**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: November 3, 2006 Released: November 7, 2006**

**Comment Date: (60 days from publication in the Federal Register)**

**Reply Comment Date: (90 days from publication in the Federal
Register)**

By the Commission: Commissioners Copps, Adelstein, and McDowell issuing
separate statements.

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. BACKGROUND 4

A. Environment Protection Statutes and Regulations 7

B. The Notice of Inquiry (*NOI)* 12

C. The Avatar Report and Comments 22

D. Studies at Michigan Public Safety Communications System (MPSCS)
Towers 30

III\. DiScussion 32

A. Legal Framework 33

B. Possible Need for Commission Action 36

C. Possible Commission Actions 38

1\. Lighting requirements 38

2\. Use of Guy Wires 48

3\. Tower Height 56

4\. Tower Location 59

5\. Collocation 60

6\. Section 1.1307 61

7\. Other Possible Actions. 65

IV\. PROCEDURAL MATTERS 66

A. *Ex Parte* Rules -- Permit-But-Disclose Proceeding 66

B. Initial Regulatory Flexibility Act Analysis 67

C. Initial Paperwork Reduction Act of 1995 Analysis 68

D. Comment Period and Procedures 69

E. Further Information 70

V. Ordering Clauses 71

APPENDIX A -- Initial Regulatory Flexibility Analysis

APPENDIX B -- List of Commenters

# INTRODUCTION

1.  This Notice of Proposed Rulemaking seeks comment on whether the
    Commission should take measures to reduce the number of instances in
    which migratory birds collide with communications towers. In the
    Migratory Bird Notice of Inquiry (*NOI*), released in August 2003,
    the Commission launched an inquiry regarding the impact that
    collisions with communications towers may have on migratory birds.
    The *NOI* requested information supported by scientific evidence on
    a number of topics in three general categories: the number of
    migratory bird collisions with communications towers; the role that
    certain factors, such as lighting, height and type of antenna
    structure, weather, location, and migration paths, might play in the
    incidence of such collisions; and the effectiveness of any measures
    to mitigate migratory bird collisions with communications towers.
    The Commission stated that based on the record developed in response
    to the *NOI*, it would consider whether further Commission action is
    warranted, including possible amendments of the environmental
    rules.[^1]

2.  In response to the *NOI*, the Commission received comments and *ex
    parte* submissions from a variety of telecommunications companies,
    tower companies, trade associations, federal and state government
    agencies, environment protection organizations, and American Indian
    tribes, as well as from concerned citizens.[^2] Representatives of
    the communications industry generally argue there is no statutory or
    regulatory authority, nor sufficient, reliable, scientific research,
    to support the Commission's adoption of new measures to protect
    migratory birds. Other commenters, however, argue there is
    sufficient evidence of mass bird mortalities at communications
    towers to support, or require, the adoption of lighting and other
    requirements to protect migratory birds. To assist the Commission in
    evaluating the quality and sufficiency of the existing research, the
    agency hired an environmental consulting firm, Avatar Environmental
    LLC (Avatar). After Avatar furnished a report with its findings and
    recommendations, the Wireless Telecommunications Bureau issued a
    Public Notice seeking comments and reply comments in response to the
    report.[^3]

3.  We tentatively conclude that, for communications towers subject to
    our Part 17 rules, medium intensity white strobe lights for
    nighttime conspicuity is to be considered the preferred system over
    red obstruction lighting systems to the maximum extent possible
    without compromising safety. We seek comment on whether scientific
    evidence supports such a requirement and, if so, how it should be
    implemented. In addition, we request comment on the possible
    adoption of various other measures that might serve to mitigate the
    impact of communications towers on migratory birds.

# BACKGROUND

4.  Communications towers are part of the infrastructure necessary to
    provide many of the services licensed by the Commission, such as
    broadcast television and radio, cellular, Personal Communications
    Services ("PCS"), public safety systems and other advanced and
    emerging services. Although new communications antennas can often be
    collocated on existing towers or other structures such as buildings,
    in many instances the deployment of services requires construction
    of new antenna structures. Several factors, such as construction
    costs, government regulations, the availability of a willing
    landowner, and the engineering requirements of a service provider,
    can influence the decision whether to collocate a new communications
    antenna on an existing structure or construct a new tower. Designs
    of communications towers may differ. For instance, communications
    towers may be supported by guy wires or can be self-supporting,
    again potentially depending on various engineering, economic,
    environmental, or historic preservation factors.[^4] Communications
    towers range widely in height, with many being under 100 feet above
    ground level (AGL), others over 1,000 feet AGL, and different
    heights in-between.

5.  The Commission and the FAA each has statutory responsibilities
    related to ensuring that antenna structures do not present a hazard
    to air safety.[^5] Specifically, Section 303(q) of the
    Communications Act of 1934, as amended (Communications Act),
    authorizes the Commission to prescribe painting and/or illumination
    of radio towers when there is a "reasonable possibility" that an
    antenna structure may cause a hazard to air navigation, and requires
    permittees, licensees, and tower owners to maintain such lighting
    and/or illumination.[^6] Section 1501 of the Federal Aviation Act
    authorizes the FAA to require that persons proposing to erect a
    structure provide notice to the FAA, when such notice will promote
    air safety.[^7] Under current rules, each tower owner proposing to
    construct or alter an antenna structure that is more than 200 feet
    (60.96 meters) in height, or that may interfere with the approach or
    departure space of a nearby airport runway, must notify the FAA of
    the proposed construction and must register the tower with the
    Commission.[^8] The FAA considers whether the proposed structure
    constitutes a potential hazard, and may recommend appropriate
    painting and lighting for the structure.[^9] The Commission requires
    that each owner or constructor of a proposed structure providing
    such notice to the FAA must, in turn, register the structure in the
    Commission's database, at which time the Commission imposes specific
    marking and lighting requirements on the tower owner.[^10] Although
    the Commission ordinarily prescribes marking and lighting based on
    the FAA's recommendations, the Commission retains, consistent with
    statutory authority, the ability to specify different requirements
    when appropriate.[^11] As of November 2, 2006, approximately 104,703
    antenna structures were registered with the Commission.[^12]

6.  The Department of the Interior's United States Fish and Wildlife
    Service (FWS) is the federal agency with primary authority to
    enforce federal statutes intended to protect migratory birds and
    other wildlife.[^13] FWS currently lists 711 species of migratory
    birds.[^14] It estimates that 350 species of neo-tropical songbirds
    on the list of migratory birds breed in the temperate climates of
    the United States and in Canada and, in the fall of each year,
    travel long distances to as far as South America for the
    winter.[^15] In 2002, FWS published a report in which it estimated
    that "a minimum of 10 billion birds breed in North America" and that
    the population level of migratory birds during the fall season could
    be about 20 billion.[^16] FWS has also estimated that the number of
    migratory birds killed each year as a result of collisions with
    communications towers could range from 4 to 50 million.[^17]

## Environment Protection Statutes and Regulations

7.  Federal statutes that may be pertinent to the Commission's
    obligation to protect migratory birds include the National
    Environmental Policy Act of 1969 (NEPA),[^18] the Endangered Species
    Act (ESA),[^19] and the Migratory Bird Treaty Act (MBTA).[^20]
    Although NEPA does not mandate particular substantive actions to
    protect the environment,[^21] it requires federal agencies to
    establish procedures to identify and take into account the
    environmental impact of actions that they undertake or
    authorize.[^22] Federal agencies must prepare an environmental
    impact statement (EIS) before taking any "major federal action\[\]
    significantly affecting the quality of the human environment."[^23]
    Federal agencies must also obtain the comments of expert Federal
    agencies before taking any major action significantly affecting the
    quality of the human environment.[^24] The Council on Environmental
    Quality (CEQ),[^25] which Congress created to provide guidance on
    NEPA, has issued regulations that permit an agency to prepare a more
    limited Environmental Assessment (EA) in order to determine whether
    an EIS is necessary for a particular action.[^26] An agency that
    decides, pursuant to an EA, that no EIS is required must issue a
    "finding of no significant impact" (FONSI).[^27] A federal agency
    may also determine, pursuant to agency procedures, that certain
    types of actions are "categorically excluded," because such actions
    do not individually or cumulatively have a significant effect on the
    human environment, and therefore such actions normally do not
    require an EIS or EA.[^28]

8.  The ESA prohibits the taking of any endangered species by any person
    unless authorized by FWS.[^29] The ESA also provides that "\[e\]ach
    Federal agency shall, in consultation with and with the assistance
    of the Secretary \[of the Interior\], ensure 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 . . . ."[^30] The 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.[^31] Certain species of
    migratory birds are protected under the ESA, and many additional
    species are protected under the MBTA and not the ESA.[^32]

9.  The Commission has implemented NEPA and CEQ's procedural
    requirements in Part 1, Subpart I of its rules.[^33] Under these
    rules, any action that would have a significant effect upon the
    quality of the environment requires the preparation of an EIS.[^34]
    Any action deemed potentially to have a significant environmental
    effect under categories specified in Section 1.1307(a)(1)-(8)
    and (b) of the rules requires the preparation of an EA.[^35] All
    other actions are deemed individually and cumulatively to have no
    significant effect on the quality of the human environment and are
    categorically excluded from environmental processing, and thus do
    not ordinarily require the preparation of an EA by the applicant or
    the preparation of an EIS by the agency.[^36] Even if a proposed
    action is of the type that is categorically excluded under the
    rules, however, the Commission will require the preparation of an EA
    if it determines that particular action may have a significant
    environmental impact.[^37]

10. Section 1.1307(a)(3) provides that an EA is required for proposed
    facilities, including communications towers, 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 are 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.[^38] Thus, applicants and licensees are routinely required to
    evaluate their tower projects, prior to construction, for effects on
    birds that are endangered, threatened, or otherwise subject to
    Section 1.1307(a)(3), and to file an EA if the terms of Section
    1.1307(a)(3) are met. The Commission's rules authorize Commission
    licensees and applicants and their representatives to contact the
    Department of the Interior to determine whether their facilities
    will affect threatened or endangered species or designated critical
    habitats.[^39] With respect to other birds, such as migratory birds,
    routine evaluation is not required, but an EA shall be required
    pursuant to Section 1.1307(c) or (d) if the Bureau processing an
    otherwise categorically excluded action finds, in response to a
    petition or on its own motion, that the proposed construction may
    have a significant environmental impact. The Commission has acted,
    under Section 1.1307(c), to consider the impact that proposed
    construction would have on migratory birds.[^40]

11. Thus, the Commission's environmental rules require licensees,
    license applicants, and others subject to those provisions to
    evaluate, prior to construction, whether a proposed tower within one
    of the specified categories of facilities may have significant
    environmental impact.[^41] In those instances where a site-by-site
    license, construction permit, or antenna structure registration is
    required for the facility, the entity must certify compliance with
    the environmental rules on the appropriate application form.[^42] If
    an EA is not required, the party may proceed with the project
    without providing any environmental documentation to the
    Commission.[^43] However, if there would be a potential
    environmental impact, an EA must be submitted with the application
    for the Commission to determine if the action would have a
    significant impact on the environment.[^44] If the Commission makes
    a FONSI, the environmental review process is complete. If the
    Commission finds the proposed construction would have a significant
    effect upon the quality of the human environment, the applicant may
    not proceed until the Commission prepares an EIS.[^45]

## The Notice of Inquiry (*NOI)* 

12. The Commission's *NOI*, released in August 2003, initiated an
    inquiry to gather comment and information on the impact that
    communications towers may have on migratory birds. Specifically, the
    Commission sought comment on three general areas: the current state
    of scientific information about the impact that communications
    towers may have on migratory bird populations; the need for and
    scope of additional study; and suggested methods to minimize impacts
    of communications towers on migratory birds.[^46]

13. To the extent commenting parties identified scientific research on
    migratory bird deaths attributable to collisions with communications
    towers, the *NOI* asked whether the research was conducted in a
    scientifically rigorous manner and included effective protocols and
    standard metrics that could provide a uniform analysis of results
    from all towers for comparative purposes.[^47] The *NOI* also asked
    whether there was scientific research regarding the role that
    specific factors, such as lighting, height and type of antenna
    structure, weather, location, physiographic features of sites, and
    migration paths, may have with respect to increasing or decreasing
    the incidence of such collisions.[^48]

14. The *NOI* next inquired whether additional research is necessary,
    and if so, how it should be conducted. For example, the *NOI* asked
    what variables the research should address, including lighting
    schemes, tower height, antenna structure, location, and different
    weather conditions. The *NOI* requested information on how many
    migration seasons should be studied and what types of procedures and
    protocols should be used to monitor bird deaths. The *NOI* also
    sought comment on who should be the appropriate party to fund,
    design, and conduct any study.[^49]

15. Finally, the *NOI* requested comment on particular methods that
    could minimize the impact communications towers might have on
    migratory birds. The *NOI* asked commenters to identify particular
    mitigation methods and discuss the extent to which they have been
    used on communications towers or other similar structures, and
    quantify the results of their use. The *NOI* also sought comment
    specifically about the guidelines that the FWS developed, and
    recommended for voluntary use by companies, in an effort to minimize
    the impact of communications towers on migratory birds.[^50] The FWS
    Guidelines advise, 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 lighting that the
    FAA recommends for aviation safety. The *NOI* asked whether the
    current state of scientific knowledge supports the use of the FWS
    Guidelines generally, or any specific parts of them. The *NOI*
    inquired whether those Guidelines or other measures to protect
    migratory birds might impact the delivery of communications services
    such as the transition to digital television and the use of radio
    transmitters by state and local public safety entities. The *NOI*
    also sought comment on whether imposing guidelines or restrictions
    might impact homeland security objectives.[^51]

16. *Parties supporting Commission action.* FWS argues that the broad
    statutory language of the MBTA prohibits any unintended death of
    even one migratory bird caused by a collision with a communications
    tower.[^52] With regard to the state of scientific information, FWS
    acknowledges that there is no standard research protocol to study
    mortality events at communications towers[^53] and contends that
    only a broad cumulative impacts study would assess the whole
    situation.[^54] FWS claims, however, there has been a recent
    dramatic increase in migratory bird deaths as a result of the
    exponential growth in communications tower construction that began
    in the 1990s.[^55] The agency estimates that collisions with
    communications towers are responsible for at least 4 to 5 million
    bird deaths per year, and that if a proper cumulative impact study
    were conducted it might indicate the number to be closer to 50
    million per year.[^56] With regard to measures to reduce migratory
    bird deaths, FWS urges communications tower constructors and
    licensees to comply with its voluntary tower construction
    guidelines.[^57]

