**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | WT Docket No. 03-187         |
|                                  | * |                              |
| Effects of Communications Towers | ) |                              |
| on Migratory Birds               | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**NOTICE OF INQUIRY**

**Adopted:** August 8, 2003 **Released:** August 20, 2003

**Comment Date: \[60 days from publication in the Federal Register\]**

**Reply Comment Date: \[90 days from publication in the Federal
Register\]**

By the Commission: Chairman Powell issuing a statement.

# Introduction

1.  The Commission is initiating this inquiry to gather comment and
    information on the impact that communications towers may have on
    migratory birds. As explained further below, we seek information
    that is supported by evidence concerning the number of migratory
    bird collisions with communications towers and the role that
    specific factors associated with communications towers may have in
    increasing or decreasing the incidence of such collisions. Such
    factors may include lighting, height, and particular type of antenna
    structure (including guyed and unguyed structures), meteorological
    conditions, location, physiographic features of sites, and known
    migratory bird migration corridors. We further request information
    on whether any current or proposed research may provide useful data
    regarding the subjects of this inquiry, and what other actions may
    be necessary to spur additional, necessary research. We also seek
    comment on whether certain measures might minimize any adverse
    impacts of communications tower siting and construction on migratory
    birds, whether any such measures are supported by adequate and
    reliable empirical and/or scientific evidence, and how the use of
    such measures may affect the ability of licensees and other parties
    to provide efficient and reliable communications services. Depending
    on the record developed in this proceeding, the Commission will
    consider whether the current state of research would support further
    action by the Commission in this area, including possible amendments
    of its environmental rules.[^1]

2.  This inquiry is designed to gather comments on scientific research
    and other related data relevant to migratory bird collisions with
    communications towers, and on whether such research would support
    changes within the structure of our current rules and processes
    specifically related to protection of migratory birds.

# background

3.  Communications towers and other structures that support antennas
    provide the infrastructure for services licensed by the Commission,
    including broadcast television and radio, cellular, Personal
    Communications Service (PCS), Specialized Mobile Radio (SMR), and
    other advanced and emerging services. Communications towers also are
    used for the provision of private radio services used by business
    and government, and for public safety purposes.

4.  Migratory birds breed throughout the United States and Canada and,
    in the fall of each year, migrate to the southern United States,
    Mexico, and Central and South America for the winter.[^2] Currently,
    836 species are on the list of migratory birds maintained by the
    United States Fish and Wildlife Service (FWS).[^3] Birds that have
    been documented as vulnerable to collisions with communications
    towers include approximately 350 species of neotropical migratory
    songbirds, which generally migrate at night and may be most
    susceptible to collisions with lit towers on nights with low
    visibility due to fog, rain, or low cloud ceilings.[^4] At least one
    researcher has suggested that an estimated four to five million
    birds or more may be killed each year due to collisions with
    communications towers.[^5] Reports of bird deaths at single
    locations on a single day have included instances involving hundreds
    or even thousands of birds.[^6] However, to our knowledge there have
    been no studies sufficient to support a reliable estimate of the
    number of migratory birds that may have died as a result of
    collisions with an extensive number of communications towers
    located, for example, over wide geographic areas. In addition, while
    some literature suggests that certain factors -- such as tower
    height, lighting systems, type of antenna support structure, and
    location -- may increase or decrease the hazards that towers pose to
    migratory birds, there does not appear to be systematic research on
    an adequate scale regarding exactly how and to what extent, if at
    all, these factors contribute to any risk to migratory birds.[^7]

