**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| Petition by Forest Conservation  | ** |                              |
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| Earth for National Environmental | *) |                              |
| Policy Act Compliance            | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: April 11, 2006 Released: April 13, 2006**

By the Commission: Commissioner Adelstein issuing a statement and
Commissioner Copps concurring in part, dissenting in part, and issuing a
statement.

# I. INTRODUCTION

1.  In this *Memorandum Opinion and Order*, we resolve the Petition for
    National Environmental Policy Act Compliance filed by the Forest
    Conservation Council, American Bird Conservancy, and Friends of the
    Earth by dismissing it in part, denying it in part, and addressing
    the remainder, as appropriate, in connection with issues already
    specified in the Notice of Inquiry into the Effects of Towers on
    Migratory Birds (*Migratory Bird NOI*).[^1]

    **II. BACKGROUND**

2.  In their Petition filed on August 26, 2002, Petitioners assert that
    the Gulf Coast region is critically important for migratory birds,
    and that communications towers are having a significant adverse
    impact on migratory birds in that region. Petitioners then allege
    that the Commission's actions or inaction with respect to the
    construction of towers in the Gulf Coast region have violated
    several federal environmental statutes. Specifically, Petitioners
    contend: (1) that the Commission has violated the National
    Environmental Policy Act of 1969 (NEPA)[^2] by categorically
    excluding from environmental review 5,797 communications tower
    registrations in the Gulf Coast region, and by failing to consider
    migratory bird concerns in its environmental review of an additional
    96 communications tower registrations; (2) that the Commission has
    violated NEPA by failing to prepare a programmatic Environmental
    Impact Statement (EIS) addressing the environmental effects of past,
    present, and future antenna structure registrations in the Gulf
    Coast region; (3) that the Commission has violated section 7 of the
    Endangered Species Act (ESA)[^3] by failing to consult with the
    United States Fish and Wildlife Service (USFWS) regarding the
    effects of its antenna structure registration decisions on listed
    species; and (4) that the Commission has violated the Migratory Bird
    Treaty Act (MBTA)[^4] by failing to take action to minimize or
    eliminate the take of migratory birds. Accordingly, Petitioners
    request several forms of relief, as set forth in Paragraph 4, below.
    On September 27, 2002, the Personal Communications Industry
    Association (PCIA) filed a Motion to Dismiss the Petition.[^5]

3.  Subsequently, on August 20, 2003, the Commission issued the
    *Migratory Bird NOI* "to gather comment and information on the
    impact that communications towers may have on migratory birds."[^6]
    In response to the *NOI*, the Commission received a number of
    comments and reply comments that referred to scientific studies of
    past incidents of migratory birds colliding with communications
    towers. To help the Commission evaluate these scientific studies,
    the Commission retained Avatar Environmental, LLC (Avatar), an
    environmental risk consulting firm. After reviewing the scientific
    studies referred to by the comments and reply comments, Avatar
    submitted a report of its findings (Avatar Report),[^7] on which the
    Wireless Telecommunications Bureau sought comment.[^8]

    **III. DISCUSSION**

4.  In their Petition, Petitioners seek the following relief:

    \(1\) that the Commission order owners of 5,797 categorically
    excluded antenna structures which Petitioners identify to prepare
    environmental assessments (EAs) disclosing the direct, indirect, and
    cumulative impacts of their structures on migratory birds in the
    Gulf Coast region;

    \(2\) that the Commission order owners of 96 antenna structures
    which Petitioners identify and which allegedly have incomplete EAs
    to supplement their EAs to address the direct, indirect, and
    cumulative impacts of their structures on migratory birds;

    \(3\) that the Commission immediately commence preparation of an EIS
    evaluating, analyzing, and mitigating the direct, indirect, and
    cumulative effects of all past, present, and reasonably foreseeable
    antenna structure registrations on migratory birds and other
    protected resources in the Gulf Coast region;

    \(4\) that the Commission comply with Section 7 of the ESA by
    initiating formal consultation with the USFWS of its antenna
    structure registration decisions on threatened and endangered
    species in the Gulf Coast region;