17. The American Bird Conservancy, Forest Conservation Council, and
    Friends of the Earth filed a joint comment in which they contend
    that, by not taking steps to mitigate migratory bird collisions, the
    Commission has failed to comply with NEPA, the MBTA, and the
    ESA.[^58] These groups argue that NEPA requires the Commission to
    prepare a Programmatic Environmental Impact Statement concerning the
    impact of communications tower collisions on migratory birds.[^59]
    They further urge the Commission to add migratory birds to the list
    of impacts for which EAs are required under 47 C.F.R § 1.1307.[^60]
    The groups assert that, over the years, scientists have reported
    several instances of mass avian mortality at communications towers,
    and "that reported kills represent only the tip of an iceberg as the
    vast majority of tower sites are never checked for mortality."[^61]
    They also contend that in poor visibility conditions, migratory
    birds are especially attracted to red steady lights.[^62] To
    minimize migratory bird collisions with communications towers, the
    groups contend that the FCC should adopt the measures in the FWS
    guidelines.[^63]

18. In their responses to the *NOI*, the Chickasaw Nation and Eastern
    Band of Cherokee Indians assert that migratory birds are important
    to these tribes because of their cultural or religious
    significance.[^64] The Nunakauyak Traditional Council explains that
    migratory birds are an important part of that tribe's diet during
    the spring and summer seasons. Consequently, the tribe is concerned
    about migratory bird kills because the declining populations are
    resulting in hunting and egg gathering restrictions.[^65] Therefore,
    these tribes support Commission rules and efforts to protect
    migratory birds.[^66]

19. *Parties opposing Commission action.* Licensees, tower owners and
    constructors, and trade associations responding to the *NOI* oppose
    any amendments to the Commission's rules, or imposition of other
    restrictions on tower siting and construction, in order to mitigate
    migratory bird collisions with communications towers. As an initial
    matter, these commenters generally contend that the MBTA should not
    be interpreted so broadly as to prohibit incidental bird deaths at
    communications towers.[^67] CTIA and NAB further argue that the
    Communications Act does not give the Commission authority to impose
    tower siting and construction restrictions to protect migratory
    birds. They also claim that neither NEPA nor the ESA authorizes any
    Commission action because those environment protection statutes
    apply only to federal actions and tower siting and construction are
    primarily private actions.[^68]

20. Addressing the substance of the inquiry, CTIA and NAB contend that
    NEPA does not provide the Commission with a sufficient legal basis
    for acting because it applies only to actions that "significantly
    affect the environment" and the record does not establish that the
    impact of communications towers on migratory birds significantly
    affects the environment.[^69] CTIA and NAB state that, even assuming
    that FWS is correct that communications towers cause 5 million
    migratory bird deaths per year, FWS also estimates that there are at
    least 10 billion migratory birds nationwide. Using those estimates,
    CTIA and NAB calculate that communications towers would account for
    only a 0.05 percent reduction of the migratory bird population each
    year, and argue that is not a significant enough impact on the
    environment to support any requirements under NEPA.[^70]

21. CTIA and NAB submitted a study prepared by Woodlot Alternatives,
    Inc., an environmental consulting firm, to further support their
    argument that existing evidence is insufficient to show that
    collisions with towers have a significant impact on migratory birds.
    The Woodlot study found, among other things, that the quality of the
    information in the existing studies varied widely and there did not
    appear to be any standard method for collecting data.[^71] Woodlot
    notes that certain factors, such as weather, lighting, and seasonal
    migration patterns, are reported to be more significant than others,
    but "\[d\]ue to the incidental and biased nature of these reports it
    is not possible to examine specific factors that have contributed to
    avian mortality."[^72] AT&T Wireless, Cingular, SBC, PCIA, Sprint,
    and NATE agree with CTIA and NAB that there is insufficient
    scientific evidence to support Commission action to protect
    migratory birds.[^73]

## The Avatar Report and Comments

22. To assist the Commission in its evaluation of the scientific studies
    and comments received in response to the *NOI* -- as well as to
    identify and help the Commission assess additional studies that were
    available -- the Commission retained Avatar, an environmental risk
    consulting firm, in May 2004. The Commission asked Avatar to
    determine if the studies were sufficient to support any conclusions
    about the three overarching issues raised by the *NOI*: (1) whether
    collisions with communications towers have an adverse impact on the
    viability of migratory bird species; (2) what role certain factors
    (*i.e.*, migration patterns, bird behavior, tower configuration,
    tower siting, tower lighting, and weather) have on the increasing or
    decreasing number of such collisions; and (3) whether certain
    measures might minimize the impacts of tower construction on
    migratory birds. Avatar submitted its findings and recommendations
    in September 2004.[^74]

23. Avatar explained that "\[a\]lthough most of the causes and possible
    solutions for increased avian mortalities associated with
    communication structures remain speculative, a few conclusions have
    been advanced with some degree of confidence within the scientific
    community studying this problem."[^75] Specifically, Avatar opined
    that the existing state of knowledge tends to support the following:

```{=html}
<!-- -->
```
(1) The greatest bird mortality tends to occur on nights with low
    visibility conditions, especially fog, low cloud ceiling, or other
    overcast conditions.

(2) All other things being equal, taller towers with lights tend to
    represent more of a hazard to birds than shorter, unlit towers.

(3) Towers with guy wires create higher risks than self-supporting
    towers.

(4) Two collision mechanisms appear to be a factor in bird
    collisions: (1) blind collision and (2) illuminated sphere of
    influence.[^76]

(5) Certain avian families tend to be more affected than others, among
    them vireos, warblers, and thrushes.

(6) The seasonal pattern exhibits a pronounced collision spike during
    fall migration and another smaller spike during spring migration.
    However, bird collisions with towers can occur any time of the year
    under any weather condition.

(7) There are no studies to date that demonstrate an unambiguous
    relationship between avian collisions with communications towers and
    population decline of migratory bird species.

(8) Although biologically significant tower kills have not been
    demonstrated in the literature, the potential does exist, especially
    for threatened and endangered species.

(9) More research is warranted in order to identify specific causes and
    possible solutions to this problem.[^77]

```{=html}
<!-- -->
```
24. Avatar made a number of short-term and long-term recommendations for
    the Commission in order to promote meaningful research into the
    factors that contribute to migratory bird collisions with
    communications towers, and ultimately translate the results of that
    research into action.[^78] The short-term recommendations included:
    continue to work with the Communications Tower Working Group;[^79]
    initiate dialogue with research entities and the telecommunications
    industry to identify the most appropriate research approaches and
    mechanisms to develop standardized methods and metrics for data
    collection and monitoring; study how differences between bird
    species might contribute to the susceptibility of certain bird
    species to tower collisions; and encourage research on potential
    measures that might mitigate avian mortality, particularly mass
    mortality, at communications towers.[^80] Avatar's long-term
    recommendations included: incorporate the results of current studies
    into the Commission's review of tower applications; conduct
    laboratory-controlled studies into avian vision; and adapt the
    Potential Impact Index, which FWS uses to assess the impact of the
    locations of wind turbines on the environment, for use with
    communications towers.[^81]

25. In December 2004, the Wireless Telecommunications Bureau issued a
    Public Notice requesting comment on Avatar's findings and
    recommendations.[^82] The comment period elicited 22 responses.[^83]
    In these comments, FWS, bird advocates, licensees, tower owners, and
    constructors alike state that Avatar's findings do not change their
    respective initial positions in response to the *NOI* as to whether
    the Commission should modify its rules to minimize the impact that
    communications tower collisions have on migratory birds.

26. FWS agrees with many of Avatar's findings and recommendations,
    particularly Avatar's proposal for a comprehensive guidance document
    that would provide standardized research approaches, protocols, and
    problem-solving tools.[^84] FWS also concurs with Avatar's
    recommendation that researchers must develop baseline information on
    migratory bird vision traits, densities, movements, altitudes, and
    behaviors during migration near tower sites.[^85] FWS contends,
    however, that Avatar's conclusion that "biologically significant
    tower kills have not been demonstrated" is ambiguous and can be
    misinterpreted.[^86] Given the existence of documented instances in
    which thousands of birds have been killed at one communications
    tower, and in the absence of meaningful study as to the impact of
    such incidents on migratory bird populations, FWS argues that Avatar
    should have been more cautious in suggesting that evidence fails to
    show a relationship between avian collisions with communications
    towers and population decline of migratory bird species.[^87]

27. The American Bird Conservancy, Forest Conservation Council, Humane
    Society, and Defenders of Wildlife, in their joint comments on the
    Avatar report, attach a technical report from an environment
    consulting firm, Land Protection Partners (LPP), that similarly
    criticizes aspects of the Avatar report. LPP contends that Avatar
    failed to present a coherent analysis before defining the term
    "biological significance."[^88] LPP argues that Avatar should have
    assessed biological significance per species. LPP presents an
    analysis in which it concludes that "for the ten avian species
    killed most frequently at towers, total annual mortality is
    estimated to be from 490,000 to 4.9 million birds for each species."
    In arriving at its estimates, LPP begins with a 2000 report,
    provided by the American Bird Conservancy, that compiled 47 studies
    from 31 states and two Canadian provinces which reported a total of
    184,797 migratory birds killed from 74 different species. LPP
    calculates the percentages of the total bird deaths from each
    species. LPP then multiplies those percentages by the low end (four
    million) and high end (50 million) of FWS' estimated range of total
    annual mortality of migratory birds to arrive at its estimate of
    deaths per migratory bird species per year.[^89] The American Bird
    Conservancy, Forest Conservation Council, Humane Society, and
    Defenders of Wildlife argue that the LPP report strongly supports
    the use of FWS guidelines, particularly the recommendations that:
    antennas should be collocated on existing structures to the extent
    possible; towers should be shorter than 200 feet AGL; towers should
    not use guy wires; and towers should not use red steady lights.[^90]
    In its reply comments on the Avatar Report, FWS also indicates
    support for LPP's analysis.[^91]

28. CTIA, NAB, PCIA, and Cingular agree with the Avatar report to the
    extent it concludes that the state of the science on avian mortality
    is insufficient to support changes to the Commission's environmental
    rules.[^92] CTIA and NAB attach to their comments a further
    technical report prepared by Woodlot contending that the conclusions
    Avatar advances with "some degree of confidence," such as that
    towers with guy wires create higher risks than self-supporting
    towers, are speculative and lack sufficient scientific basis to
    support additional regulations to protect migratory birds. These
    parties and Centerpointe further contend that Avatar should also
    have considered the impact that incidents other than collisions with
    communications towers have on the viability of migratory birds.[^93]
    In their reply comments, CTIA and NAB submit another technical
    report from Woodlot that responds to the LPP report. Woodlot argues
    that the statistical analyses LPP used to arrive at its estimate of
    annual migratory bird mortality as a result of collisions with
    communications towers are flawed, and that the materials upon which
    the analyses were based were incomplete.[^94] For example, Woodlot
    faults LPP's reliance on the 2000 compilation of data as the basis
    for its calculations because even the scientist that compiled that
    data concedes that it was "collected in an uncoordinated manner, and
    there was bias in the towers studied because only towers with bird
    mortality were studied."[^95] Woodlot also argues that, since all
    the studies in the LPP report involved towers over 600 feet AGL, it
    is inappropriate for LPP to extrapolate from this data set to
    predict the effects that shorter towers might have on migratory
    birds.[^96]

29. In its reply comments, Centerpointe argues that an important piece
    of information missing from the LPP report is population trend data.
    According to Centerpointe, the USGS North American Breeding Survey
    Trend Results show that several of the migratory bird species that
    LPP mentioned in its report (*e.g.*, fifteen species of Warblers
    including the Kirtland Warbler, nine species of Vireos, Ovenbird,
    and Common Ground Dove) have increased in population between 1982
    and 2002.[^97]

## Studies at Michigan Public Safety Communications System (MPSCS) Towers

30. Dr. Joelle Gehring also filed comments in response to Avatar's
    report.[^98] Since 2003, Gehring has been the principal investigator
    examining migratory bird collisions at several towers operated by
    MPSCS.[^99] The studies are intended to assess whether differences
    in certain features of communications towers result in differences
    in avian mortality. The MPSCS studies rely on manual searches of the
    area near communications towers, during migration seasons, for
    migratory bird carcasses. Gehring designed the studies to include
    specific protocols for conducting the searches as well as protocols
    to account for searching biases and predator biases that might lead
    to errors in counting dead birds.[^100] Gehring's comments on the
    Avatar report include interim results of the Fall 2003 and 2004
    studies. Those studies were designed to specifically assess whether
    differences in the degree of avian mortality could be attributed to
    the use or non-use of guy wires. The studies included three guyed
    towers and three unguyed towers within the height range of 380 to
    480 feet AGL. According to Gehring's interim report of the 2003 and
    2004 studies, a total of 194 migratory bird carcasses were found at
    the guyed towers during the three study seasons, compared to 14 at
    the unguyed towers.[^101]

31. Subsequent to filing comments in response to the Avatar report,
    Gehring released interim results of MPSCS studies conducted during
    the Spring 2005 and Fall 2005 migration seasons. Gehring designed
    the 2005 studies to assess whether differences in tower lighting
    systems and tower height correlated to differences in avian
    mortality, as well as to continue to assess the effect that guy
    wires may have on avian mortality.[^102] For these seasons, Gehring
    studied 12 guyed and 9 unguyed towers between 380 and 480 feet AGL,
    with four different lighting configurations at night: white strobe
    lights, red strobe lights, red blinking incandescent lights, and red
    strobe lights interspersed with steady burning red lights.[^103] In
    addition, the studies included three towers of over 1000 feet AGL
    using red strobe interspersed with steady burning red lights.
    Gehring's interim reports for the 2005 studies show, on a per-tower
    per-season basis, more than four times as many bird deaths at the
    1000-foot towers than at the 380-480 foot towers using red steady
    lights, more than three times as many deaths at the 380-480 foot
    towers using red steady lights than at towers of the same heights
    with other lighting configurations, and more than three times as
    many deaths at guyed than at unguyed towers of the same heights
    using the same lighting.[^104]

#  DiScussion

32. We seek comment on the extent of any effect of communications towers
    on migratory birds and whether any such effect warrants regulations
    specifically designed to protect migratory birds. First, we request
    comment on the legal framework governing the Commission's
    obligations in this area, and in particular the threshold necessary
    to demonstrate an environmental problem that would authorize or
    require that the Commission take action. We then examine particular
    steps the Commission might take if there is probative evidence of a
    sufficient environmental effect to warrant Commission action. With
    regard to any newly constructed or modified communications tower
    that must be registered and meet lighting specifications under Part
    17 of the Commission's rules, we tentatively conclude that medium
    intensity white strobe lights for nighttime conspicuity is to be
    considered the preferred system over red obstruction lighting
    systems to the maximum extent possible without compromising aircraft
    navigation safety. We seek comment on this tentative conclusion and
    on issues related to its implementation. We also seek comment on
    whether, based on the scientific or technical evidence before us
    concerning the impact that communications towers may have on
    migratory birds,[^105] we should adopt any additional requirements
    based on other characteristics of communications facilities,
    including the use of guy wires, tower height, the location of the
    tower, and the possibility of collocation. Finally, we request
    comment on whether to add an additional criterion for requiring an
    EA to Section 1.1307(a) of our rules.