## Licensing and Regulation of Radio Communications Services and Antenna Structures

5.  The Commission was created to regulate communications by wire and
    radio in the United States.[^8] Section 1 of the Communications Act,
    as amended (Act), requires the Commission to regulate commerce in
    communications to "make available, so far as possible, to all people
    of the United States . . . a rapid, efficient, Nation-wide, and
    world-wide wire and radio communication service with adequate
    facilities . . . ."[^9] When Congress amended the Communications Act
    in the Omnibus Budget Reconciliation Act of 1993, it directed \"the
    development and rapid deployment of new technologies, products, and
    services for the benefit of the public . . . \[and\] efficient and
    intensive use of the electromagnetic spectrum.\"[^10] The
    Telecommunications Act of 1996 was intended "to promote competition
    and reduce regulation in order to secure lower prices and higher
    quality services for American telecommunication consumers and
    encourage the rapid deployment of new telecommunications
    technologies."[^11] Congress also has provided that all television
    broadcasting in the United States will be by digital technology by
    the end of the transition to digital television (DTV) on December
    31, 2006.[^12] In addition, the Commission is authorized to assign
    frequencies to classes of stations, and has designated spectrum for
    public safety use.[^13] The Wireless Communications and Public
    Safety Act of 1999 (911 Act) directs the Commission to make 911 the
    universal emergency number for wireless and wireline telephone
    service and, among other matters, to encourage and support the
    development of comprehensive emergency communications throughout the
    United States so that all jurisdictions offer seamless networks for
    prompt emergency service.[^14]

6.  As part of its responsibilities, the Commission issues licenses and
    permits relating to communications services and, pursuant to
    statute, requires antenna structures to conform to painting and
    lighting requirements. Section 301 of the Act requires the issuance
    of a license for radio communications,[^15] and construction permits
    from the Commission are required for certain services.[^16] Section
    307(b) of the Act charges the Commission with the duty to distribute
    broadcast licenses \"among the several States and communities as to
    provide a fair, efficient, and equitable distribution of radio
    service to each of the same.\"[^17] Section 303(q) of the Act
    provides that the Commission shall have "authority to require the
    painting and/or illumination of radio towers if and when in its
    judgment such towers constitute, or there is a reasonable
    possibility that they may constitute, a menace to air
    navigation."[^18] Section 303(q) further provides that the
    "permittee or licensee, and the tower owner in any case in which the
    owner is not the permittee or licensee, shall maintain the painting
    and/or illumination of the tower as prescribed by the Commission
    pursuant to this section."[^19] To implement Section 303(q), the
    Commission has provided in its rules that the owner of any proposed
    or existing antenna structure that requires notice of proposed
    construction to the Federal Aviation Administration (FAA) must
    register the structure with the Commission prior to
    construction.[^20] Specifically, such notification and registration
    is required for antenna structures that meet certain height and
    location criteria (generally towers more than 60.96 meters (200
    feet) in height or located within certain distances of an airport,
    as specified in the Commission's rules). As of June 1, 2003,
    approximately 92,454 antenna structures were registered with the
    Commission.[^21] The Commission's rules further require that tower
    owners paint and light their antenna structures in accordance with
    the FAA's advisory specifications for air navigation safety
    purposes.[^22]

## Environmental Statutes and Regulations

7.  The National Environmental Policy Act (NEPA) is the basic national
    charter for protection of the environment, and requires federal
    agencies to establish procedures to identify and account for the
    environmental impact of projects they undertake or authorize.[^23]
    NEPA provides that "to the fullest extent possible . . . all
    agencies of the Federal Government shall . . . include in every
    recommendation or report on . . . major Federal actions
    significantly affecting the quality of the human environment" a
    detailed statement on the environmental impact of the proposed
    action and any adverse environmental impacts that cannot be avoided
    if the proposal is implemented.[^24] The Council on Environmental
    Quality's (CEQ) regulations provide that "human environment" shall
    be "interpreted comprehensively to include the natural and physical
    environment and the relationship of people with that
    environment."[^25] NEPA also requires all Federal agencies to
    consult with and obtain the comments of expert Federal agencies
    before taking any major action significantly affecting the quality
    of the human environment.[^26]

