birds as
well as resources allow. To this end comment is sought on ways that the
Commission can do so better. What can the Commission do to meet its
responsibilities under relevant statutes and rules better? Should the
Commission develop additional staff expertise on avian mortality
issues? Would the expertise of an ecologist or environmental biologist
be helpful? What staff backgrounds are most important? What additional
training should be made available for existing staff? Are there
Commission procedures or rules that impede industry's or environmental
groups' efforts to address issues related to avian mortality? For
example, are there aspects of our EA requirements that could be
improved with respect to migratory bird issues? Is there data that the
Commission collects that could be of assistance to researchers in this
field?
IV. Procedural Issues
A. Ex Parte Presentations
35. This is an exempt proceeding in which ex parte presentations
are permitted (except during the Sunshine Agenda period) and need not
be disclosed.
B. Filing of Comments and Reply Comments
36. We invite comment on the issues and questions set forth.
Pursuant to applicable procedures set forth in sections 1.415 and 1.419
of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may
file comments on or before November 12, 2003, and reply comments on or
before December 11, 2003.
37. Comments may be filed using the Commission's Electronic Comment
Filing System (ECFS) or by filing paper copies. Given recent changes in
the Commission's mail delivery system, parties are strongly urged to
use the ECFS to file their pleadings. Comments filed through the ECFS
can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html.
Generally, only one copy of an electronic
submission must be filed. In completing the transmittal screen,
electronic filers should include their full name, Postal Service
mailing address, and the applicable docket number. Parties may also
submit an electronic comment by Internet e-mail. To receive filing
instructions for e-mail
[[Page 53702]]
comments, commenters should send an e-mail to ecfs@fcc.gov, and should
include the following words in the body of the message, ``get form
.'' A sample form and directions will be
sent in reply.
38. Parties who choose to file by paper must file an original and
four copies of each filing. All filings by mail (including U.S. Postal
Service Express Mail, Priority Mail and First Class Mail) must be sent
to the Commission's Secretary, Marlene H. Dortch, Federal
Communications Commission, Office of the Secretary, 445 12th Street,
SW., Washington DC 20054. All filings sent to the Commission by
overnight delivery, e.g., Federal Express (other than by U.S. Postal
Service Express Mail and Priority Mail), must be sent to the
Commission's Secretary, Marlene H. Dortch, Federal Communications
Commission, Office of the Secretary, 9300 East Hampton Drive, Capitol
Heights, MD 20743. All hand-delivered or messenger-delivered filings
must be delivered to the Commission's filing location at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002-4913. The
filing hours at this facility are 8 a.m. to 7 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes
must be disposed of before entering the building.
39. Parties who choose to file by paper should also submit their
comments on diskette to: G. William Stafford, Commercial Wireless
Division, Wireless Telecommunications Bureau, Federal Communications
Commission, 445 12th Street, SW., Washington, DC 20554. The required
diskette copies of submissions should be on 3.5-inch diskettes
formatted in an IBM compatible format using Microsoft Word or
compatible software. Each diskette should be accompanied by a cover
letter and should be submitted in ``read only'' mode. The diskette
should be clearly labeled with the commenter's name, proceeding, type
of pleading (comment or reply comment), date of submission, and the
name of the electronic file on the diskette. The label should also
include the following phrase ``Disk Copy--Not an Original.'' Each
diskette should contain only one party's pleadings, preferably in a
single electronic file. In addition, commenters must send diskette
copies to the Commission's copy contractor, Qualex International,
Portals II, 445 12th Street SW., CY-B402, Washington, DC 20554.
40. Regardless of whether parties choose to file electronically or
by paper, parties should also serve the following with either one copy
of each filing via e-mail or two paper copies: (1) Qualex
International, Portals II, 445 12th Street, SW., Room CY-B402,
Washington, DC, 20554 (telephone (202) 863-2893; facsimile (202) 863-
2898) or e-mail at qualexint@aol.com; and (2) G. William Stafford,
Federal Communications Commission, Room 6329, 445 12th Street, SW.,
Washington, DC 20554, or e-mail at Bill.Stafford@fcc.gov. 41. Comments and reply comments will be available for public
inspection during regular business hours in the FCC Reference
Information Center, Federal Communications Commission, 445 12th Street,
SW., Room CY-A257, Washington, DC 20554. These documents also will be
available electronically from the Commission's Electronic Comment
Filing System. Copies of filings in this proceeding may be obtained
from Qualex International, Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC, 20554, telephone (202) 863-2893, facsimile (202)
863-2898, or via e-mail at qualexint@aol.com. To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an e-mail to fcc504@fcc.gov or
call the Consumer & Governmental Affairs Bureau at 202-418-0531
(voice), 202-418-7365 (tty).
V. Ordering Clauses
42. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 4(i), 303(r) of the Communications Act, 47
U.S.C. 151, 154(i), and 303(r), this Notice of Inquiry is adopted.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-23311 Filed 9-11-03; 8:45 am]
BILLING CODE 6712-01-P