## Legal Framework

33. As discussed above, NEPA requires federal agencies to analyze the
    impact of their proposed major federal actions on the quality of the
    human environment.[^106] CEQ's regulations define the "human
    environment" to include the natural and physical environment and the
    relationship of people with that environment.[^107] The ESA requires
    federal agencies to "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 . . . determined . . . to be critical. . . ."[^108]
    Some, but not all, species of migratory birds are protected under
    the ESA. In adopting its environmental rules, the Commission in
    accordance with its public interest responsibilities under the
    Communications Act,[^109] previously has determined that
    construction of communications towers requires compliance with
    environmental responsibilities under NEPA and the ESA.[^110]
    Moreover, although under our present rules we do not routinely
    require environmental processing with respect to migratory birds,
    the Commission has considered the impact of individual proposed
    actions on migratory birds as part of its overall responsibility
    under NEPA.[^111] In order to fulfill its obligations under NEPA and
    the ESA, the Commission has promulgated rules to address such
    issues.[^112] We tentatively conclude that the obligation under NEPA
    to identify and take into account the environmental effects of
    actions that we undertake or authorize may provide a basis for the
    Commission to make the requisite public interest determination under
    the Communications Act to support the promulgation of regulations
    specifically for the protection of migratory birds, provided that
    there is probative evidence that communications towers are adversely
    affecting migratory birds.[^113]

34. We also seek comment on what constitutes a significant effect on the
    human environment under NEPA in the context of effects on migratory
    birds.[^114] For example, does the death of some number of
    individual birds, without more, constitute a significant
    environmental impact? Must the overall population of birds as a
    whole or of particular species be negatively impacted before any
    obligation under NEPA is triggered? And if so, what size of
    population, either in migratory birds as a whole or in a particular
    species, is sufficient to trigger any legal obligation by the
    Commission?[^115] Can the Commission rely upon anecdotal evidence of
    bird kills at individual towers or must it have broader studies
    before taking action specifically for the protection of migratory
    birds? Must the Commission consider whether collisions with
    communications towers interrupt avian movement, and thereby result
    in declines in species beyond the direct losses due to
    collisions?[^116] Also, what is the relevance, if any, of other
    causes of avian mortality, such as buildings, transmission lines,
    and vehicles?[^117] How do the answers to these questions affect the
    Commission's authority, or obligation, to take action in this
    matter?

35. Apart from any possible obligation under NEPA and ESA, the MBTA
    provides that it is unlawful to "pursue, hunt, take, capture, kill,
    attempt to take, capture or kill . . . any migratory bird" unless
    permitted by FWS.[^118] Courts have rendered differing decisions
    regarding the scope of the MBTA's applicability to federal
    agencies.[^119] The Commission, however, has indicated that "it is
    not clear" whether the MBTA applies to the Commission's
    actions.[^120] Nonetheless, some commenters argue that under the
    MBTA, a party may be liable for any unintentional, incidental death
    of a migratory bird, such as through a collision with a
    communications tower.[^121] Others contend that the MBTA has a
    narrower purpose to prohibit only intentional kills of migratory
    birds, such as by hunting or through a program to control migratory
    bird population.[^122] We seek comment on the nature and scope of
    the Commission's responsibilities, if any, under this statute. We
    also seek comment on whether the MBTA gives the Commission (or any
    agency other than the Department of the Interior) any authority to
    promulgate regulations to enforce its terms.[^123] If the Commission
    has statutory authority to issue regulations to enforce the MBTA,
    how could the Commission draft such regulations in a manner that
    does not impede our responsibility under the Communications Act to
    ensure the construction of communications towers that are necessary
    to meet the communications service needs of our nation?[^124] We
    seek comment on these questions.

## Possible Need for Commission Action 

36. In the *NOI*, the Commission sought comments supported by evidence
    concerning whether communications towers have any significant impact
    on migratory birds. In response, the Commission received a myriad of
    comments reflecting widely divergent views as to the degree to which
    communications towers cause migratory bird mortality. FWS estimates
    that the number of migratory birds killed by communications towers
    could range from 4 to 50 million per year.[^125] In light of these
    widely divergent views, we seek further comment supported by
    evidence regarding the number of migratory birds killed annually by
    communications towers. Where possible, commenters are encouraged to
    support their estimates with scientifically reviewed studies.

37. Understanding the scope of any problem involving communications
    towers and migratory birds is essential to devising meaningful
    solutions consistent with our responsibilities under the
    Communications Act and other federal statutes. In particular, we
    seek comment on whether the evidence concerning the impact of
    communications towers on migratory bird mortality adduced in
    response to the questions posed in paragraph 36 is sufficient to
    justify and/or authorize Commission action under the legal standards
    discussed in response to the questions posed in paragraph 34.
    Assuming sufficient evidence is developed regarding this issue, we
    may have a basis to take some of the suggested actions discussed
    below.

## Possible Commission Actions

### Lighting requirements

38. We tentatively conclude that for any newly constructed or modified
    communications tower that must meet lighting specifications under
    Part 17 of the Commission's rules, medium intensity white strobe
    lights for nighttime conspicuity is to be considered the preferred
    system over red obstruction lighting systems to the maximum extent
    possible without compromising aircraft navigation safety. We request
    comment on this tentative conclusion, and on specific ways in which
    the Commission could implement this conclusion in our policies and
    rules. We also invite comments on the possible use and benefits of
    other lighting systems, such as red strobe or red blinking
    incandescent lights, and on other related issues.

39. Several commenting parties have submitted studies indicating that
    certain lighting requirements may reduce the likelihood of bird
    collisions with tower structures. In their joint comments filed in
    response to the *NOI*, the American Bird Conservancy, Forest
    Conservation Council, and Friends of the Earth argue that "the best
    science available indicates that particularly in poor visibility
    weather conditions at night, lights on towers (especially solid
    state red lights) disrupt a neo-tropical migratory bird's celestial
    navigation system and perhaps its magnetic navigation system."[^126]
    FWS similarly asserts that lighting appears to be a "key attractant
    for night migrating songbirds, especially on nights with poor
    visibility,"[^127] although it adds that further research is needed
    on the extent to which lighting contributes to migratory bird
    collisions with communications towers.[^128] Subsequently, Gehring
    presented interim reports of the 2003 through 2005 studies at the
    Michigan PSCS towers. Those interim reports indicate that comparable
    numbers of bird carcasses were found when only red strobe or only
    white strobe lights were used, irrespective of the towers' heights
    and the presence of guy wires. The interim reports also indicate
    more bird carcasses were found at towers using red steady lights
    with red strobe lights than at towers using only red strobe, white
    strobe, or red blinking incandescent lights.[^129]

40. Section 303(q) of the Communications Act of 1934, as amended, vests
    in the Commission the authority to require painting and/or lighting
    of antenna structures which may constitute a hazard to air
    navigation.[^130] Part 17 of the Commission's rules sets forth
    procedures for implementing this authority.[^131] Specifically, if a
    proposed construction or modification of a communications tower
    would be more than 60.96 meters (200 feet) in height above ground
    level (AGL), or meet certain other conditions detailed in Section
    17.7 of our rules (such as proximity to an airport),[^132] our rules
    (as well as the FAA's rules) require the entity proposing such
    construction or modification to notify the FAA.[^133] If the FAA
    determines, in accordance with its applicable Advisory Circular(s),
    that the construction or alteration is one for which lighting or
    marking is necessary for aircraft navigation safety, the FAA sends
    an acknowledgement to the antenna structure owner that contains a
    statement to that effect and information on how the structure should
    be marked and lighted.[^134] This acknowledgment is the FAA's
    determination of "no hazard," meaning that the FAA has determined
    that the structure will pose no hazard to aircraft so long as it is
    marked and/or lighted in accordance with the FAA's specifications.
    The antenna structure owner must register the structure with the
    Commission prior to construction by submitting FCC Form 854 together
    with the FAA's "no hazard" determination.[^135] Unless the
    Commission specifies otherwise, the FAA's specifications for marking
    and/or lighting on the antenna structure are then made part of the
    owner's FCC antenna structure registration, and the owner is
    required to maintain the marking and/or lighting in accordance with
    those specifications.[^136] The FAA's current standards pertaining
    to tower lighting specifications to promote aviation safety are set
    forth in Advisory Circular 70/7460-1K ("Obstruction Marking and
    Lighting").[^137] The FAA's recommendations can vary depending on
    characteristics of the tower, terrain, and location, and may permit
    antenna structure owners to choose among different types of lighting
    systems, including red steady (red solid state), red strobe
    interspersed with red steady, or white lights.[^138]

41. In April 2004, in response to a request by the American Bird
    Conservancy to minimize mortality to migratory birds, the FAA issued
    an internal memorandum providing guidance on the FAA's issuance of
    lighting recommendations set forth in Advisory Circular
    70/7460-1K.[^139] Specifically, as interim guidance, the FAA's
    Program Director for Air Traffic Airspace Management directs
    Regional Air Traffic Division Managers that use of medium intensity
    white strobe lights for nighttime conspicuity is to be considered
    the preferred system over red obstruction lighting systems when
    feasible and to the maximum extent possible in cases in which
    aviation safety would not be compromised.[^140] The memorandum
    references the *NOI* and notes that the Commission may later provide
    some guidance on what, if any, then existing standards regarding the
    effects of communications towers on migratory birds were in need of
    review and study. The memorandum also states that, from a safety
    perspective, the standards and guidance set forth in the existing
    Advisory Circular 70/7460-1 continue to be necessary to
    appropriately light obstacles and to avoid creating hazardous
    conditions for pilots. Finally, in accordance with that Advisory
    Circular, the memorandum points out that the use of white lights for
    nighttime conspicuity within three nautical miles of an airport or
    in populated urban areas is discouraged as a lighting
    recommendation.[^141] In their joint comments on the Avatar Report,
    the American Bird Conservancy, Forest Conservation Council, Humane
    Society, and Defenders of Wildlife urge the Commission to adopt the
    FAA's preference for white strobe lighting as set forth in the April
    2004 memorandum.[^142]

42. We tentatively conclude that under the Commission's Part 17 rules,
    consistent with the FAA's memorandum, the use of medium intensity
    white strobe lights for nighttime conspicuity is to be considered
    the preferred lighting system over red obstruction lighting systems
    to the maximum extent possible without compromising aircraft
    navigation safety. We base this tentative conclusion on the FAA's
    recommendation of such lighting where it will not compromise
    aircraft navigation safety, the evidence suggesting that white
    strobe lights may create less of a hazard to migratory birds, and
    the absence of record evidence that use of white strobe lighting
    would have an adverse impact on communications facilities
    deployment. We seek comment on this tentative conclusion, including
    whether its implementation would result in reducing the incidence of
    migratory bird mortality associated with communications towers as
    well as any burdens such a requirement would impose on tower owners,
    or on the public, and whether alternatives may be available or
    preferable. We also seek comment on our statutory authority to
    implement this tentative conclusion.

43. In the event we adopt our tentative conclusion, we seek comment
    specifically on how best to implement this policy. For instance,
    should we revise Section 17.23 of our rules[^143] to establish that,
    unless otherwise specified by the Commission, each new or altered
    registered antenna structure must use medium intensity white strobe
    lights for nighttime conspicuity if the FAA determines that the use
    of such lights would not impair the safety of air navigation and
    recommends their use? We note that Section 17.23 of our rules
    currently references two FAA Advisory Circulars (AC 70/7460-1J, as
    revised in 1996, and AC 150/5345-43E, as revised in 1995).[^144]
    Given that one of these Advisory Circulars (AC 70/7460-1J)
    subsequently has been updated with a newer version (AC 70/7460-1K),
    we seek comment on how we should revise Section 17.23. We further
    invite comment on whether any rule revisions we may adopt should be
    written in such a manner as to accommodate later changes in the FAA
    Advisory Circulars without a future change in our rules. We also ask
    for comment on whether, to the extent we determine to adopt
    additional lighting guidance in our rules, revisions to other
    provisions of Part 17 or elsewhere in our rules are necessary. We
    encourage commenters to suggest specific language and discuss its
    benefits and drawbacks.

44. In addition, we invite commenters to consider the possible use and
    benefits of lighting systems other than red steady and medium
    intensity white strobe. We note that the FAA Advisory Circular
    pertaining to tower lighting does not currently permit the use of
    red strobe or red blinking incandescent lights without the use of
    red steady lights.[^145] The American Bird Conservancy, however, has
    recently argued that recent and past research, including the
    preliminary results from the Michigan study, suggests that "the
    critical element in lighting towers and other structures is to use
    strobe lighting for night time conspicuity exclusively, and not to
    use red steady burning lights."[^146] Thus, noting that the FAA does
    not recommend the use of white strobe lights under some
    circumstances, the American Bird Conservancy now asserts that either
    white or red strobe lighting is desirable.[^147] We seek comment on
    the significance of the existing research, and whether, given the
    FAA's existing Advisory Circular, we should modify our proposed rule
    to account for the possible use of red strobe lights or red blinking
    lights without red steady lights. If the final results of the
    Michigan study are consistent with the preliminary results and are
    borne out by a final report, would the results provide sufficient
    scientific basis on which to conclude that use of red strobe or red
    blinking lights might reduce bird mortality levels to the same or
    similar degree as white strobe lights? We also seek comment on
    whether there are other studies that have been designed to assess
    the different effects on avian mortality of these different lighting
    systems and whether there is a need for any further studies. If
    other studies exist, what are their results? Do they support the
    adoption of our tentative conclusion regarding the use of white
    strobe lights? Or, would the studies support giving tower
    registrants the option of using red strobe or red blinking
    incandescent lights as an alternative to white strobe lights, to the
    extent consistent with aircraft navigation safety and endorsed by
    the FAA?

45. We also seek comment regarding the economic, environmental, and any
    other costs of a requirement to use white strobe lights when
    compared with other lighting alternatives. In particular, what would
    be the specific economic impact on licensees and tower owners and
    constructors, including small businesses, of adopting such a
    requirement? What are the comparative costs and longevity of white
    strobe lighting systems versus the other lighting systems identified
    in this section? What other factors are relevant to assess the
    impact that requiring medium intensity white strobe lighting would
    have on licensees and towers owners and constructors? To the extent
    white strobe lighting would increase the cost of constructing or
    maintaining towers, we further seek comment on the effect this would
    have on communications service deployment, homeland security, and
    public safety.