8.  The Endangered Species Act (ESA) prohibits the taking of any
    endangered species by any person unless authorized by FWS.[^27] The
    ESA also provides that "\[e\]ach Federal agency shall, in
    consultation with and with the assistance of the Secretary \[of the
    Department of the Interior\], insure that any action authorized,
    funded, or carried out by such agency . . . is not likely to
    jeopardize the continued existence" of any endangered species or
    threatened species or result in the "destruction or adverse
    modification of habitat of such species which is determined by the
    Secretary . . . to be critical . . . ."[^28] The Migratory Bird
    Treaty Act (MBTA) makes it "unlawful at any time, by any means or in
    any manner, to pursue, hunt, take, capture, kill, attempt to take,
    capture or kill . . . any migratory bird" unless permitted by
    FWS.[^29] Although certain species of migratory birds are protected
    under the ESA, many additional species are protected under the MBTA
    and not the ESA. [^30]

## The Commission's Environmental Rules 

9.  The Commission has implemented Subpart I of NEPA in Part 1, Subpart
    I of its rules.[^31] Under these rules, any Commission action deemed
    to have a significant effect upon the quality of the human
    environment requires the preparation of an Environmental Impact
    Statement (EIS).[^32] 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 Environmental Assessment (EA).[^33] In addition,
    the Commission will require the preparation of an EA if it is
    determined that a particular action, which is otherwise
    categorically excluded under the rules, may have a significant
    environmental impact.[^34] Actions that are deemed individually and
    cumulatively to have no significant effect on the quality of the
    human environment are categorically excluded from environmental
    processing, and do not require the preparation of an EA by the
    applicant or the preparation of an EIS by the agency.[^35]

10. Prior to construction, all tower owners are required to evaluate
    whether towers that require registration fall within one of the
    specified categories of facilities with potential significant
    environmental impact, to file an EA if they do, and to certify
    compliance with the environmental rules on the Antenna Structure
    Registration application form.[^36] Similarly, license and certain
    other permit applicants are required to certify compliance with the
    environmental rules on the appropriate application form, depending
    on the particular service.[^37] If an EA is not required, the party
    may proceed with the project without providing any environmental
    documentation to the Commission. However, if there would be such a
    potential impact, an EA must be submitted and a Finding of No
    Significant Impact or Environmental Impact Statement issued before
    construction.[^38]

11. Section 1.1307(a)(3) provides that an EA is required for proposed
    facilities that may affect listed threatened or endangered species
    or designated critical habitats, or are likely to jeopardize the
    continued existence of any proposed endangered or threatened species
    or likely to result in the destruction or adverse modification of
    proposed critical habitats, as determined by the Secretary of the
    Interior pursuant to the ESA.[^39] Thus, applicants and licensees
    are routinely required to evaluate their construction projects for
    potential adverse effects on birds that are endangered, threatened,
    or otherwise subject to 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
    require the solicitation and consideration of comments of the
    Department of Interior with respect to actions specified in Section
    1.1307(a)(3) of our rules.[^40] With respect to other birds, routine
    evaluation is not required, but an EA shall be required under
    Section 1.1307(c) or (d) if the relevant Bureau finds, in response
    to a petition or on its own motion, that the proposed construction
    may have a significant environmental impact other than impacts
    specified under Sections 1.1307(a)(1)-(8) and (b) of our rules. The
    Commission has acted under Section 1.1307(c) to consider the impact
    that proposed construction would have on migratory birds.[^41]