    \(5\) that the Commission refrain from registering any new
    communications towers in the Gulf Coast region that may adversely
    affect migratory birds until it has complied with NEPA, the ESA and
    the MBTA, and in making such determinations, the Petitioners
    recommend that the Commission use the USFWS Voluntary Tower
    Guidelines;[^9]

    \(6\) that the Commission implement public participation procedures
    set forth in 40 C.F.R. § 1506.8 (*sic*)[^10] by providing
    Petitioners notice and opportunity to comment on all antenna
    structure registration applications for the Gulf Coast region,
    regardless of whether the Commission believes these decisions are
    categorically excluded from NEPA review; and

    \(7\) that the Commission comply with the MBTA by taking steps to
    reduce or eliminate intentional or unintentional "takes" of
    migratory birds, developing long-term management plans to conserve
    migratory birds and their habitats, and incorporating migratory bird
    impacts into all future NEPA analyses, including those requested in
    the Petition.[^11]

    Below we consider each of these requests for relief in turn.

    **A. Environmental Assessments on Categorically Excluded Towers**

5.  We dismiss Petitioners' request that the owners of 5,797 previously
    constructed, categorically excluded towers[^12] file EAs on the
    ground that the request lacks specificity. First, while Petitioners
    are correct that section 1.1307(c) of the Commission's rules[^13]
    permits them to seek EAs for categorically excluded actions that
    will have a significant environmental effect, Petitioners fail to
    meet the requirement that the reasons for an EA be set forth *in
    detail*. This requirement necessitates that the asserted significant
    effects of each tower be set forth with specificity, rather than be
    lumped together under a general rationale, as the Petition does
    here.

6.  Second, Petitioners provide affidavits from 11 different individuals
    who assert that their enjoyment of bird watching suffers because of
    the presence of these towers, yet fail to indicate which
    communications towers affect which affiants.[^14] "A petitioner must
    demonstrate with specificity how the grant of the application would
    affect its interests, aggrieve or injure the petitioner."[^15] Here,
    Petitioners fail to demonstrate that affiants suffer injury specific
    to any of the 5,797 communications towers that Petitioners identify.
    In order to process efficiently the thousands of antenna structure
    registrations filed annually, it is imperative that petitioners make
    specific allegations and specify parties that would actually be
    harmed by each antenna structure.[^16] Accordingly, because
    Petitioners have not met their burden here and their generalized
    requests would result in an extraordinary administrative burden, we
    dismiss their request for relief on this matter.[^17]

    **B. Incomplete Environmental Assessments for Communications
    Towers**

7.  We deny the Petition's request that the owners of 96 constructed
    towers in the Gulf Coast region supplement their EAs to consider
    effects on migratory birds.[^18] For each of these towers, when the
    owner of the tower filed its EA, a Public Notice was issued giving
    interested parties, including Petitioners, the opportunity to
    comment within a time certain.[^19] Petitioners do not assert that
    the notice for any of these towers was defective, nor do they set
    forth any arguments that could not have been raised at the time the
    EAs were under review, and in any event, the Petition lacks the
    specificity required by Section 1.1307(c), as discussed above.
    Accordingly, we find that Petitioners are precluded from raising
    this matter here.

    **C. Environmental Impact Statement on Communications Towers in the
    Gulf Coast Region**

8.  We dismiss Petitioners' request that the Commission immediately
    commence preparation of an EIS evaluating, analyzing, and mitigating
    the effects of all past, present, and reasonably foreseeable antenna
    structure registrations in the Gulf Coast region. Petitioners
    specifically assert that the Gulf Coast towers have a cumulative
    effect on migratory birds warranting a Programmatic Environmental
    Impact Statement (PEIS).[^20] The petitioners have not provided
    sufficient evidence to convince us in this proceeding that the
    impact of communications towers on migratory birds significantly
    affects the quality of the human environment and accordingly that
    the preparation of a PEIS is warranted. We note, however, that we
    are compiling an extensive record relating to the impact of
    communications towers on migratory birds in the Migratory Bird NOI
    proceeding, and the decision we make today does not prejudge any
    action that the Commission may take based upon the record in that
    proceeding.