46. We also note that Section 1.1307(a)(8) provides that construction of
    antenna towers and/or supporting structures that are to be equipped
    with high intensity white lights, which are to be located in
    residential neighborhoods, is an action that may significantly
    affect the environment and thus requires the preparation of an EA by
    the applicant.[^148] Further, the April 2004 FAA memorandum notes
    that in accordance with the Advisory Circular, the use of white
    lights for nighttime conspicuity within three nautical miles of an
    airport or in populated urban areas is discouraged as a lighting
    recommendation.[^149] We invite comment supported by evidence on
    whether medium intensity white strobe lighting would impose an
    environmental impact on neighboring residents or have other adverse
    consequences, and if so, how we should weigh these competing public
    interest considerations in determining whether to adopt any guidance
    relating to tower lighting.

47. Finally, we seek comment on what, if any, action we should take
    regarding the lighting of existing towers. We invite comment on both
    the benefits and costs of any such action. We note that this may
    also require modifying licenses pursuant to Section 316 of the
    Communications Act, as well as the approval of the FAA and the
    re-issuance of any no-hazard determinations. Considering the costs
    and benefits and the need for the FAA to approve changes, if we were
    to take any action regarding existing towers, how should such a
    requirement be implemented? Should we require medium intensity white
    strobe lights when the red obstruction lights burn out and need to
    be replaced? Would such an approach be consistent with the FAA's
    applicable Advisory Circular? Should we seek a transition of all
    existing towers to medium intensity white strobe lights, to the
    extent permitted by the FAA, within a specific time frame, such as
    five years from the date of adoption of the tentative conclusion as
    a rule? We seek comment on these questions, as well as upon other
    alternatives to our proposed rule.

### Use of Guy Wires

48. We next seek comment on whether we should adopt any requirements
    governing the use of guy wires because of the potential impact posed
    to migratory birds. In its September 2004 report, Avatar concluded
    that, based on the studies it analyzed, it appears that "\[t\]owers
    with guy wires are at higher risk \[to birds\] than self-supporting
    towers."[^150] Avatar also stated, however, that at the time of its
    report there were "\[n\]o specific studies comparing avian
    collisions between guyed and self-supporting structures."[^151] In
    their joint comments, American Bird Conservancy, Forest Conservation
    Council, the Humane Society, and Friends of the Earth assert that
    birds are killed not only by colliding with towers but also by
    flying into guy wires that support the towers.[^152] Gehring's
    interim reports on the Michigan towers, presented subsequent to the
    Avatar report, suggest that towers with guy wires had more avian
    mortality than towers of similar height with no guy wires.[^153]

49. In light of this record, we request comment on several questions
    relevant to whether these concerns are significant enough to justify
    the Commission's adoption of rules relating to the use of guy wires.
    In addressing these questions, commenters should also comment on
    whether, to the extent we adopt our tentative conclusion regarding
    tower lighting, there might still be a need to adopt requirements
    regarding the use of guy wires.

50. First, we seek comment on whether the scientific record supports
    limiting the use of guy wires. Are there additional scientific
    studies that illuminate the relationship between avian mortality and
    the use of guy wires? If so, how conclusive are those studies, and
    what do they show? To the extent it can be shown that guy wires do
    increase the number of migratory bird collisions with communications
    towers, is the increase in the number of collisions also related to
    the type of lighting used, such that the number of collisions would
    be mitigated if we were to adopt our tentative conclusion that
    medium intensity white strobe lights for nighttime conspicuity is to
    be considered the preferred lighting system over red obstruction
    lighting systems?

51. We also request information on engineering and economic factors
    relevant to the use of guy wires. Is there a height threshold above
    which guy wires are generally necessary, and if so, what is that
    height? Does the calculus vary depending on soil conditions or other
    factors? To what extent are towers utilizing guy wires necessary to
    the provision of various licensed services, and what economic
    factors may affect the decision whether to use guy wires?

52. We also request comment on any additional consequences that may
    result from regulation relating to guy wires. For instance, if we
    were to limit the use of guy wires, what would be the impact on
    tower construction and the deployment of communications services
    generally? Would tower constructors need to erect towers of the same
    height but with a larger physical footprint, a greater number of
    shorter towers to provide equivalent service, or some combination
    thereof? To what extent would either non-guyed tower designs or
    greater proliferation of towers result in creating additional
    adverse impact on environmental matters that do not pertain to
    migratory birds, such as historic properties, wetlands, or
    endangered species?

53. We ask commenters to address how we might balance these various
    scientific, engineering, economic, and other factors, in determining
    what, if any, standards should govern the use of guy wires. We
    encourage commenters to suggest specific tests for when the use of
    guy wires may be suspect, and to justify those tests based on
    objective evidence. Commenters should also address how any standards
    should be implemented. For example, if we adopt standards regarding
    the use of guy wires, should we mandate that all towers, or all
    towers meeting certain criteria, meet those standards without
    exception? Alternatively, should we permit towers with guy wires
    upon filing of an EA and issuance of a FONSI, or upon certification
    that no reasonable alternative (e.g., use of non-guyed towers or
    collocation) was available?[^154] We seek comment regarding both the
    benefits and the costs of these and alternative regimes.

54. We specifically seek comment on whether to adopt requirements
    relating to marking of guy wires. Avatar reported that one of the
    "most effective ways to reduce avian mortality is to mark \[wires\]
    to make them more visible,"[^155] and that the effectiveness of
    methods that mark overhead electric power lines and target certain
    species of birds is well documented.[^156] Therefore, Avatar
    concluded that wire marking "may increase guy wire visibility
    thereby reducing the collision risk for some birds,"[^157] and
    discussed several currently available devices such as bird flight
    diverters.[^158] Avatar also explained, however, that "from an
    engineering perspective," wire marking is not "always a good
    solution" because devices "that physically enlarge the wire commonly
    act as wind-catching objects and may increase the risk of wire
    breaks due to line tension, vibration, and stress loads."[^159]

55. We seek comment on the effectiveness of wire markings in mitigating
    migratory bird collisions with communications towers. In particular,
    we invite information about past or ongoing scientific studies into
    the effectiveness of wire markings on communications towers. To the
    extent studies have been conducted on other types of structures, how
    relevant are they to communications towers? Commenters who advocate
    a marking requirement should address which types of marking devices
    are most effective, and how they should be used. We also invite
    comment regarding the engineering feasibility and financial cost of
    marking requirements, for both existing and new towers. If the
    Commission were to adopt a wire marking requirement, how could we do
    so in a manner that imposes minimal burdens on license applicants
    and communications tower owners and constructors?

### Tower Height

56. We seek comment on whether to adopt any requirements relating to the
    height of communications towers in order to minimize the impact of
    such towers on migratory birds. Avatar found that "all other things
    being equal, taller towers with lights tend to represent more of a
    hazard to birds than shorter, unlit, towers."[^160] FWS's voluntary
    guidelines recommend that communications towers be shorter than 200
    feet if possible to avoid, in most instances, the requirement that
    the towers have aviation safety lights.[^161] Conservation groups
    argue that the Commission should restrict the heights of
    communications towers because doing so would minimize the presence
    of two features that are most harmful to birds, lights and guy
    wires.[^162]

57. We request comment regarding the relevant costs and benefits of
    adopting any requirements relating to tower height. For example,
    would limitations on tower height hinder the deployment of certain
    types of services, including public safety communications? Would
    such requirements adversely affect the availability of service in
    certain geographic locations, such as rural areas? Would
    requirements governing tower height lead to a greater number of
    towers, and if so, to what extent would this impact historic
    properties, wetlands, endangered species, or other environmental
    values? We welcome specific information regarding any such
    disadvantages of rules relating to tower height, as well as the
    benefits. We also ask commenters to address whether, to the extent
    we adopt our tentative conclusion regarding tower lighting, there
    would be a need to adopt any requirements relating to tower height.

58. We also seek comment on how any requirements relating to tower
    height should be implemented. In particular, we ask commenters that
    advocate height regulations to consider what tower height should
    trigger any rules. Should we regulate towers over 200 feet in order
    to minimize the use of lights? Is there some other threshold above
    which towers are more likely to have a significant effect on
    migratory birds?[^163] Finally, we seek comment on what procedural
    requirements we should apply to towers that exceed any specified
    height threshold, such as a certification of need or requirement to
    file an EA.

### Tower Location

59. We seek comment on whether towers located in certain areas might
    cause a sufficient environmental impact on migratory birds such
    that, when considered with other relevant factors, some Commission
    action might be justified. In the *NOI*, the Commission requested
    scientific research and other data "concerning the impact on
    migratory birds of communications towers located in or near specific
    habitats, such as wetlands."[^164] The *NOI* asked whether "towers
    on ridges, mountains, or other high ground have a differential
    impact on migratory bird populations." The *NOI* also sought comment
    on the impact on migratory birds of towers located in areas with a
    high incidence of fog, low clouds, or similar obscuration, or in
    proximity to coastlines and major bird corridors.[^165] In response
    to the *NOI*, some commenters presented arguments and rationales why
    communications towers should not be sited in certain locations such
    as migratory bird habitats or in migration corridors on
    ridgelines.[^166] Although Avatar noted some degree of confidence
    within the scientific community that the "greatest bird mortality
    tends to occur on nights with low visibility conditions, especially
    fog, low cloud ceiling, or other overcast conditions," it reached no
    similar findings with regard to the effect that locating towers on
    ridges, or in wetlands, might have on avian mortality.[^167] In
    addition, Land Protection Partners discussed a "multi-modal research
    study in New Hampshire" that it claimed "revealed the effect of
    topography of the Appalachian Mountains on migratory birds,
    including neo-tropical migrants."[^168] We seek information on
    whether there are additional scientific studies that have examined
    the effect that locating communications towers in different areas,
    with different weather conditions, might have on avian mortality
    and, if so, what if any requirements we should adopt on the basis of
    such studies.

### Collocation

60. We request comment on whether the Commission should adopt additional
    requirements to promote collocation.[^169] We note that FWS,
    American Bird Conservancy, and several other commenters argue that
    the Commission should strongly encourage license applicants to
    collocate their antennas on existing structures to the extent
    possible.[^170] We seek comment and information relevant to whether
    we should adopt policies that would promote more extensive use of
    collocation. If we do adopt regulations to promote collocation, we
    seek comment on what form those regulations should take.
    Possibilities could include, for example, a requirement to certify
    that collocation opportunities are unavailable and/or describe
    collocation alternatives that the licensee explored. We ask
    commenters to discuss the benefits and costs of these and
    alternative forms of regulation, including burdens on small
    businesses and possible impacts on the delivery of public safety and
    homeland security services. We also ask commenters to assess the
    need for such regulation to the extent we adopt our tentative
    conclusion that the use of medium intensity white strobe lights for
    nighttime conspicuity is to be considered the preferred lighting
    system over red obstruction lighting systems.

### Section 1.1307

61. We seek comment as to whether to amend Section 1.1307(a) of our
    rules to routinely require environmental processing with respect to
    migratory birds. Section 1.1307(a) currently identifies eight
    different criteria that, if present, establish that a proposed
    facilities construction "may significantly affect the environment"
    and therefore requires preparation of an EA.[^171] The American Bird
    Conservancy, Forest Conservation Council, Friends of the Earth, and
    the Humane Society argue that, considering the evidence of mass bird
    mortalities at communications towers, the Commission should also
    expressly require an EA for proposed facilities that would have
    potential effects on migratory birds.[^172] We note that the
    Commission's rules already provide for consideration of factors not
    identified in Section 1.1307(a), including those that pertain to a
    facility's effect on migratory birds, to the extent the Commission
    independently determines that there may be a significant
    environmental effect in a particular case.[^173]

62. We seek comment regarding the appropriate methodology for making
    such a determination, as well as the level of probative evidence
    necessary to support such a determination. We note, for example,
    that Avatar found in its 2004 report that there were no studies to
    date that "demonstrate\[d\] an unambiguous relationship between
    avian collisions with communication towers and population decline of
    migratory bird species."[^174] Is the current state of scientific
    evidence insufficient to require routine assessment of such an
    effect? Or, to the contrary, is the evidence of specific incidents
    of bird collisions with towers, such as extrapolations that estimate
    the total number of these collisions, sufficient to support a
    required assessment for some or all towers? Are there other factors
    the Commission should consider in determining the proper treatment
    of the effect on migratory birds under the Commission's
    environmental rules?

63. We also seek comment, if we adopt an EA requirement for effects on
    migratory birds, on the types of towers to which such a requirement
    should apply. One possible approach might be to require an EA
    addressing this factor for all new tower construction. We seek
    comment as to whether the scientific evidence would support a
    general requirement of this sort, as well as the burdens it would
    impose on applicants. We also ask commenters to consider whether
    such a broadly applicable procedural requirement would reduce the
    incentive for companies to choose sites and designs that may be less
    likely to affect migratory birds. Another possibility could be to
    require an EA if a proposed construction "might affect migratory
    birds." Commenters discussing this approach should address how such
    a broadly worded requirement might be administered, and how it could
    be enforced.

64. An alternative to these general approaches may be to require an EA
    only for proposed towers that exhibit certain characteristics that
    render them more likely to harm migratory birds. For example, as
    suggested in the discussion above, we might require an EA only for
    towers that use certain lighting systems, or that require guy wires,
    or that exceed a specified height.[^175] We seek comment as to
    whether the evidence supports such criteria, and if so where the
    thresholds should be set. Are there any additional factors that
    should be considered in triggering an EA requirement, such as the
    area of the country in which the tower would be located, the local
    topography, or prevailing weather conditions? We encourage
    commenters to set forth specific proposals and to address all
    relevant considerations, including the scientific support for
    particular criteria; the effect of any such EA requirement on the
    deployment of wireless services, on homeland security, and on public
    safety; and the Commission's ability to administer any particular
    proposal if adopted. Commenters should also address both the
    effectiveness and the burdens of various approaches, including the
    impacts on small businesses.

### Other Possible Actions.

65. Finally, we seek comment on whether there are other possible
    substantive or procedural measures the Commission could take to
    minimize migratory bird collisions that are not discussed above. For
    any such possible measure, we request any available information and
    scientific research to support the effectiveness of such a measure
    at minimizing migratory bird collisions. We also request comment on
    the best way to implement such a measure so as to eliminate the
    imposition of any unnecessary costs on affected entities, including
    small businesses.