## Developments Relating to Migratory Birds and the Construction of Communications Towers 

12. A Communication Tower Working Group (CTWG) consisting of
    representatives from the scientific, federal and state agency,
    environmental, consulting, and industry communities was formed under
    the auspices of FWS to help develop research on the effect that
    communications facilities may have on migratory birds. The research
    issues include the roles that certain factors associated with
    communications towers, including lighting, height, and the type of
    tower, may have on migratory birds. The CTWG also has sought to
    examine the potential for research into measures that may minimize
    migratory bird collisions with towers. On September 14, 2000, FWS
    issued its "Service Guidance on the Siting, Construction, Operation
    and Decommissioning of Communications Towers," which includes
    voluntary, interim guidelines to be used by FWS personnel and
    recommended for use by the communications tower industry in
    considering proposed tower sitings for their impacts on endangered
    species and migratory birds.[^42] The guidelines are to be used by
    FWS personnel until the CTWG's research is "completed, or until
    research efforts uncover significant new mitigation measures."[^43]
    The guidelines are based on research conducted in several Eastern,
    Midwestern, and Southern states, and refined through FWS regional
    review.[^44]

# request for comments

## Current State of Scientific Information 

13. The impact that communications towers may have on migratory birds
    has been the subject of study or other analysis for decades, and
    several reports have shown bird deaths at individual locations
    during a single day or over multiple years.[^45] Nevertheless, it
    appears that current knowledge about both the extent to which towers
    kill migratory birds and the specific factors that may contribute to
    any danger is limited.[^46] For example, a March 2000 review of
    recent literature and research in progress that was prepared for
    FWS, Office of Migratory Bird Management,[^47] found, among other
    matters, that: (a) for the 5-year period 1995-1999, very little
    research was published or conducted that is relevant to the
    bird-communications tower collision issue; (b) since certain "major
    reviews" of the late 1970s and early 1980s, there has been little
    research on the subject; and (c) for the period before 1985, there
    is a body of literature on the issue, but most of it is anecdotal
    and the literature itself has not been examined analytically.

14. We seek comment on and analysis of existing scientific research and
    studies relating to the impact that communications towers may have
    on migratory birds. As previously discussed, at least one source
    suggests that an estimated four to five million birds may be killed
    each year due to collisions with communications towers,[^48] and
    another suggests that the number may be higher.[^49] In addition,
    there are reports of bird deaths at individual locations during one
    day or over time.[^50] We seek comment on the extent of migratory
    bird deaths that may be attributable to collisions with
    communications towers, the species and geographic locations
    involved, and what the raw numbers mean in terms of survival of
    species or in other relevant contexts. We ask that comments
    thoroughly discuss the methods that are used to quantify any
    information provided on this matter.

15. We also seek comment on the adequacy and reliability of scientific
    research on the impact of towers on migratory birds, including
    whether the parties that conducted the research are considered to be
    experts in the field,[^51] and whether the research was conducted in
    a scientifically-acceptable and rigorous manner. Comments should
    address whether the research was performed over an adequate period
    of time. Specifically, how many years and migration seasons were
    studied, and why is the length of time either adequate or inadequate
    to support the empirical conclusion? With respect to the scope of
    the study and research, was it conducted in a manner that allowed
    all relevant variables to be considered? We generally expect that
    variables affecting the impact that towers may have on migratory
    birds are likely to fall within two categories: (a) those that may
    be within the control of the tower owner or licensee, such as tower
    lighting, height, type of tower structure, and location; and (b)
    those that are the result of natural phenomena, such as weather, low
    cloud ceilings, and fog. We seek comment on the extent to which
    research has considered these or other variables, and whether the
    research has considered the appropriate combination of variables in
    order to achieve reliable results. For example, were a sufficient
    number of towers studied in order to provide an adequate sampling
    and a reliable indication of the impact of towers on migratory
    birds? Were the towers located at different sites, and did they
    include a range of different towers with different variables
    including: height; location in different geographic settings,
    including proximity to migratory bird flyways; different lighting
    systems; and different tower structures, including the use of guy
    wires? Have studies used Geographic Information Systems (GIS),
    radar, acoustical monitoring, or other methods to assess migratory
    bird presence, help conduct risk assessments, and determine high
    bird density areas or areas of critical importance to birds? On the
    other hand, is it necessary for research to examine different towers
    in order to reflect these and other variables? For example, does a
    study that is conducted at a single location over a long period of
    time provide reliable scientific results for the Commission to use
    to propose changes in its rules and processes, or is it necessary
    for numerous towers at different locations to be studied?