9.  On May 1, 2000, the Chairman of the Commission wrote a letter to the
    Director of the USFWS, noting the dearth of study and research on
    avian collisions with communications towers and the corresponding
    absence of consensus within the scientific community. The Chairman
    indicated that the Commission would take appropriate action
    regarding migratory birds when there were adequate scientific
    standards to determine if towers would affect migratory birds.[^21]
    Subsequently, the Commission issued the *Migratory Bird NOI* to
    develop a record "on scientific research and other related data
    relevant to migratory bird collisions with communications towers,
    and on whether such research would support changes within the
    structure of our current rules and processes specifically related to
    protection of migratory birds."[^22] Section 1.1305 of the
    Commission's rules requires the preparation of an EIS for "\[a\]ny
    Commission action deemed to have a significant effect upon the
    quality of the human environment.[^23] While the petitioners claim
    that towers are a source of avian mortality, we find that they have
    not shown with specificity in this proceeding that towers have a
    significant effect upon the quality of the human environment. For
    example, the petitioners in this proceeding have made no scientific
    showing that the population of any specific bird species has
    decreased as a result of collisions with communications towers,
    thereby making more difficult human observation or research of that
    species. And, while the petitioners allege generally that towers
    have an impact upon species protected by the Endangered Species Act,
    [^24] they do not identify any particular species that has been
    adversely affected.

10. Additionally, we note that no consensus exists as to the impact of
    antenna towers on bird populations or avian mortality. The parties
    to the *Migratory Bird NOI* have expressed sharply divergent views
    on the number of birds killed by towers, the significance of such
    collisions to the environment, the types of towers that endanger
    birds, and what actions, if any, should be taken. Avatar, an
    environmental risk consulting firm retained by the Commission to
    evaluate the evidence compiled in the *Migratory Bird NOI*, found
    that although the potential for harm exists, "there are no studies
    to date that demonstrate an unambiguous relationship between avian
    collisions with communications towers and population decline of
    migratory bird species."[^25] After Avatar submitted its report,
    environmental and industry groups submitted conflicting studies
    concerning the effect of antenna towers on avian mortality and bird
    populations.[^26] The Commission has not yet completed its review of
    the scientific evidence presented in the Migratory Bird NOI docket
    and has not yet made any conclusions concerning that evidence.

11. In any event, given the lack of specific evidence in this proceeding
    concerning the impact of towers on the human environment and the
    lack of consensus among scientists regarding the impact of
    communications towers on migratory birds, we decline at this time to
    prepare a PEIS. We emphasize, however, that our decision not to
    prepare a PEIS at this time is based solely upon the record in this
    proceeding. We intend to complete our review of the record in the
    Migratory Bird NOI proceeding and in the near future to issue a
    Notice of Proposed Rulemaking in that docket that considers possible
    further Commission action.

    **D. Initiating Formal Consultation with the USFWS**

12. We deny the Petition's request that the Commission initiate formal
    consultation with the USFWS on the effect that communications towers
    have on threatened and endangered species in the Gulf Coast region.
    As set forth below, as required under the ESA, the Commission
    initiates formal consultation when it is found necessary by the
    USFWS. Petitioners do not show either that the Commission has failed
    to initiate formal consultation under these circumstances or that
    its applicants have failed to follow the procedures necessary to
    identify when formal consultation is required.