#  PROCEDURAL MATTERS

## *Ex Parte* Rules -- Permit-But-Disclose Proceeding

66. This is a permit-but-disclose notice and comment rulemaking
    proceeding. *Ex parte* presentations are permitted, except during
    the Sunshine Agenda period, provided they are disclosed pursuant to
    the Commission's Rules.[^176]

## Initial Regulatory Flexibility Act Analysis

67. As required by the Regulatory Flexibility Act,[^177] the Commission
    has prepared an Initial Regulatory Flexibility Analysis (IRFA) of
    the possible significant economic impact on small entities of the
    policies and rules proposed in this document. The IRFA is set forth
    in Appendix A. Written public comments are requested on the IRFA.
    These comments must be filed in accordance with the same filing
    deadlines as comments filed in response to this *Notice of Proposed
    Rulemaking* as set forth below in subsection D, and have a separate
    and distinct heading designating them as responses to the IRFA.

## Initial Paperwork Reduction Act of 1995 Analysis

68. This document does not contain proposed information collection(s)
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. In addition, therefore, it does not contain any new or
    modified "information collection burden for small business concerns
    with fewer than 25 employees," pursuant to the Small Business
    Paperwork Relief Act of 2002, Public Law 107-198.[^178]

## Comment Period and Procedures

69. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
    CFR §§ 1.415, 1.419, interested parties may file comments and reply
    comments on or before the dates indicated on the first page of this
    document. Comments may be filed using: (1) the Commission's
    Electronic Comment Filing System (ECFS), (2) the Federal
    Government's eRulemaking Portal, or (3) by filing paper copies. *See
    Electronic Filing of Documents in Rulemaking Proceedings*, 63 FR
    24121 (1998).

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: <http://www.fcc.gov/cgb/ecfs/> or
    the Federal eRulemaking Portal:
    [http://www.regulations.gov](http://www.regulations.gov/). Filers
    should follow the instructions provided on the website for
    submitting comments.