16. We also seek comment on whether the research included effective
    protocols to account for the actual numbers of birds killed at
    specific towers. Specifically, did the research employ standard
    metrics to count dead birds at individual towers in order to provide
    a uniform analysis of results from all towers for comparative
    purposes, or was some other method used? How often and at what times
    of day were searches conducted, and what other methods were used to
    promote searcher efficiency and control scavenger removal (*e.g.*,
    clearing of areas around the base of the tower or use of netting)?
    Comments should also address any other measures that were or were
    not used to account or control for other relevant variables, such as
    whether efforts were made to reduce lighting located near but not on
    the towers that otherwise could attract migratory birds. We seek a
    critical analysis of the research, which examines both the
    adequacies and inadequacies of the research, its methodologies,
    findings, and conclusions.

### Tower Lighting

17. Lighting may be an important factor in attracting and/or
    disorienting migratory birds at communications towers.[^52]
    Particularly in inclement weather, including cloudy nights, birds
    entering an illuminated area may be reluctant to leave and may be
    susceptible to colliding with lighted towers, their supporting guy
    wires, or each other.[^53] It has been suggested that the color of
    tower lights, such as white, white with ultraviolet, or a specific
    color like red, and the duration of any pulse in the lights, such as
    strobe, slow flash, or steady pulse, may be factors that can alter
    the attraction of lighting to migratory birds.[^54] The intensity of
    light, *e.g.*, in lumens, also may play a role. Some reports suggest
    that white strobe lights may be less attractive to neotropical
    migratory species than steady or flashing red incandescent
    lights,[^55] while the attraction of red strobe lights to migratory
    birds is currently unknown.

18. We seek comment on whether and why lighted towers attract birds, and
    whether different lighting systems increase the potential for
    migratory bird collisions with communications towers. We seek
    information on whether studies document any difference in risk posed
    by lighting systems that use lights of different color or different
    rates of flash, pulse, or strobe (including red or white strobe).
    Comments also should address the effects of lighting color,
    duration, intensity, and type (*e.g.*, incandescent, strobed, neon,
    or laser) on bird attraction, especially at night during inclement
    weather and during spring and fall migrations. In addition, we ask
    that commenters take into consideration, where appropriate, the
    impact of different tower lighting systems on human communities.
    Further, are particular lighting systems or colors more or less
    attractive to migratory birds based on differing tower heights? We
    also ask that commenters recommend specific lighting systems to
    minimize migratory bird collisions with towers, to the extent
    supported by scientific findings.

19. Air safety and navigation issues are related to the painting and
    lighting of towers. The FAA has established painting and lighting
    advisory specifications for air safety and navigation purposes, and
    our rules require that the owners of communications towers paint and
    light their antenna structures in accordance with those advisory
    specifications.[^56] We seek comment on the impact, if any, that our
    painting and lighting requirements may have on migratory bird
    collisions with towers. Comments should address and suggest
    solutions to any conflicts that may exist between the advisory
    specifications and other related rules on the one hand, and causes
    of migratory bird collisions on the other. Comments and suggestions
    also should consider air safety and navigation concerns relating to
    towers and their lighting and marking (*e.g.*, towers are marked and
    lighted to be visible to pilots), and the obligations of the
    Commission with respect to air safety and navigation.