13. Commission rules require that all applicants consider the effect
    that their communications towers will have on threatened and
    endangered species, and specifically authorize applicants to contact
    the USFWS in assessing such effect.[^27] Additionally, in accordance
    with the interagency coordination regulations,[^28] the Commission
    has formally designated all applicants as non-federal
    representatives for purposes of Section 7 consultation.[^29]  This
    blanket designation contemplates that applicants will participate in
    informal consultation with the USFWS as a prerequisite to
    determining, in the first instance, whether a proposed tower "may
    affect" or is "likely to jeopardize" listed or endangered species or
    designated critical habitats, and thus, requires the submission of
    an environmental assessment pursuant to section 1.1307(a)(3). Such
    participation may entail applicants requesting and receiving species
    lists, submitting Biological Assessments (BAs) that consider the
    effect of proposed constructions on any listed species, and
    providing information to be utilized if formal consultation is
    required. Upon receipt of a BA concluding that the tower is not
    likely to adversely affect listed species or critical habitat, the
    USFWS field office will either provide a written concurrence[^30] or
    seek formal consultation under Section 7 of the Endangered Species
    Act.[^31] Such written concurrence from the field office will end
    the Section 7 consultation process, and submission of the written
    concurrence will conclude environmental processing for that tower
    with respect to the effects on threatened or endangered species.
    Should the BA not conclude that there will be no adverse effect on
    listed species or critical habitat, the Commission, as the action
    agency, must commence formal consultation under Section 7. In other
    words, formal consultation takes place whenever the USFWS, *i.e.*,
    the expert agency, believes it necessary, based upon an informal
    process prescribed by USFWS regulations.[^32] Petitioners have not
    demonstrated that the owners of any of the communications towers
    that it identifies have failed to participate in informal
    consultation with the USFWS as authorized by the Commission's
    environmental processing procedures or that there was any basis to
    initiate formal Section 7 consultation with the USFWS.

14. Petitioners also request that the Commission initiate formal
    consultation with the USFWS on the cumulative effects that
    communications towers have on endangered species. Petitioners,
    however, provide no evidence of any synergies among these or other
    existing towers that would cause them cumulatively to have
    significant environmental impacts that they do not have
    individually. Petitioners also fail to delineate how the various
    towers would cause effects to environmental resources, to compare
    the alleged effects with any sort of environmental baseline, or to
    otherwise provide concrete evidence of cumulative effects. We
    therefore reject their generalized assertions of cumulative
    environmental effect on endangered species because the assertions
    are not supported by concrete evidence. Accordingly, we deny
    Petitioners' request on this matter.[^33]

    **E. Registering New Communications Towers in the Gulf Coast
    Region**

15. Petitioners request that the Commission refrain from registering any
    new communications towers in the Gulf Coast region that may
    adversely affect migratory birds until it has complied with NEPA,
    the ESA and the MBTA, and in making such determinations, Petitioners
    recommend that the Commission use the USFWS Voluntary Guidelines.
    Petitioners' request for a suspension of tower construction is a
    request for injunctive relief in the form of a stay on Commission
    action. Because Petitioners have not met the criteria for issuance
    of a stay, we deny their request.

16. The Commission evaluates petitions for stay under well-settled
    precedent. To warrant a stay, a petitioner must demonstrate
    that: (1) it is likely to prevail on the merits; (2) it will suffer
    irreparable harm if a stay is not granted; (3) other interested
    parties will not be harmed if the stay is granted; and (4) the
    public interest favors granting a stay.[^34]

17. We find that Petitioners have not satisfied any of these criteria.
    As explained throughout this Order, we do not accept Petitioners'
    assertion that the Commission is in violation of NEPA, the ESA or
    the MBTA, and therefore cannot conclude that Petitioners are likely
    to prevail on the merits of this claim. Petitioners also fail to
    show irreparable harm if a stay is not granted; to the contrary,
    many towers to be constructed within the Gulf Coast region will
    require completion of an EA under section 1.1307(a) or (b), and
    Petitioners may request an EA for other towers upon a specific
    detailed showing pursuant to section 1.1307(c). Thus, Petitioners
    fail to demonstrate that each tower could not be reviewed on an
    individual basis. Furthermore, because a stay on construction of
    towers needed for reliable wireless communications would hinder the
    availability of both commercial and public safety communications,
    the interest of wireless consumers and safety personnel, as well as
    the public interest, would be harmed if we were to grant the stay.
    And insofar as Petitioners recommend reliance on the USFWS Voluntary
    Tower Guidelines, we have sought comments on these guidelines in the
    *Migratory Bird NOI* and we are considering them in that context.
    Accordingly, we deny Petitioners' request for relief in this matter.