    -   For ECFS filers, if multiple docket or rulemaking numbers appear
        in the caption of this proceeding, filers must transmit one
        electronic copy of the comments for each docket or rulemaking
        number referenced in the caption. In completing the transmittal
        screen, filers should include their full name, U.S. Postal
        Service mailing address, and the applicable docket or rulemaking
        number. Parties may also submit an electronic comment by
        Internet e-mail. To get filing instructions, filers should send
        an e-mail to <ecfs@fcc.gov>, and include the following words in
        the body of the message, "get form." A sample form and
        directions will be sent in response.

```{=html}
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```
-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. If more than one docket or
    rulemaking number appears in the caption of this proceeding, filers
    must submit two additional copies for each additional docket or
    rulemaking number.

> Filings can be sent by hand or messenger delivery, by commercial
> overnight courier, or by first-class or overnight U.S. Postal Service
> mail (although we continue to experience delays in receiving U.S.
> Postal Service mail). All filings must be addressed to the
> Commission's Secretary, Office of the Secretary, Federal
> Communications Commission.

-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The
    filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
    deliveries must be held together with rubber bands or fasteners. Any
    envelopes must be disposed of [before]{.underline} entering the
    building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail should
    be addressed to 445 12^th^ Street, SW, Washington DC 20554.

    People with Disabilities: 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 202-418-0530 (voice),
    202-418-0432 (tty).

## Further Information

70. For further information concerning this rulemaking proceeding
    contact: Louis Peraertz, (202) 418-1879, <louis.peraertz@fcc.gov>,
    or Aaron Goldschmidt at (202) 418-7146, aaron.goldschmidt@fcc.gov,
    Wireless Telecommunications Bureau, Spectrum and Competition Policy
    Division.

# Ordering Clauses

71. Accordingly, IT IS ORDERED that, pursuant to Sections 1, 4(i),
    303(q), 303(r) of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 154(i), 303(q), 303(r), and the National
    Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., this
    *Notice of Proposed Rulemaking* IS HEREBY ADOPTED.

72. IT IS FURTHER ORDERED that pursuant to applicable procedures set
    forth in Sections 1.415 and 1.419 of the Commission**'**s Rules, 47
    C.F.R. §§ 1.415, 1.419, interested parties may file comments on the
    *Notice* *of Proposed Rulemaking* on or before \[60 days after
    publication in the Federal Register\] and reply comments on or
    before \[90 days after publication in the Federal Register\].

73. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this *Notice of Proposed Rulemaking*, including the
    Initial Regulatory Flexibility Analysis, to the Chief Counsel for
    Advocacy of the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

**APPENDIX A**

**INITIAL REGULATORY FLEXIBILITY ACT ANALYSIS**

As required by the Regulatory Flexibility Act (RFA),[^179] the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and rules proposed in this *Notice of Proposed Rule Making
(NPRM).* Written public comments are requested regarding this IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments on the *NPRM* provided in paragraph 69.
The Commission will send a copy of this *NPRM*, including this IRFA, to
the Chief Counsel for Advocacy of the Small Business
Administration.[^180] In addition, this *NPRM* and IRFA (or summaries
thereof) will be published in the Federal Register.[^181]

## Need for, and Objectives of, the Proposed Rules:

The National Environmental Policy Act of 1969 (NEPA) requires federal
agencies to establish procedures that will enable them to analyze any
potential environmental impact of actions that they undertake or
authorize.[^182] The Endangered Species Act (ESA) prohibits the taking
of any endangered or threatened species by any person unless authorized
by the U.S. Fish & Wildlife Service (FWS).[^183] The Commission has
implemented regulations to comply with NEPA and ESA in Part 1, Subpart I
of its rules.[^184] In response to the Commission's August 2003 Notice
of Inquiry in this proceeding,[^185] FWS and several other parties filed
comments in which they argued that the Migratory Bird Treaty Act
(MBTA)[^186] would prohibit the unintentional and incidental take of
even one migratory bird that died by colliding with a communications
tower. These commenters also asserted that there have been several
reports of mass migratory bird mortalities at communications towers. FWS
estimates that the number of migratory birds killed each year due to
collisions with communications towers could range from 4 to 50
million.[^187]

In this *Notice of Proposed Rulemaking* (*NPRM*), we seek comment on
whether to amend the Commission's rules to reduce the impact of
communications towers on migratory birds in accordance with these
federal statutes and in light of the concerns expressed in the *NOI*
record. We tentatively conclude that any newly constructed or modified
communications tower, which under Part 17 of the Commission's rules must
be registered with the Commission and comply with lighting
specifications, should be required to use medium intensity white strobe
lights rather than red obstruction lighting for nighttime conspicuity so
long as the Federal Aviation Administration (FAA) determines that the
use of such lights on that particular communications tower does not
impair aviation safety. We also seek comment on whether we should adopt
regulations with regard to: (1) the use of guy wires; (2) height of
communications towers; (3) the location of towers; and (4) collocation
of antennas on existing structures. Finally, we seek comment on whether
we should amend Commission rule 1.1307[^188] to include potential impact
on migratory birds as a criterion that requires the filing of an
Environmental Assessment (EA).

## Legal Basis:

We tentatively conclude that we have authority under Sections 1, 4(i),
303(q) and 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), 303(q), 303(r), and under the National
Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., to adopt the
proposals set forth in the *NPRM*.

## Description and Estimate of the Number of Small Entities to Which the Rules Will Apply:

The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted. The RFA generally defines the term "small
entity" as having the same meaning as the terms "small business," "small
organization," and "small governmental jurisdiction."[^189] In addition,
the term "small business" has the same meaning as the term "small
business concern" under the Small Business Act.[^190] A small business
concern is one which: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any additional
criteria established by the Small Business Administration (SBA).[^191] A
small organization is generally "any not-for-profit enterprise which is
independently owned and operated and is not dominant in its
field."[^192]

Nationwide, there are a total of approximately 22.4 million small
businesses, according to SBA data.[^193] A "small organization" is
generally "any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field."[^194] Nationwide, as of
2002, there were approximately 1.6 million small organizations.[^195]
The term "small governmental jurisdiction" is defined generally as
"governments of cities, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand."[^196]
Census Bureau data for 2002 indicate that there were 87,525 local
governmental jurisdictions in the United States.[^197] We estimate that,
of this total, 84,377 entities were "small governmental
jurisdictions."[^198] Thus, we estimate that most governmental
jurisdictions are small. The changes and additions to the Commission's
rules adopted in the *NPRM* are of general applicability to all FCC
licensed entities of any size that use a communications tower.
Accordingly, this *NPRM* provides a general analysis of the impact of
the proposals on small businesses rather than a service by service
analysis.

## Description of Projected Reporting, Recordkeeping and Other Compliance Requirements:

The *NPRM* solicits comment on one tentative conclusion and on five
other potential areas of modification to the Commission's regulations
regarding the siting and construction of communications towers so as to
reduce the incidence of migratory bird collisions. The *NPRM* seeks
comment on its tentative conclusion that, under the Commission's Part 17
rules, the use of medium intensity white strobe lights for nighttime
conspicuity is to be considered the preferred lighting system over red
obstruction lighting systems to the maximum extent possible without
compromising aircraft navigation safety. The *NPRM* also requests
comment on whether we should impose regulations relating to the use of
guy wires on communications towers, the height of communications towers,
the location of communications towers, and collocation of new antennas
on existing structures. Finally, the *NPRM* seeks comment as to whether
the Commission should amend Section 1.1307(a) of our rules to expand the
circumstances under which an EA is required. Depending on the rules that
are adopted, it is possible that compliance may involve new
recordkeeping or reporting requirements.

## Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered:

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^199]

The *NPRM* seeks comment on its tentative conclusion that, under the
Commission's Part 17 rules, the use of medium intensity white strobe
lights for nighttime conspicuity is to be considered the preferred
lighting system over red obstruction lighting systems to the maximum
extent possible without compromising aircraft navigation safety. We seek
comment on the effect that such a requirement, or alternative rules,
might have on small entities. The *NPRM* also requests comment on
whether it should impose regulations relating to the use of guy wires on
communications towers, the height of communications towers, the location
of communications towers, and collocation of new antennas on existing
structures. For each of these areas, we seek comment about the burdens
that regulation would impose on small entities and how the Commission
could impose such regulations while minimizing the burdens on small
entities. Are there any alternatives the Commission could implement that
could achieve the Commission's goals while at the same time minimizing
the burdens on small entities? We will continue to examine alternatives
in the future with the objectives of eliminating unnecessary regulations
and minimizing any significant economic impact on small entities.

## Federal Rules that may Duplicate, Overlap, or Conflict with the Proposed Rules:

None.

**APPENDIX B**

**LIST OF COMMENTERS**

This is a list of parties who filed substantial comments and reply
comments within the designated comment periods in the proceeding. As
discussed in footnote 2 of this Notice of Proposed Rulemaking, this list
does not include more than three thousand concerned citizens, most of
whom are members of the National Audubon Society, who filed brief
comments both during and after the formal comment periods asking the
Commission to: comply with federal environmental statutes; immediately
implement the U.S. Fish and Wildlife Service voluntary guidelines; and
undertake extensive research into the impact that communications towers
have on migratory birds.

**Responses to Migratory Bird NOI -- Comments**

American Bird Conservancy, Friends of the Earth, and Forest Conservation
Council

American Petroleum Institute

Association of Public-Safety Communications Officials International,
Inc.

AT&T Wireless Services

Albert Caccese, Audubon New York

Cellular Telecommunications & Internet Association (CTIA) and National
Association of Broadcasters (NAB)

Chickasaw Nation

Cingular Wireless, LLC (Cingular) and SBC Communications, Inc. (SBC)

Delmarva Ornithological Society

Eastern Band of Cherokee Indians Tribal Historic Preservation Office

William R. Evans

Kenaitze Indian Tribe

Daniel McGowan

National Association of Tower Erectors (NATE)

National Audubon Society

National Wildlife Federation

Nikilaus E. Leggett

Nunakauyak Traditional Council

Personal Communications Industry Association (PCIA)

B. Sachau

Don Schellhardt, Esq.

Sprint Corporation (Sprint)

U.S. Fish and Wildlife Service (FWS)

Washington State Association of Broadcasters

**Responses to Migratory Bird NOI -- Reply Comments**

Cingular and SBC

CTIA

NAB

National Association for Amateur Radio

PCIA

United States Cellular Corporation (U.S. Cellular)

**Responses to Avatar Report -- Comments**

American Bird Conservancy, Defenders of Wildlife, Forest Conservation
Council, and Humane Society of the United States

Arizona Game & Fish Department

Paul Cardoza

CTIA and NAB

Centerpointe Communications, LLC (Centerpointe)

Cingular

FWS

Dr. Joelle Gehring

Land Protection Partners (LPP)

PCIA

S-R Broadcasting Co.

Woodlot Alternatives

**Responses to Avatar Report -- Reply Comments**

American Bird Conservancy, Defenders of Wildlife, Forest Conservation
Council, and Humane Society of the United States

Centerpointe

Cingular

CTIA and NAB

FWS

LPP

PCIA

U.S. Cellular

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

RE: Effects of Communications Towers on Migratory Birds, WT Docket No.
03-187.

Today the Commission makes good on its promise to open a rulemaking on
reducing bird deaths caused by collisions with communications towers.
The Chairman told us earlier this year he would bring such an item to us
and I commend him for following through. There is simply no question
that bird-tower collisions are a serious problem. The U.S. Fish and
Wildlife Service tells us that millions of birds, perhaps as many as 50
million, die each year through such accidents. That is a sobering
conclusion coming from the federal agency with the greatest scientific
expertise when it comes to wildlife conservation and primary
responsibility for protecting migratory birds. The situation imposes a
grave responsibility on ***this*** agency, too, because of our important
jurisdiction over tower painting and illumination -- a responsibility to
make sure that our rules and practices do not contribute to a needless
toll of bird deaths.

The Commission could have faced up to this problem years ago. Put
bluntly, for too many years this agency treated a widely-recognized
problem with not-so-benign neglect. Now we have learned, I hope, that
this is not a problem that will just go away if we ignore it. Instead,
we need to face up to the hard questions and resolve them in a timely
and effective fashion.

We are not faced here with an all-or-nothing choice. Communications
towers are essential to modern American life, we all understand that.
Without them, we could not watch television, listen to the radio, make
cell phone calls, or enjoy the next generation of wireless broadband
services. But even as the Commission fulfills its mission to facilitate
all these exciting and important technologies, we must also be mindful
of the effects we have on the nation's fragile ecosystem. The industries
we oversee are backbone industries with effects felt far and wide,
including on our environment. We need to be proactive on ecological
preservation, instead of being perceived, as we are by some, as
anti-environment or, at best, as some kind of "reluctant
environmentalist" dragged kicking and screaming into the Twenty-first
century. This kind of agency involvement is something I have pushed for
since I arrived here at the Commission in 2001. So I am pleased we are
moving in that direction. And I believe that through hard work and a
willingness to learn from both conservationists and tower operators, we
will find ways to continue encouraging communications technologies while
at the same time minimizing ecosystem costs, such as the high avian
death toll we have been witnessing. I believe our tentative conclusion
about lighting systems represents a good first step in that direction,
and I look forward to working with my colleagues to bring this
rulemaking to conclusion in the weeks and months -- hopefully not years
-- ahead. Thanks to my colleagues, and to the Bureau, for their good
work in developing this item.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

RE: Effects of Communications Towers on Migratory Birds, WT Docket No.
03-187.

I am pleased to support this Notice of Proposed Rulemaking because it
provides a thorough and thoughtful review into the potential effects of
communications towers on migratory birds. In addition, the Notice
specifically responds to my request earlier this year, during our
consideration of the "gulf coast" petition, to reengage the larger
migratory bird proceeding. This important proceeding unfortunately had
languished for some time, and I am pleased to be able to push that
review forward now.

The item before us represents a balanced look on a challenging issue.
Migratory birds are a prized natural resource. Conservation of the
migratory bird population and their habitats for future generations is
an important goal for our society. At the same time, communication
towers represent a critical component in the continued deployment of
basic and advanced telecommunications services throughout the country.
Towers not only will form the backbone of the transition to digital
television, they also are used everyday by our nation's public safety
community to effectively and timely respond to those who need our help
the most. So I am pleased that our Notice asks tough questions and
equally explores both sides of the issue so that we may best develop a
strategic approach for dealing with the impact that communication towers
have on migratory birds.

While I generally support the Notice, I did want to highlight one aspect
of the item that gives me pause. The Notice suggests that there may be
an open question about our legal authority under the National
Environmental Policy Act (NEPA) and the Communications Act to make the
requisite public interest determination to support rules specifically
for the protection of migratory birds. I, for one, am confident in our
legal authority under the NEPA and the Communications Act to take
action, if appropriate, and do not think our conclusion on this issue
should be a tentative one. I took a similarly firm position on the legal
effect of the National Historic Preservation Act in our consideration of
the Nationwide Programmatic Agreement -- a determination that was
recently upheld in the U.S. Court of Appeals for the D.C. Circuit.

Finally, I understand that there is a renewed effort by members of the
communications industry along with leading environmental and
conservation groups to discuss what can collectively be done to minimize
the impact of communications towers on migratory birds. I am very
encouraged by this news and want to extend my strong support for this
cooperative effort. I hope that this group will function as an important
incubator to develop and hatch consensus positions that will equally
serve conservation and communications objectives going forward.

**STATEMENT OF**

**COMMISSIONER ROBERT M. McDOWELL**

RE: Effects of Communications Towers on Migratory Birds, WT Docket No.
03-187.

Having grown up in what was a rural setting in Virginia, I have had a
longstanding commitment to ecological conservation, and ornithological