### Tower Height

20. The height of towers may contribute to the extent of their impact on
    migratory birds. One report suggests that an important analysis
    would be to compare towers of different heights, that there have
    been relatively few studies of towers less than 400 feet in height,
    and that certain literature, although perhaps only suggestive, does
    not generally implicate such shorter towers in a significant number
    of bird deaths.[^57] Research conducted at two specific locations
    suggests that taller towers, and the structures associated with
    them, may increase avian mortality at those sites.[^58] However, it
    has been suggested that these and other studies do not definitively
    establish that tall towers are responsible for more bird deaths than
    shorter towers,[^59] and the apparent lack of mortality studies at
    short towers may make it premature to assume that short towers cause
    fewer bird deaths than tall towers.[^60]

21. We seek comment on the role of tower height as a cause of collisions
    by migratory birds with communications towers. Are there reliable
    scientific studies that compare the impacts on migratory birds of
    towers of different heights, and do they control for other variables
    such as geographic location, proximity to bird movement corridors,
    and prevailing weather conditions? If there are such studies, what
    are the results and the significance, if any, for determining the
    height of tower that may pose the greatest or least risk to
    migratory birds? Do studies examine whether short towers have less
    impact on migratory birds than tall towers, and do they identify the
    heights of the towers that were studied? The comments should
    consider and document, to the extent possible, whether there is a
    height threshold at which avian mortality becomes significant to an
    avian population, and any other factors that may lead to a
    determination of critical tower height for purposes of minimizing
    migratory bird collisions with towers, including whether the
    critical height threshold may be different in different geographic
    locations or weather conditions. We also ask that comments address
    the relationship, if any, of tower height with other factors, such
    as lighting, and whether there are situations where tower height
    could be limited to deter collisions by birds with towers yet still
    allow the provision of reliable communications services.

### Type of Antenna Structure

22. The type of antenna support structure may be another important
    factor in the extent to which communications towers have an impact
    on migratory birds. For example, guy wires could create a level of
    risk to migratory birds that is not present with unguyed
    towers.[^61] We seek comment on what impact, if any, different tower
    structures may have on migratory birds. Comments should include any
    studies or research on this issue, and should address the relative
    impact on migratory birds of guyed towers, self-supporting lattice
    towers, monopole towers, or other structures such as "hidden" towers
    that are made to resemble trees, for example. Are there factors that
    may make a particular type of tower structure more or less of a risk
    to migratory birds? For example, would guyed towers pose more of a
    risk than other tower structures to migratory birds at night in
    inclement weather? We also seek comment on whether particular tower
    designs or potential deterrent devices such as visual markers may
    deter migratory birds from towers.

### Location of Antenna Structures and Other Factors

23. We seek comment on research or other data relating to any other
    matters within the scope of this inquiry. For example, is there
    information concerning the impact on migratory birds of
    communications towers located in or near specific habitats, such as
    wetlands, which may be a possible location of migratory bird
    populations? Do towers on ridges, mountains, or other high ground
    have a differential impact on migratory bird populations and, if so,
    are there scientifically rigorous studies that address such effects
    and their causes? We seek comment on the impact on migratory birds,
    if any, of locating towers in areas with a high incidence of fog,
    low clouds, or similar obscuration, in proximity to coastlines and
    major bird movement corridors, or either clustered near or dispersed
    from other towers. Comments on the role of any of these factors
    should consider the extent of any such impact during migration
    seasons. We also seek comment on any other factors that may
    influence the impact of communications towers on migratory birds. In
    addition, are data available from studies of non-communications
    facilities which may be relevant on the issue of the impact of
    communications facilities on migratory birds? If such information is
    relied upon, commenting parties should establish the relevance of
    that information and the relationship of facilities used in those
    other industries to facilities used in the communications industry.

24. Certain migratory bird species may hold particular cultural or
    religious significance to Indian Tribes. The Commission has made a
    commitment to consult with federally recognized Indian tribes to the
    extent practical prior to implementing any regulatory action or
    policy that will significantly or uniquely affect Tribal
    governments, their land and resources.[^62] Consistent with that
    commitment, we specifically seek comments from the Tribes and other
    parties on whether any of the questions raised in this inquiry will
    significantly impact Tribal governments, their land, and resources.