    **F. Public Participation Procedures for Communications Tower
    Construction**

18. We deny Petitioners' request that the Commission provide Petitioners
    "notice and opportunity to comment on all antenna structure
    registration applications the FCC is contemplating in the Gulf Coast
    region, regardless of whether the FCC believes these decisions are
    categorically excluded from NEPA review," as Petitioners state is
    contemplated under public participation procedures specified in the
    CEQ rules.[^35] This request is unsupported as a matter of law. As
    required by Section 1507.3(a) of the CEQ rules,[^36] the
    Commission's rules on public participation were coordinated with CEQ
    to assure compliance with its requirements.[^37] In addition,
    Petitioners cite no authority for the proposition that CEQ public
    participation requirements must be extended to categorically
    excluded actions, which, by definition, identify those that do not
    individually or cumulatively have a significant impact and that do
    not require the preparation of either an EA or an EIS.[^38]
    Moreover, even if they were applicable to categorically excluded
    actions, the CEQ rules do not require the kind of personal notice
    that petitioners appear to request. That is, while Petitioners seek
    notice on all antenna structure registration applications in the
    Gulf Coast region, CEQ rules provide for the agency mailing notice
    to those who have requested it on an *individual* action.[^39]
    Accordingly, there is no basis for providing the relief that
    Petitioners seek.

    **G. Commission Compliance with the Migratory Bird Treaty Act**

19. Petitioners contend that the Commission must take steps to reduce
    intentional or unintentional takes of migratory birds, develop
    long-term management plans to conserve migratory birds and their
    habitats, and incorporate migratory bird impacts into NEPA
    analyses.[^40] We are already considering this general request in
    other contexts. We note that as an initial matter, the Commission
    has considered, where appropriate, the impact that tower
    constructions have on migratory birds as part of our overall
    obligation to consider the impact of authorized facilities on the
    environment.[^41] Beyond such considerations, as discussed above,
    the Commission has issued the *Migratory Bird NOI*, and the Wireless
    Telecommunications Bureau has subsequently sought comment on the
    report issued by Avatar that analyzed the existing scientific data
    on avian collisions with communications towers. Because that
    proceeding already addresses Petitioners' concerns as to Commission
    action under the MBTA, we will consider them within that
    proceeding.[^42] As mentioned above,[^43] we anticipate issuing a
    Notice of Proposed Rulemaking in that proceeding in the near future.

    **IV. ORDERING CLAUSES**

20. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Section
    1.1307(c) of the Commission's Rules, 47 C.F.R. § 1.1307(c), the
    Petition for Environmental Compliance, filed by the Forest
    Conservation Council and the American Bird Conservancy, dated August
    26, 2002, IS DENIED, in part, and IS DISMISSED, in part, as
    reflected above.

21. IT IS FURTHER ORDERED that the Motion to Dismiss filed by the
    Personal Communications Industry Association IS DISMISSED as moot.

    Federal Communications Commission

    Marlene H. Dortch

    Secretary

**STATEMENT OF**

COMMISSIONER MICHAEL J. COPPS,

CONCURRING IN PART, DISSENTING IN PART

RE: Petition by Forest Conservation Council, American Bird Conservancy
and Friends of the Earth for National Environmental Policy Act
Compliance.

 

The U.S. Fish and Wildlife Service conservatively estimates that
collisions with communications towers kill more than four million birds
per year.  Some estimates put the figure as high as forty million bird
kills annually.  Migratory birds are particularly vulnerable as they fly
south to the southern United States, Mexico and beyond for the winter.
 Now it goes without saying that communications towers are important for
America -- allowing us to watch television, listen to the radio, make
mobile phone calls and increasingly get wireless broadband
connectivity.  One of the most important priorities of this Commission
is to facilitate this deployment of communications technologies -- but
we need not be oblivious to related concerns as we go about our work. 
Nor need we become "The Reluctant Environmentalist."  In truth, we are
not faced with an all-or-nothing proposition.  I am confident that the
Commission, with some sustained effort and commitment, can manage the
expansion of communications towers while also preserving the country's
environmental resources for future generations.  Evidence suggests, for
example, that something as simple as tower lighting changes might
significantly reduce bird mortality.