conservation in particular. Accordingly, I am pleased that the
Commission is furthering its previous efforts to gather scientific
evidence on avian mortality at communications towers.

Many thanks to Chairman Martin for his leadership in bringing this issue
before the Commission today. I encourage all interested parties to
participate in this rulemaking. I look forward to working closely with
my colleagues and all stakeholders to ensure that the Commission moves
forward to carefully balance the need to protect against avian
mortalities associated with communications towers, while not unduly
hampering the ability of industry to deliver new, advanced services to
American consumers as quickly and economically as possible.

[^1]: In the Matter of Effects of Communications Towers on Migratory
    Birds, *Notice of Inquiry*, WT Docket No. 03-187, 18 FCC Rcd 16938 ¶
    1 (2003) (*NOI*).

[^2]: Citations to Comments and Reply Comments filed in response to the
    *NOI* are designated "\[Name of Party\] *NOI* Comments (or Reply
    Comments) at \[page number\]." A list of commenters can be found in
    Appendix B. In addition to the names on that list, more than three
    thousand concerned citizens, most of whom are members of the
    National Audubon Society, filed brief comments both during and after
    the formal comment periods asking the Commission to: comply with
    federal environmental statutes; immediately implement the U.S. Fish
    and Wildlife Service voluntary guidelines; and undertake extensive
    research into the impact that communications towers have on
    migratory birds. The complete record in this proceeding (WT Docket
    No. 03-187) is available in the Electronic Comment Filing System
    located at http://www.fcc.gov/searchtools.html.

[^3]: "Wireless Telecommunications Bureau Seeks Comment on Avatar
    Environmental, LLC, Report Regarding Migratory Bird Collisions with
    Communications Towers," *Public Notice*, 19 FCC Rcd 24007 (WTB 2004)
    (*Avatar Public Notice*). Citations to Comments and Reply Comments
    filed by a party in response to the *Avatar* *Public Notice* are
    designated "\[Name of Party\] *Avatar PN* Comments (or Reply
    Comments) at \[page number\]." These commenters are also listed in
    Appendix B.

[^4]: For example, in some circumstances tower designs that present more
    intrusive profiles may be disfavored due to matters such as historic
    properties, wetlands, or endangered species.

[^5]: Streamlining the Commission's Antenna Structure Clearance
    Procedure, *Report and Order,* 11 FCC Rcd 4272 (1995) (*Antenna
    Structure Procedure Order*).

[^6]: 47 U.S.C. § 303(q); *Antenna Structure Procedure Order*, 11 FCC
    Rcd at 4274 ¶ 3; *see also* 47 U.S.C. § 503(b)(5) (providing that
    non-licensee antenna structure owners may be subject to forfeiture
    for violations of painting or lighting requirements as specified by
    the Commission).

[^7]: 49 U.S.C. § 44718.

[^8]: *See* 14 C.F.R. § 77.13 (FAA rules); 47 C.F.R. § 17.7 (FCC rules).

[^9]: 14 C.F.R. § 77.19(b); *see Antenna Structure Procedure Order* at
    4274 ¶ 3.

[^10]: 47 C.F.R. §§ 17.4, 17.23. A fuller discussion of the statute and
    regulations pertinent to compliance with FAA lighting specifications
    is set forth in para. 37, *infra*. The registration process is
    generally completed online at the Commission's Antenna Structure
    Registration website <http://wireless.fcc.gov/antenna/>. This
    website provides comprehensive information about the registration
    process and the Part 17 rules.

[^11]: *See* 47 U.S.C. § 303(q); 47 C.F.R. § 17.23 (tower owner shall
    comply with FAA's painting and lighting recommendations "\[u\]nless
    otherwise specified by the Commission").

[^12]: This includes antenna structures that currently exist or that
    have been proposed to be built or modified.

[^13]: 16 U.S.C. § 701.

[^14]: In 2003, when the Commission released the *Migratory Bird NOI*,
    FWS had listed 836 migratory bird species. In 2004, Congress enacted
    the Migratory Bird Treaty Reform Act that required, among other
    things, a delisting of nonnative bird species that have been
    introduced by humans into the United States or its territories and
    to which the Migratory Bird Treaty Act (MBTA) does not apply.
    Migratory Bird Treaty Reform Act of 2004 (Division E, Title I, Sec.
    143 of the Consolidated Appropriations Act, 2005), Pub. L. 108-447.
    To comply with that statute, FWS reduced its list of species
    protected by the MBTA to 711. Final List of Species to Which the
    Migratory Bird Treaty Act Does Not Apply, 70 Fed. Reg. 12710 (rel.
    March 15, 2005).

[^15]: *See* Manville, A.M. II, *The ABCs of Avoiding Bird Collisions at
    Communications Towers: the Next Steps,* Proceedings of the Avian
    Interactions Workshop, December 2, 1999, Charleston, S.C., Electric
    Power Research Institute, *available at*
    http://migratorybirds.fws.gov/issues/towers/abcs.html (Aug. 31,
    2000). According to this report, neo-tropical songbirds are
    particularly vulnerable to collisions with communications towers.

[^16]: CTIA *NOI* Comments at Exhibit B (U.S. Fish & Wildlife Service,
    Migratory Bird Mortality: Many Human Caused Threats Afflict our Bird
    Populations, at 1 (Jan. 2002)).

[^17]: FWS *NOI* Comments at 3.

[^18]: 42 U.S.C. §§ 4321-4335.

[^19]: 16 U.S.C. § 1531 *et seq*.

[^20]: 16 U.S.C. § 703 *et seq*.

[^21]: *Department of Transportation v. Public Citizen*, 541 U.S. 752,
    756 (2004); *Robertson v. Methow Valley Citizens Council*, 490 U.S.
    332, 350 (1989).

[^22]: 42 U.S.C. §§ 4321-4335; *Public Citizen*, 541 U.S. at 756;
    *Methow Valley Citizens Council*, 490 U.S. at 350.

[^23]: 42 U.S.C. § 4332(2)(C). CEQ's regulations define the "human
    environment" to include the natural and physical environment and the
    relationship of people with that environment. 40 C.F.R. § 1508.14.

[^24]: 42 U.S.C. § 4332(2)(C).

[^25]: 42 U.S.C. § 4321.

[^26]: 40 C.F.R. §§ 1501.3, 1508.9.

[^27]: 40 C.F.R. § 1501.4(e).

[^28]: 40 C.F.R. §§ 1501.4(a), 1508.4.

[^29]: 16 U.S.C. § 1538(a)(1)(B). Under the ESA, "take" means "to
    harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
    collect, or to attempt to engage in any such conduct." *Id.* §
    1532(19). The ESA authorizes the Secretary of the Interior to permit
    any otherwise prohibited "taking" if "such taking is incidental to,
    and not the purpose of, the carrying out of an otherwise lawful
    activity." *Id.* § 1539(a)(1)(B).

[^30]: *Id*. § 1536(a)(2). "Federal agency" includes any "department,
    agency, or instrumentality of the United States." *Id*. § 1532(7).

[^31]: *See* 16 U.S.C. §§ 703, 704(a). Although FWS issues migratory
    bird "take" permits for certain activities, it does not issue
    permits, under the MBTA, for incidental or accidental takes in the
    course of activities undertaken for purposes unrelated to migratory
    birds. U.S. Fish & Wildlife Service Manual, Part 724, Section 2
    (dated August 6, 2003) (providing for permits to qualified
    applicants for the following types of migratory bird-related
    activities: import/export, scientific collecting, taxidermy,
    waterfowl sale and disposal, educational use, game bird propagation,
    salvage, falconry, raptor propagation, rehabilitation, control of
    depredating migratory birds, and special purpose activities).

[^32]: In addition, executive branch agencies are subject to Executive
    Order 13186, which requires Federal agencies "taking actions that
    have, or are likely to have, a measurable negative effect on
    migratory bird populations" to develop and implement a Memorandum of
    Understanding (MOU) with FWS that "shall promote the conservation of
    migratory bird populations." Exec. Order No. 13186, 66 Fed. Reg.
    3853 (Jan. 10, 2001). Section 2(g) of Exec. Order No. 13186 defines
    "Federal agency" to mean "an executive department or agency, but
    does not include independent establishments as defined by 5 U.S.C.
    104." *Id.* The Executive Order does not apply to the Commission,
    which is an "independent establishment." *See* 5 U.S.C. §§ 101, 104.

[^33]: 47 C.F.R. § 1.1301 *et seq*; Amendment of Environmental Rules in
    Response to New Regulations Issued by the Council on Environmental
    Quality, *Report and Order*, 60 R.R. 2d 13 (1986).

[^34]: 47 C.F.R. § 1.1305. The Commission has identified no common fact
    pattern which would enable it to specify actions that automatically
    require an EIS. *Id*.

[^35]: 47 C.F.R. § 1.1307(a)(1)-(8), (b). Section 1.1307(a) provides
    that Commission action with respect to the following types of
    facilities may significantly affect the environment and therefore
    require an EA: (1) facilities that are to be located in an
    officially designated wilderness area; (2) facilities that are to be
    located in an officially designated wildlife preserve; (3)
    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 are likely to result in the destruction or adverse modification
    of proposed critical habitats, as determined by the Secretary of the
    Interior; (4) facilities that may affect districts, sites,
    buildings, structures or objects that are listed, or are eligible
    for listing, in the National Register of Historic Places; (5)
    facilities that may affect Indian religious sites; (6) facilities to
    be located in a flood plain; (7) facilities whose construction will
    involve significant change in surface features, such as wetland
    fill, deforestation or water diversion; and (8) antenna towers
    and/or supporting structures that are to be equipped with high
    intensity white lights which are to be located in residential
    neighborhoods, as defined by applicable zoning law. Section
    1.1307(b) provides that Commission actions granting construction
    permits, licenses to transmit or renewals thereof, equipment
    authorizations, or modifications in existing facilities require the
    preparation of an EA if the particular facility, operation or
    transmitter would cause human exposure to levels of radiofrequency
    (RF) emissions in excess of the guidelines that the Commission has
    adopted. *See* 47 C.F.R. §§ 1.1310, 2.1093.

[^36]: 47 C.F.R. § 1.1306(a).

[^37]: 47 C.F.R. § 1.1307(c), (d). Under Section 1.1307(c), an
    interested person may petition the Bureau responsible for processing
    a particular action to require environmental consideration, where
    such consideration would not otherwise be required by the rules. If
    the Bureau determines that the action may have a significant
    environmental impact, it will require that an EA be prepared. Under
    Section 1.1307(d), the Bureau shall, on its own motion, require the
    preparation of an EA, if the Bureau determines that the proposal may
    have a significant environmental impact.

[^38]: 47 C.F.R. § 1.1307(a)(3).

[^39]: *See id.* § (a)(3); 47 C.F.R. § 1.1308 note; Letter from Susan H.
    Steiman, Associate General Counsel to Steve Williams, Director, U.S.
    Fish and Wildlife Service, U.S. Department of Interior, dated July
    9, 2003.

[^40]: *See* State of Ohio Department of Administrative Services *--*
    Application for Antenna Structure Registration -- Deersville, OH*,
    Memorandum Opinion and Order,* 19 FCC Rcd 18149, 18150-53 ¶¶ 6-14
    (WTB/SCPD 2004) (reviewing whether a tower would have a significant
    impact on migratory bird species and endangered species); County of
    Leelanau, Michigan, *Memorandum Opinion and Order*, 9 FCC Rcd 6901,
    6903 ¶ 8 & n.11 (1994) (addressing whether proposed tower would have
    a significant, adverse impact on migratory bird population as part
    of overall obligations to consider the impact of authorized
    facilities on the environment); Caloosa Television Corp.,
    *Memorandum Opinion and Order*, 3 FCC Rcd 3656, 3658 ¶ 11 (1988),
    *recons. denied*, *Memorandum Opinion and Order*, 4 FCC Rcd 4762
    (1989) (considering the impact of a proposed tower on area's
    migratory bird population); *see also* Letter from Linda Blair,
    Acting Chief, Audio Services Division, Mass Media Bureau, to Tanja
    L. Kozicky, Esq., 11 FCC Rcd 4163, 4166 & n.10 (Audio Serv. Div.
    1996) (addressing concerns regarding effect of proposed construction
    on migratory birds consistent with Commission's overall obligations
    to consider the impact of authorized facilities on the environment);
    Baltimore County, Maryland, *Memorandum Opinion and Order*, 4 FCC
    Rcd 5068, 5071 ¶¶ 23-25 (Private Radio Bureau 1989), *review
    denied*, *Memorandum Opinion and Order*, 5 FCC Rcd 5615 (1990)
    (finding that proposed tower would not have a significant effect on
    the environment due to bird mortality).

[^41]: The Commission's rules provide that, for facilities that require
    no Commission authorization prior to construction, the licensee or
    applicant is to ascertain whether the proposed facility may have a
    significant environmental impact, and if so, must file and await
    Commission processing of an EA prior to construction. 47 C.F.R. §
    1.1312(a), (b).

[^42]: *See, e.g.,* FCC Form 854 (Application for Antenna Structure
    Registration), Item 38; FCC Form 601 (Application for Wireless
    Telecommunications Bureau Radio Service Authorization), General
    Certification Statement 6; FCC Form 301 (Application for
    Construction Permit for Commercial Broadcast Station), General
    Environmental Worksheet; FCC Form 301-CA (Application for Authority
    to Make Changes in a Class A Television Broadcast Station),
    Certification Item 12; FCC Form 340 (Application for Construction
    Permit for Reserved Channel Noncommercial Educational Broadcast
    Station), General Environmental Worksheet.

[^43]: 47 C.F.R. §§ 1.1306, 1.1312(e).

[^44]: *See* 47 C.F.R. § 17.4(c) (environmental processing required
    before antenna structure can be registered); *Antenna Structure
    Procedure Order,* 11 FCC Rcd 4272.

[^45]: 47 C.F.R. §§ 1.1305, 1.1314-1.1319.

[^46]: *NOI*, 18 FCC Rcd at 16946 ¶ 14, 16951 ¶ 25, 16952 ¶ 29. The
    *NOI* requested that interested parties file comments by November
    12, 2003. Reply comments were due no later than December 13, 2003.
    *Id*. at at 16954 ¶ 36.

[^47]: *Id*. at 16947 ¶¶ 15-16.

[^48]: *Id*. at 16948-16950 ¶¶ 17-24.

[^49]: *Id*. at 16951-16952 ¶¶ 25-28.

[^50]: Memorandum from Jamie Rappaport Clark, Director, U.S. Fish and
    Wildlife Service, U.S. Department of the Interior, to FWS Regional
    Directors, Subject: Service Guidance on the Siting, Construction,
    Operation and Decommissioning of Communications Towers, available at

    http:// migratorybirds.fws.gov/issues/towers/comtow.html (Sept. 14,
    2000) (FWS Guidelines).

[^51]: *Id.* at 16952-16953 ¶¶ 29-33.

[^52]: FWS *NOI* Comments at 1.

[^53]: *Id*. at 3, 5, 8.

[^54]: *Id*. at 3, 13.

[^55]: *Id*. at 2, 3, 4.

[^56]: *Id*. at 3, 4.

[^57]: *Id*. at 10.

[^58]: American Bird Conservancy, Forest Conservation Council, and
    Friends of the Earth *NOI* Comments at 1 (American Bird Conservancy
    *NOI* Joint Comments).

[^59]: *Id*. at 2.

[^60]: *Id*. at 6.

[^61]: *Id*. at 7-12.

[^62]: Id. at 14.

[^63]: *Id*. at 15-19. In its comments, the National Wildlife Foundation
    agrees that there is sufficient information for the Commission to
    adopt the FWS Guidelines. National Wildlife Foundation *NOI*
    Comments at 3.

[^64]: Chickasaw *NOI* Comments at 1; Eastern Band of Cherokee *NOI*
    Comments at 1.

[^65]: Nunakauyak *NOI* Comments at 1.

[^66]: The Kenaitze Indian Tribe is not aware of any issues or problems
    involving migratory birds colliding with communications towers
    within its jurisdictional area of the Kenai Peninsula, Alaska.
    Kenaitze *NOI* Comments at 1.

[^67]: Cingular and SBC *NOI* Comments at 4-6; CTIA and NAB *NOI*
    Comments at 23-24; PCIA *NOI* Reply Comments at 4-6; NATE *NOI*
    Comments at 3-4.

[^68]: CTIA and NAB *NOI* Comments at 22-23. PCIA contends that the
    Commission's registration of antenna structures does not trigger any
    obligations under NEPA or the ESA. PCIA *NOI* Reply Comments at 4-6.

[^69]: CTIA and NAB *NOI* Comments at 9.

[^70]: *Id*. at 14. Similarly, Sprint argues that FWS's estimate of 5
    million annual migratory bird deaths due to collisions with
    communications towers is insignificant when compared to FWS's
    high-end estimated migratory bird population of 20 billion. Sprint
    *NOI* Comments at 3-4.

[^71]: CTIA and NAB *NOI* Comments, Exhibit A, Woodlot Alternatives,
    Inc., "An Assessment of Factors Associated with Avian Mortality at
    Communications Towers -- A Review of Existing Scientific Literature
    and Incidental Observations: Technical Comments prepared in response
    to the August 20, 2003, Notice of Inquiry Issued by the Federal
    Communications Commission (FCC) WT Docket No. 03-187" (Woodlot *NOI*
    Technical Study) at 3, 16, 38.

[^72]: *Id*. at 38.

[^73]: AT&T Wireless *NOI* Comments at 2; Cingular and SBC *NOI*
    Comments at 6-7, 12; PCIA *NOI* Comments at 4-5; Sprint *NOI*
    Comments at 3-9; NATE *NOI* Comments at 2-6.

[^74]: *See generally* Notice of Inquiry Comment Review
    Avian/Communication Tower Collisions, Final, Prepared for Federal
    Communications Commission, by Avatar Environmental, LLC (filed
    December 10, 2004) (*Avatar Report*), WT Docket No. 03-187.

[^75]: *Avatar Report* at 5-1.

[^76]: "Blind collision" refers to a bird flying in such poor visibility
    conditions it does not see the tower in time to avoid it. An
    "illuminated sphere of influence" can occur when lights on a tower
    refract off water particles in the air. This tends to happen during
    foggy conditions.

[^77]: *Id.* at 5-1 to 5-2.

[^78]: *Id*. at 5-4 to 5-12.

[^79]: FWS formed the Communications Tower Working Group in 1999 to
    develop research on the effect that communications facilities may
    have on migratory birds. It consists of representatives from the
    scientific, federal and state agency, environmental, consulting, and
    industry communities and meets on an irregular basis.

[^80]: *Avatar Report* at 5-4 to 5-12.

[^81]: *Id.*

[^82]: *Avatar Public Notice*, 19 FCC Rcd 24007.

[^83]: See Appendix B for the complete list.

[^84]: FWS *Avatar PN* Comments at 1, 5.

[^85]: *Id*. at 4.

[^86]: *Id*. at 2.

[^87]: *Id*.

[^88]: American Bird Conservancy *Avatar PN* Joint Comments at
    Attachment, Land Protection Partners, "Scientific Basis to Establish
    Policy Regulating Communications Towers to Protect Migratory Birds:
    Response to Avatar Environmental, LLC, Report Regarding Migratory
    Bird Collisions with Communications Towers, WT Docket No. 03-187,
    Federal Communications Commission Notice of Inquiry" (LPP *Avatar
    PN* Technical Report).

[^89]: *Id*. at 4-6.

[^90]: American Bird Conservancy *Avatar PN* Joint Comments at 3-6,
    9-12.

[^91]: FWS *Avatar PN* Reply Comments at 1. We note that the record also
    contains interim results of a study that is underway at towers
    operated by the Michigan Public Safety Communications System; this
    study is designed to measure the effect of different types of
    antenna structures and lighting regimes on avian mortality. *See*
    paras. 31-32, *infra*.

[^92]: CTIA & NAB *Avatar PN* Comments at 3-4; PCIA *Avatar PN* Comments
    at 2-3; Cingular *Avatar PN* Comments at 1, 4.

[^93]: CTIA & NAB *Avatar PN* Comments at 4; Cingular *Avatar PN*
    Comments at 4, 15; Centerpointe *Avatar PN* Comments at 14-15; PCIA