##  Need for and Scope of Additional Study

25. In the event that parties believe that existing research is
    insufficient to permit the Commission to address fully the issue of
    migratory bird collisions with towers, we seek comment on what
    additional study or studies may be needed. We ask for comment on
    what variables the research should address, including possible
    lighting regimes, tower height, type of structure, location, and
    impact of different weather conditions. Comments should discuss the
    specific scope and parameters of recommended studies, including: the
    number of towers; different lighting regimes to be studied; whether
    a range of towers with different heights should be included; the
    geographic positioning of towers, including such factors as the
    incidence of inclement weather, topography, and proximity to areas
    that may be attractive to migrating birds, such as wetlands; and the
    different tower structures such as guyed or unguyed, including
    monopole, lattice, or other structures. We also seek comment on what
    types of procedures should be used to monitor birds that may be
    killed at communications towers during these studies.[^63] In
    addition, we request comment on whether studies can be structured
    specifically to research potential methods of reducing the potential
    for migratory bird collisions with towers.

26. Commenters should consider how much time would be needed to complete
    a new study or studies. Specifically, how many fall and spring
    migration seasons should be covered by any research, and how many
    summer seasons, if any, would be needed to monitor impacts on
    breeding, nesting, and local resident avian species? We seek comment
    on the factors that would impact the length of any study, including
    the number of towers that would be the subject of the research, and
    the particular testing procedures that would be used. In addition,
    there may be unpredictable factors, such as weather, that affect the
    time that it would take to complete a study. Estimates of the length
    of a study also should identify whether the estimates include the
    preparation of smaller pilot studies that may be needed to obtain
    meaningful data that would be used to design a broader and more
    in-depth study. We also seek comment on whether pilot studies
    followed by one or more larger studies are necessary, or whether one
    or more smaller studies could yield sufficient information on which
    the Commission could base future actions respecting migratory bird
    issues. If one or more smaller studies alone would be adequate,
    comments should address the relevant protocols. We further seek
    comment on the potential value of monitoring bird deaths at
    particular towers outside the context of a formal study, either in
    addition to or in lieu of such studies.

27. We also seek comment on the appropriate party or parties to design
    and conduct a study. The Commission is not an expert in the area of
    migratory birds, and we seek comment on what other entity might
    appropriately oversee any research that could be used to establish
    relevant standards for the Commission's use. In this regard, we note
    that the FWS is the lead federal agency for managing and conserving
    migratory birds, and its Division of Migratory Bird Management
    undertakes a number of surveys in conjunction with the FWS Regional
    Offices.[^64] We also seek comment on any ongoing or planned studies
    with which the Commission might coordinate in order to achieve
    synergies and avoid duplication of effort.

28. Another important consideration is the cost of a study and the
    source of funding. Cost can vary widely depending, in part, on the
    length of the study, the number of towers to be included, the extent
    of the geographic area, and particular tower features such as height
    and lighting. Sources for funding such studies have been difficult
    to identify.[^65] Comments should address both the estimated cost of
    any studies and potential sources of funding.

## Suggested Methods to Minimize Impacts 

29. We seek comment on whether existing studies or research address the
    use of particular methods to minimize any impact of communications
    towers on migratory birds. For example, would particular lighting
    systems, devices located on or near facilities to deter migratory
    birds, or other measures help to minimize bird collisions with
    communications towers? Comments should identify any particular
    methods, discuss the extent to which they have been used on
    communications towers or other similar relevant structures, and
    quantify the results of their use. In addition, would alternative
    siting of towers to avoid particular areas be a reasonable method to
    minimize impacts, and are there alternate technologies available
    that would permit fewer and/or shorter towers to be built, yet still
    permit communications needs to be met? On the other hand, would the
    use of alternate siting be constrained by existing technology, the
    need for communications carriers to provide coverage for their
    services, build-out requirements under the Commission's rules, or
    any other requirements? In addition, do certain parts of towers,
    *e.g.*, top, middle, or lower sections, pose more or less of a
    potential for collisions with migratory birds and, if so, are there
    specific construction techniques, deterrent actions, or other
    methods that would be useful to minimize impacts?