 

Today's action says less about the impact of communications towers on
migratory birds than it does about past Commission failure to do its
job.  It was in 2003 that we initiated our *Migratory Bird* proceeding. 
Many of the issues still unresolved in that proceeding are the same
issues underlying the Petitioners' request before us.  We need to get on
with this job.  More research may need to be done -- and some serious
inter-agency dialogue and coordination are in order.  We should be
working closely with the U.S. Fish and Wildlife Service, the Federal
Aviation Administration, federally-recognized Indian Tribes and other
interested stakeholders to resolve the outstanding issues.  The
Commission has not taken any recent action in this regard.  I am
encouraged, however, that my colleagues have expressed a willingness to
move forward with a Notice of Proposed Rulemaking in the *Migratory
Bird* proceeding.  I commend Commissioner Adelstein for his leadership
in pushing for this result -- and I concur in this aspect of the
decision.  But I must respectfully dissent from the remainder of the
decision that dismisses the Petitioners' request for action, because it
fails to analyze substantively the issues underlying it.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Petition by Forest Conservation Council, American Bird Conservancy
and Friends of the Earth for National Environmental Policy Act
Compliance; Memorandum Opinion and Order*

While I do not fully embrace this Memorandum Opinion and Order, I am
willing to vote in favor of our ruling today because of the agreement to
my request to consider a Notice of Proposed Rulemaking in the larger
proceeding addressing the important issue of the potential effects of
communication towers on migratory birds. I believe that this omnibus
proceeding, which unfortunately has languished for some time, is the
correct procedural vehicle for addressing these important issues, and I
am pleased that I am able to push that review forward.

While I am sympathetic to a number of issues raised in the petition
before us today, the petition just is not the right vehicle for these
overarching concerns. This is particularly true when you consider the
rebuilding efforts that will be so critical to the Gulf Coast area over
the next several months, particularly with a new hurricane season
rapidly approaching. Rebuilding the communications infrastructure in the
areas that were hit so badly by last season's hurricanes is priority
one, especially when you consider the critical role of communications in
our disaster relief efforts. During the opening session of the
Commission's Hurricane Katrina Independent Panel, for example, we have
heard from the Louisiana State Police how local and state communications
towers were actually blown down during the hurricane, which led to a
severe limitation of critical communications support for public safety
and first responders in the area.

I am hopeful that our NPRM will provide a thorough and thoughtful review
into the potential effects of communication towers on migratory birds. I
look forward to asking questions on what steps we should take in light
of the scientific data that exists on this troubling phenomenon.
Migratory birds are a prized natural resource, and conservation of the
population and their habitats for future generations is an important
goal.

Of course, communication towers represent a critical component in the
continued deployment of basic and advanced telecommunications services.
Towers not only will form the backbone of the transition to digital
television, they also are used everyday by our nation's homeland
security and public safety communities to effectively and quickly
respond to those who need our help the most.

It is critical that the Commission balance these important interests as
we consider a NPRM in the proceeding and develop a strategic approach
for dealing with the impact that communication towers may have on
migratory birds. I thank the Chairman and my colleagues for their
willingness to move forward in this proceeding.

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

[^2]: 42 U.S.C. § 4321 *et seq*.

[^3]: 16 U.S.C. § 1531 *et seq*.

[^4]: 16 U.S.C. § 703.

[^5]: Because PCIA's Motion to Dismiss only addresses Petitioners' first
    two requests for relief, para. 4, *infra*, and because we dismiss
    and deny those requests for relief, respectively, on different
    grounds below, we dismiss the Motion to Dismiss as moot.

[^6]: *Migratory Bird NOI*, 18 FCC Rcd 16938, para. 1.

[^7]: *See* *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.

[^8]: *Wireless Telecommunications Bureau Seeks Comment on Avatar
    Environmental, LLC, Report Regarding Migratory Bird Collisions with
    Communications Towers, Public Notice*, WT Docket No. 03-187, 19 FCC
    Rcd 24007 (WTB 2004). *See also* *Wireless Telecommunications Bureau
    Extends Period for Comment on Avatar Environmental, LLC, Report
    Regarding Migratory Bird Collisions with Communications Towers*, WT
    Docket No. 03-187, 19 FCC Rcd 24778 (WTB 2004).

[^9]: Service Guidance on the Siting, Construction, Operation and
    Decommissioning of Communications Towers, U.S. Fish and Wildlife
    Service (2000)
    (<http://migratorybirds.fws.gov/issues/towers/comtow.html>) (USFWS
    Voluntary Tower Guidelines).