    *Avatar PN* Comments at 3. In its initial technical report, Woodlot
    provides estimates of the number of migratory birds killed by causes
    other than communications towers. For instance, according to
    Woodlot, buildings cause 78.4 million to 928.3 million bird deaths
    per year; pesticides and oil can cause 67 million to 76 million bird
    deaths per year; and cats can cause 300 million to 500 million bird
    deaths per year. Woodlot *NOI* Technical Study at 9, 11, 12.

[^94]: CTIA & NAB *Avatar PN* Reply Comments at Exhibit A, Woodlot
    Alternatives, LLC, "Technical Comment on Scientific Basis to
    Establish Policy Regulating Communications Towers to Protect
    Migratory Birds: Response to Avatar Environmental, LLC, Report
    Regarding Migratory Bird Collisions with Communications Towers, WT
    Docket No. 03-187, Federal Communications Commissions Notice of
    Inquiry and Reply to Comments Filed With Federal Communications
    Commission on WT Docket No. 03**-**187, Avatar Environmental, LLC,
    Report Regarding Migratory Bird Collisions With Communication
    Towers" at 8-9.

[^95]: *Id*. at 1, 5.

[^96]: *Id*. at 2, 8-10.

[^97]: Centerpointe *Avatar PN* Reply Comments at 17.

[^98]: Gehring *Avatar PN* Comments at 1.

[^99]: MPSCS retained Gehring to design and conduct studies of avian
    mortality at certain of its towers over several migration seasons.
    The study design and field work were completed according to the
    Avian Collision Study Plan for the Michigan Public Safety
    Communications System (MPSCS): Assessing the Role of Lighting,
    Height, and Guy Wires in Avian Mortality Associated with Wireless
    Communications and Broadcast Towers (revised version: April 27,
    2004).

[^100]: *Id*. at 2.

[^101]: *Id*. at 3-5. During the Fall 2003 study, Gehring's staff found
    22 migratory bird carcasses next to guyed towers and no migratory
    bird carcasses at the unguyed towers. In the Spring 2004 study,
    Gehring's staff found 121 migratory bird carcasses at guyed towers
    and 5 migratory bird carcasses at unguyed towers. During the Fall
    2004 study, her staff found 51 migratory bird carcasses at guyed
    towers and nine migratory bird carcasses at unguyed towers. *Id*.

[^102]: Gehring, Joelle, Ph.D., *Avian Collision Study for the Michigan
    Public Safety Communications System (MPSCS): Summary of Spring 2005
    Field Season* (Aug. 12, 2005) at 1 (Gehring August 2005 Report);
    Gehring, Joelle, Ph.D., *Avian Collision Study for the Michigan
    Public Safety Communications System (MPSCS): Summary of Fall 2005
    Field Season* (Dec. 30, 2005) at 1 (Gehring Dec. 2005 Report).

[^103]: Three guyed and three unguyed towers utilized each of the
    configurations of white strobe, red strobe, and red blinking
    incandescent lights, and three guyed towers used red strobe
    interspersed with red steady lights. No unguyed towers with red
    steady lights were included in these studies.

[^104]: For the Spring 2005 study, at towers that were 380 to 480 feet
    AGL, Gehring's staff found three migratory bird carcasses at both
    guyed and unguyed towers equipped with white strobe lights; 12
    carcasses at three guyed towers with red strobe lights and four
    carcasses at three unguyed towers using red strobe lights; eight
    carcasses at three guyed towers using red blinking incandescent
    lights and four carcasses at three unguyed towers using the same
    lights; and 37 carcasses at three guyed towers with non-blinking
    lights. Gehring's staff found 132 birds at the three guyed towers
    above 1000 feet AGL. Gehring Aug. 2005 Report at 2-3. For the Fall
    2005 study, for towers between 380 and 480 feet AGL, there were
    eight bird carcasses at three guyed towers with white strobe lights
    and two carcasses at three unguyed towers with white strobe lights;
    eight carcasses at three guyed towers with red strobe lights and one
    carcass at three unguyed towers with red strobe lights; 14 carcasses
    at three guyed towers with red blinking incandescent lights and two
    carcasses at three unguyed towers with the same type of lights; and
    18 carcasses at three guyed towers with non-blinking lights. Again,
    the largest number of bird kills, 120, was caused by three guyed
    towers with non-blinking lights that were 1000 feet tall. Gehring
    Dec. 2005 Report at 2-3. These figures yield average deaths
    per-tower per-season of 42 at towers over 1000 feet tall, 9.17 at
    380-480-foot towers with red steady lights, 2.94 at guyed
    380-480-foot towers using other lighting configurations, and 0.89 at
    the unguyed towers.

[^105]: We note that if the Commission determines to rely on a
    scientific or technical study (or studies) as a basis for its
    decision-making in this proceeding, such study (or studies) may need
    to meet any applicable peer review requirements set forth in the
    Peer Review Bulletin issued by the Office of Management and Budget
    (OMB). *See generally* OMB Final Information Quality Bulletin for
    Peer Review, 70 Fed. Reg. 2664 (Jan. 14, 2005).

[^106]: 42 U.S.C. § 4332(2)(C).

[^107]: 40 C.F.R. § 1508.14.

[^108]: 16 U.S.C. § 1536(a)(2). The ESA further declares "the policy of
    Congress that all Federal departments and agencies shall seek to
    conserve endangered species and threatened species and shall utilize
    their authorities in furtherance of the purposes of this chapter."
    16 U.S.C. § 1531(c)(1).

[^109]: Amendment of Environmental Rules in Response to New Regulations
    Issued by the Council on Environmental Quality, FCC 85-626, *Report
    and Order*, 60 RR 2d 13, 16 (1986) ("The primary purpose of this
    \[NEPA\] process is to ensure that agencies consider and balance
    with other public interest factors the environmental effects of
    proposals before them."). *See also* Amendment of Environmental
    Rules, *First Report and Order*, 5 FCC Rcd 2942, 2943 (1990) ("any
    delay in construction that results from requiring an applicant to
    undergo environmental processing prior to construction, rather than
    at the licensing stage, is more than offset by the public interest
    benefits of ensuring, in compliance with Federal environmental
    statutes, that no potentially irreversible harm to the environment
    occurs.").

[^110]: *See, e.g.,* Amendment of Environmental Rules, *First Report and
    Order*, 5 FCC Rcd 2942 ¶ 1 (1990) (requiring licensees and
    applicants to ascertain prior to construction whether certain
    proposed facilities may have a significant environmental effect
    under the Commission's NEPA rules); *Antenna Structure Procedure
    Order*, 11 FCC Rcd at 4289 ¶ 41 (registration of an antenna
    structure constitutes a "federal action" justifying imposition of
    environmental responsibilities on the structure owner); *cf.*
    Nationwide Programmatic Agreement Regarding the Section 106 National
    Historic Preservation Act Review Process, *Report and Order*, 20 FCC
    Rcd 1073, 1083-84 ¶¶ 24-28 (tower construction is permissibly viewed
    as a "federal undertaking" under the National Historic Preservation
    Act (NHPA)); *petition for review denied*, *CTIA v. FCC*, Case No.
    05-1008, \_\_\_ F.3d \_\_\_, 2006 WL 2728749 (D.C. Cir. September
    26, 2006) (upholding the applicability of the NHPA to tower
    construction).

[^111]: *See* County of Leelanau, Michigan, *Memorandum Opinion and
    Order*, 9 FCC Rcd 6901, 6903 ¶ 8 & n.11 (1994) (addressing whether
    proposed tower would have a significant, adverse impact on migratory
    bird population as part of overall obligations to consider the
    impact of authorized facilities on the environment); Caloosa
    Television Corp., *Memorandum Opinion and Order*, 3 FCC Rcd 3656,
    3658 ¶ 11 (1988), *recons. denied*, *Memorandum Opinion and Order*,
    4 FCC Rcd 4762 (1989) (considering the impact of a proposed tower on
    area's migratory bird population); *see also* In the Matter of
    Implementation of the National Environmental Policy Act of 1969,
    *Report and Order*, 49 FCC 2d 1313, 1328 ¶ 38 (1974) (indicating
    that towers "exceeding 500 feet in height" should not be placed
    "along favored migratory routes" to the extent possible), *petition
    for reconsideration granted in part,* 56 FCC 2d 635 (1975) (not
    addressing migratory bird issues).

[^112]: 47 C.F.R. §§ 1.1301-1.1319.

[^113]: *See* n. 110, *supra.*

[^114]: 42 U.S.C. § 4332(2)(C)(i) ("all agencies of the Federal
    Government shall . . . include in every recommendation or report on
    proposals for legislation and other major Federal actions
    significantly affecting the quality of the human environment . . . a
    detailed statement . . . on the environmental impact of the proposed
    action.").

[^115]: *S*ee Centerpointe *Avatar PN* Reply Comments at 17.

[^116]: *See* LPP *Avatar PN* Technical Report at 4.

[^117]: *See* Woodlot *NOI* Technical Study at 7-14.

[^118]: 16 U.S.C. §§ 703, 704(a).

[^119]: *Compare* *Humane Society of the United States v. Glickman*, 217
    F.3d 882, 883 (D.C. Cir. 2000) (MBTA prohibits a federal agency's
    actions to manage population of a bird species without obtaining a
    permit from FWS) *with* *Sierra Club v. Martin*, 110 F.3d 1551, 1555
    (11th Cir. 1997) (the MBTA does not apply to incidental migratory
    bird deaths that result from the Park Service's logging activities).

[^120]: Petition by Forest Conservation Council, American Bird
    Conservancy and Friends of the Earth for National Environmental
    Policy Act Compliance*, Memorandum Opinion and Order,* 21 FCC Rcd
    4462, 4469 n.42 (2006); County of Leelanau, Michigan, *Memorandum
    Opinion and Order*, 9 FCC Rcd 6901, 6903 ¶ 8 (1994)*.*

[^121]: FWS *NOI* Comments at 1, 5; American Bird Conservancy *NOI*
    Joint Comments at 1; *see* *U.S. v. Moon Lake Electric Assoc.*, 45
    F. Supp. 2d 1070 (D. Colo. 1999) (rejecting electric power
    cooperative's motion to dismiss criminal prosecution for
    unintentional electrocution of birds and holding that the "MBTA's
    language and regulations suggest that Congress intended to prohibit
    conduct beyond that normally exhibited by hunters and poachers").

[^122]: CTIA *NOI* Comments at 23-24; *see City of Sausalito v.
    O'Neill*, 386 F.3d 1186, 1225 (9th Cir. 2004), quoting *Seattle
    Audubon Society v. Evans*, 952 F.2d 279, 302 (9th Cir. 1991)
    (explaining that an unlawful "taking" under the MBTA "describes
    physical conduct of the sort engaged in by hunters and poachers").

[^123]: *See* CTIA *NOI* Comments at 24 (arguing that the Commission
    does not have statutory authority to regulate towers for the purpose
    of minimizing their potential impacts on migratory birds).

[^124]: Section 1 of the Communications Act states that the purpose of
    the Commission is, among other things, "to make available, so far as
    possible, to all the people of the United States . . . a rapid,
    efficient, Nation-wide, and world-wide wire and radio communication
    service." 47 U.S.C. § 151.

[^125]: FWS *NOI* Comments at 3.

[^126]: American Bird Conservancy *NOI* Joint Comments at 14. In their
    Joint Comments, the American Bird Conservancy, Forest Conservation
    Council, and Friends of the Earth enumerate reports in which
    switching from red obstruction lighting to white lights appeared to
    reduce avian mortality at certain communications towers. *See,
    e.g.,* American Bird Conservancy *NOI* Joint Comments at 12 (citing
    ornithologist's report that switching from red incandescent lights
    to white strobe lights caused fewer avian deaths at a tower in Mt.
    Pleasant, South Carolina). We further note that Avatar discussed a
    number of studies that appeared to show that birds were not as
    attracted to white strobe lights as they were to red obstruction
    lights. *Avatar Report* at 3-43 to 3-45 (describing the 2000 studies
    conducted by Gauthreaux, S.A., Jr. and C.G. Belser, recorded in
    transcripts of the proceedings of the workshop on avian mortality at
    communication towers, August 11, 1999, Cornell University, Ithaca,
    NY, http://migratorybirds.fws.gov/issues/towers/agenda.html).

[^127]: FWS *NOI* Comments at 7.

[^128]: *Id*. at 7-10.

[^129]: Gehring Dec. 2005 Report at 3; Gehring Aug. 2005 Report at 3.

[^130]: 47 U.S.C. § 303(q).

[^131]: 47 C.F.R. Part 17.

[^132]: 47 C.F.R. § 17.7.

[^133]: 14 C.F.R. § 77.13.

[^134]: 14 C.F.R. § 77.19. *See* FAA Advisory Circular (AC) 70/7460-1K,
    "Obstruction Marking and Lighting" (August 2000), and FAA Advisory
    Circular (AC) 150/5345-43E, "Specification for Obstruction Lighting
    Equipment" (October 1995).

[^135]: 47 C.F.R. § 17.4(b).

[^136]: 47 C.F.R. § 17.23.

[^137]: FAA AC 70/7460-1K, "Obstruction Marking and Lighting."

[^138]: *Id*. at 13-27.

[^139]: *See* April 6, 2004 Memorandum from the FAA's Program Director
    for Air Traffic Airspace Management, ATA-1, Sabra W. Kaulia, to
    Regional Air Traffic Division Managers ("2004 FAA Memorandum").

[^140]: *Id.* These different white and red lighting systems are
    discussed in more detail in the FAA AC 70/7460-1K. *See* FAA AC
    70/7460-1K. We note that Advisory Circular 70/7460-1K currently does
    not permit the use of red strobe or red blinking incandescent lights
    without the use of red steady lights. *Id.* at 13-14. See further
    discussion on these red lighting systems, *infra*, in paragraph 42.

[^141]: 2004 FAA Memorandum*.*

[^142]: *See, e.g.,* American Bird Conservancy Avatar PN Joint Comments
    at 8-9 and Reply Comments at 3. **\[** *See also* Letter from
    Representative Edward Markey to Chairman Kevin J. Martin, dated
    April 10, 2006 (urging the Commission to revise its rules in
    response to this FAA memorandum)**\]**. We note, however, that in
    subsequent correspondence American Bird Conservancy has indicated a
    preference for either white or red strobe lights. *See* para. 43,
    *infra*.

[^143]: *See* 47 C.F.R. § 17.23 ("Specifications for painting and
    lighting antenna structures").

[^144]: *See* 47 C.F.R. § 17.23.

[^145]: FAA AC 70/7460-1K at 13-14. We further note that FAA AC
    70/7460-1K does not appear to explicitly permit the use of red
    blinking incandescent lights. *Id*.

[^146]: E-mail from Gerald W. Winegrad, American Bird Conservancy, to
    Fred Campbell, Legal Advisor to FCC Chairman Martin, dated July 31,
    2006.

[^147]: *See id.*

[^148]: 47 C.F.R. § 1.1307(a)(8).

[^149]: 2004 FAA Memorandum.

[^150]: *Avatar Report* at 5-1.

[^151]: *Id*. at 3-37.

[^152]: American Bird Conservancy *NOI* Joint Comments at 14-15.

[^153]: Gehring *Avatar PN* Comments at 4-5; Gehring Dec. 2005 Report at
    3; Gehring Aug. 2005 Report at 3.

[^154]: *See* paras. 53-57, *infra*.

[^155]: *Avatar Report* at 4-8.

[^156]: *Id*. at 4-8 to 4-9.

[^157]: *Id*. at 4-9.

[^158]: *Id*. at 4-9 to 4-16.

[^159]: *Id*.

[^160]: *Id*. at 5-1.

[^161]: FWS *NOI* Comments at 10.

[^162]: American Bird Conservancy *NOI* Joint Comments at 16-17; FWS
    *NOI* Comments at 9-10.

[^163]: Gehring's interim reports of the Michigan studies indicate that
    towers that were taller than 1000 feet AGL caused more avian
    mortality than towers between 380 and 480 feet AGL. *See* Gehring
    Aug. 2005 Report at 2-3; Gehring Dec. 2005 Report at 2-3.

[^164]: *NOI*, 18 FCC Rcd at 16950 ¶ 23.

[^165]: *Id*.

[^166]: *See, e.g.,* American Bird Conservancy *NOI* Joint Comments at
    17; American Bird Conservancy *Avatar PN* Joint Comments at 2.

[^167]: *Avatar Report* at 5-1.

[^168]: LPP *Avatar PN* Technical Report at 28. According to Land
    Protection Partners, researchers in this study observed "exceptional
    numbers of migrants" at 2 to 30 meters AGL on ridgelines.

[^169]: We note that the Commission's rules currently address
    collocation matters in certain respects. *See, e.g.,* 47 C.F.R. §
    1.1306 Note 1 (excluding collocations from provisions of Section
    1.1307(a) other than Section 1.1307(a)(4); 47 C.F.R. Part 1, App. B
    (Nationwide Programmatic Agreement excluding most collocations from
    review under Section 106 of the National Historic Preservation Act).

[^170]: American Bird Conservancy *NOI* Joint Comments at 17; FWS *NOI*
    Comments at 10. *See also* FWS Voluntary Guidelines at 2.

[^171]: 47 C.F.R. § 1.1307(a)(1)-(8).

[^172]: American Bird Conservancy *Avatar PN* Joint Comments at 20;
    American Bird Conservancy *NOI*\
    Joint Comments at 19.

[^173]: 47 C.F.R. § 1.1307(c), (d). As discussed in paras. 9-10,
    *supra,* any action deemed potentially to have a significant
    environmental effect under categories specified in Section
    1.1307(a)(1)-(8) and (b) of the rules requires the preparation of an
    EA. All other actions are deemed individually and cumulatively to
    have no significant effect on the quality of the human environment
    and are categorically excluded from environmental processing. 47
    C.F.R. § 1.1306(a).

[^174]: *Avatar Report* at 5-1.

[^175]: *See* paras. 36-44, *supra.*

[^176]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206. We note
    that the Commission shares jurisdiction over some of the issues
    addressed in this proceeding with FWS and the FAA, and that
    presentations by these agencies are therefore exempt from
    disclosure. 47 C.F.R. § 1.204(a)(5).

[^177]: *See* 5 U.S.C. § 603.

[^178]: *See* 44 U.S.C. § 3506(c)(4).

[^179]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^180]: *See* 5 U.S.C. § 603(a).

[^181]: *See id.*

[^182]: 42 U.S.C. §§ 4321-4335; *Public Citizen*, 541 U.S. at 756;
    *Methow Valley Citizens Council*, 490 U.S. at 350.

[^183]: 16 U.S.C. § 1538(a)(1)(B). Under the ESA, "take" means "to
    harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
    collect, or to attempt to engage in any such conduct." *Id.* §
    1532(19). The ESA authorizes the Secretary of the Interior to permit
    any otherwise prohibited "taking" if "such taking is incidental to,
    and not the purpose of, the carrying out of an otherwise lawful
    activity." *Id.* § 1539(a)(1)(B).

[^184]: 47 C.F.R. § 1.1301 *et seq*; Amendment of Environmental Rules in
    Response to New Regulations Issued by the Council on Environmental
    Quality, *Report and Order*, 60 R.R. 2d 13 (1986).

[^185]: In the Matter of Effects of Communications Towers on Migratory
    Birds, *Notice of Inquiry*, WT Docket No. 03-187, 18 FCC Rcd 16938 ¶
    1 (2003) (*NOI*).

[^186]: 16 U.S.C. § 701.

[^187]: CTIA *NOI* Comments at Exhibit B (U.S. Fish & Wildlife Service,
    Migratory Bird Mortality: Many Human Caused Threats Afflict our Bird
    Populations, at 1 (Jan. 2002)).

[^188]: 47 C.F.R. § 1.1307.

[^189]: *See* 5 U.S.C. § 601(6).

[^190]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions which are appropriate to the
    activities of the agency and publishes such definition(s) in the
    Federal Register.

[^191]: Small Business Act, 5 U.S.C. § 632 (1996).

[^192]: 5 U.S.C. § 601(4).

[^193]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^194]: 5 U.S.C. § 601(4).

[^195]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^196]: 5 U.S.C. § 601(5).

[^197]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, page 272, Table 415.

[^198]: We assume that the villages, school districts, and special
    districts are small, and total 48,558. *See* U.S. Census Bureau,
    Statistical Abstract of the United States: 2006, section 8, page
    273, Table 417. For 2002, Census Bureau data indicate that the total
    number of county, municipal, and township governments nationwide was
    38,967, of which 35,819 were small. *Id.*

[^199]: 5 U.S.C. § 603(c).