[^10]: We assume Petitioners meant to cite to 40 C.F.R. § 1506.6, Public
    involvement, rather than 40 C.F.R. § 1506.8, Proposals for
    legislation.

[^11]: Petition at 19-20.

[^12]: *Id*. at Exhibit B. Actions subject to categorical exclusion are
    those that an agency has found to not individually or cumulatively
    significantly impact the environment, and that therefore do not
    require the preparation of either an EA or an EIS. 40 C.F.R. §
    1508.4. Under Commission rules, actions that do not fall within the
    categories specified in section 1.1307(a) or (b) are categorically
    excluded. *See* 47 C.F.R. § 1.1307(a), (b).

[^13]: 47 C.F.R. § 1.1307(c). The rule states, in pertinent part:

    > If an interested person alleges that a particular action,
    > otherwise categorically excluded, will have a significant
    > environmental effect, the person shall submit to the Bureau
    > responsible for processing that action a written petition setting
    > forth in detail the reasons justifying or circumstances
    > necessitating environmental consideration in the decision-making
    > process.

[^14]: *Id*. at Exhibit C.

[^15]: Friends of the Earth and Forest Conservation Council, *Memorandum
    Opinion and Order*, 17 FCC Rcd 201, 203, para. 8 (WTB/CWD 2002)
    (*Friends of the Earth*), *appl. for review denied*, *Memorandum
    Opinion and Order*, 18 FCC Rcd 23622 (2003).

[^16]: *See Friends of the Earth*, 17 FCC Rcd at 203, para. 8.

[^17]: We also note that petitioners include in their list, but fail to
    identify, towers that were constructed before the Commission's rules
    were adopted, and in some instances even before NEPA was enacted,
    and so are not subject to those rules. Should petitioners re-file
    their request for relief on this matter, they are directed to
    exclude such towers from their requested relief.

[^18]: *See* Petition at 13, 14.

[^19]: *See,* *e.g*., Antenna Structure Registration Service
    Information, *Public* *Notice*, Report No. CWS 01-77, rel. Aug. 17,
    2001 (Geonet Towers, Gulfport, Mississippi, A0208342).

[^20]: *See* Petition at 7 and 17.

[^21]: *See* Petition, Exhibit H - Letter from William Kennard, Esq.,
    Chairman, Federal Communications Commission, to Jamie Rappaport
    Clark, Director, USFWS, dated May 1, 2000.

[^22]: *Migratory Bird NOI*, 18 FCC Rcd at 16938-39, para. 2.

[^23]: 47 C.F.R. § 1.1305.

[^24]: Petition at 10.

[^25]: Notice of Inquiry Comment Review Avian/Communications Tower
    Collisions, filed by Avatar Environmental, LLC (Dec. 10, 2004) at
    5-2.

[^26]: Land Protection Partners, "Scientific Basis to Establish Policy
    Regulating Communications Towers to Protect Migratory Birds" (Feb.
    14. 2005); Technical Comment on Scientific Basis to Establish Policy
    Regulating Communications Towers to Protect Migratory Birds,
    prepared by Woodlot Alternatives (filed June 24, 2005).

[^27]: 47 C.F.R. § 1.1307(a)(3) and (Note).

[^28]: 50 C.F.R. § 402.08.

[^29]: *See* Letter from Susan H. Steiman, Associate General Counsel,
    Federal Communications Commission, to Steve Williams, Director,
    United States Fish and Wildlife Service, Department of Interior
    (July 9, 2003),
    http://wireless.fcc.gov/siting/endangeredspeciesletter.pdf.

[^30]: *See* 50 C.F.R. § 402.13(a).

[^31]: 16 U.S.C. § 1532 *et seq.*

[^32]: *See* 50 C.F.R. § 402.13 (providing that informal consultation
    includes all discussions between FWS and either the Federal agency
    or the non-Federal representative designed to determine whether
    formal consultation is required); and § 402.12(c) (providing that
    the non-Federal representative may request a list of any listed or
    proposed species or proposed critical habitat that may be present in
    area of proposed construction and prepare any required biological
    assessment, that a biological assessment is not required if no
    listed species or critical habitats are present, and that formal
    consultation is not required if the biological assessment reflects
    there are no listed species or critical habitats likely to be
    affected).

[^33]: *See* *In the Matter of Public Employees for Environmental
    Responsibility*, 16 FCC Rcd 21439, 21448 (2001) (rejecting
    generalized assertions of cumulative environmental effect that were
    not described or supported by concrete evidence).

[^34]: *See* In the Matter of Improving Public Safety Communications in
    the 800 MHz Band, *Order*, 20 FCC Rcd 641 (2005) *citing*
    [*Virginia* *Petroleum* *Jobbers* *Ass\'n* *v*. *FPC*, 259 F.2d 921,
    925 (D.C. Cir.
    1958)](http://web2.westlaw.com/find/default.wl?DB=350&SerialNum=1958105365&FindType=Y&ReferencePositionType=S&ReferencePosition=925&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.07)
    (*Virginia* *Petroleum*); *see* *also* [*Washington* *Metropolitan*
    *Transit* *Comm\'n* *v*. *Holiday* *Tours*, *Inc*., 559 F.2d 841
    (D.C. Cir.
    1977)](http://web2.westlaw.com/find/default.wl?DB=350&SerialNum=1977123214&FindType=Y&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.07).

[^35]: *See* Petition at 20.

[^36]: 40 C.F.R. § 1507.3(a).

[^37]: *See* Amendment of Environmental Rules in Response to New
    Regulations Issued by the Council on Environmental Quality, *Report
    and Order*, 60 Rad. Reg. 2d (P & F) 13, FCC 85-626, para. 3 (rel.
    Mar. 26, 1986).

[^38]: 40 C.F.R. § 1508.4.

[^39]: 40 C.F.R. § 1506.6(b)(1).

[^40]: *See* Petition at 19.

[^41]: *See* Leelanau County, Michigan, *Memorandum Opinion and Order*,
    9 FCC Rcd 6901, 6903, para. 8 (1994); *see also* State of Ohio
    Department of Administrative Services - Application for Antenna
    Structure Registration - Deersville, OH, *Memorandum Opinion and
    Order*, 19 FCC Rcd 18149 (WTB/SCPD 2004).

[^42]: As the Commission has noted, it is "not clear" whether the MBTA
    applies to the Commission's registration of antenna structures. In
    the Matter of Leelanau, Michigan, Memorandum Opinion and Order, 9
    FCC Rcd 6901, 6903, para. 8 (1994). The MBTA, a criminal statute,
    makes it unlawful for persons, associations, partnerships, and
    corporations to "take" or "kill" migratory birds. The federal courts
    of appeals are divided as to whether a federal agency is a "person"
    subject to the MBTA. *Compare Sierra Club v. Martin*, 110 F.3d 1551,
    1555 (11th Cir. 1997) ("plain language" of MBTA "does not subject
    the federal government to its prohibitions") *and Newton County
    Wildlife Association v. USFS*, 113 F.3d 110, 115 (8th Cir. 1997),
    *cert. denied*, 522 U.S. 1108 (1998) (tentatively concluding that
    MBTA does not apply to federal agencies) *with Humane Society of the
    United States v. Glickman*, 217 F.3d 882, 883 (D.C. Cir. 2000) (MBTA
    applies to federal agencies).

    Even apart from the issue regarding the applicability of the MBTA to
    federal agencies, it is far from certain that this statute would
    prohibit the Commission from authorizing the construction of antenna
    structures because some birds may collide with those structures. A
    number of courts have construed the term "taking" under the MBTA
    narrowly to "describe\[\] physical conduct of the sort engaged in by
    hunters and poachers." *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). *But see Moon Lake
    Electric Association, Inc.*, 45 F. Supp.1070 (D. Colo. 1999). While
    such conduct includes the "management" of migratory birds by
    measures that include their capture and killing (Humane Society of
    the United States v. Glickman, 217 F.3d at 883), it does not include
    otherwise lawful economic conduct that "indirectly results in the
    death of migratory birds," *Newton County Wildlife Association v.
    USFS*, 113 F.3d at 115. *See* *Seattle Audubon Society v. Evans,*
    952 F.2d at 303.

[^43]: *See* para. 11, *supra*.