30. The *FWS Tower Siting Guidelines* encourage certain measures that
    FWS says will "provide significant protection for migratory birds
    pending completion" of the CTWG's recommendations.[^66] The
    voluntary guidelines, which FWS recommends for use by all companies,
    license applicants, or licensees proposing new tower sitings,
    include to the extent feasible: collocation of antennas on existing
    towers or other structures rather than new tower construction; where
    collocation is not feasible, construction of new towers that are no
    taller than 199 feet above ground level without guy wires or
    lighting; siting new towers within existing tower farms; and use of
    the minimum acceptable amount of pilot warning and obstruction
    avoidance lighting recommended by the FAA for towers that require
    lights for aviation safety.[^67] As described above, FWS intended
    the guidelines for interim use, and they were established in
    anticipation of further action by the CTWG.[^68] Further, FWS states
    that the guidelines would be \"updated as new information becomes
    available.\"[^69] Thus, these guidelines were not adopted as final
    measures, but were developed with the understanding that determining
    the appropriate methods to minimize the impact of communications
    towers on migratory birds would be an ongoing process.[^70]

31. We request comment on the scientific basis for these guidelines, the
    general use of the guidelines and the use of each of the specific
    guidelines, and any other potential measures to minimize impacts on
    migratory birds within the scope of our current rules. For example,
    comments could consider whether an MOU or other agreement between
    the Commission and other agencies, such as the FWS, could be used to
    specify the process to review potential impacts of antenna support
    structures on migratory birds, or to help facilitate any necessary
    research on the matters addressed in this inquiry.[^71] Comments
    also should address whether the current state of scientific
    knowledge on causes of bird collisions with communications towers
    supports the use of any or all of the *FWS Tower Siting Guidelines.*
    Further, does current scientific evidence support a finding that
    particular towers do not significantly pose a threat to migratory
    birds? For example, does such evidence exist relating to towers of a
    particular height, *e.g.*, unlit towers that are less than 200 feet
    in height, or towers that use particular lighting, *e.g.*, towers
    with primarily white strobe lighting? Commenters in particular
    should address the relationship of any measures they support or
    oppose with the current state of scientific knowledge. Comments also
    should consider how best to implement any of these matters within
    the current structure of our rules.

32. Particular guidelines intended to minimize impacts on migratory
    birds may, depending on their application, have an impact on
    Commission licensees, applicants, or other parties with respect to
    tower design and engineering, the ability to provide necessary
    communications services, liability, and costs. We seek comment on
    what effects, if any, the recommended FWS guidelines or other
    efforts to minimize impacts have had in these areas. Specifically,
    comments should address whether current or potential increased
    application of any of the guidelines would contribute to delay in
    tower construction, the provision of Commission-licensed services,
    or the transition to digital television. Comments should address
    advantages and disadvantages associated with different means of
    implementing the FWS guidelines, possible revisions to those
    guidelines, or other measures.

33. The Commission licenses and regulates the use of radio transmitters
    by state and local governments in public safety activities. We seek
    comment on the impact that restrictions or guidelines regarding
    tower siting and construction to protect migratory birds may have on
    the use of radio transmission for public safety. What would be the
    effect on the coverage provided by towers used to provide public
    safety service if those towers were, for example, subject to
    restrictions on height or other features in order to protect
    migratory bird populations? We also seek comment on what impact
    tower construction restrictions may have on homeland security
    objectives. In addition, are there other potential conflicts between
    potential measures to minimize impacts of communications towers on
    migratory birds and the availability of communications towers to
    address security concerns?

34. The Commission is committed to serving all parties interested in the
    impact that communications towers may have on migratory birds as
    well as resources allow. To this end we seek comment on ways that
    the Commission can do so better. What can the Commission do to meet
    its responsibilities under relevant statutes and rules better?
    Should the Commission develop additional staff expertise on avian
    mortality issues? Would the expertise of an ecologist or
    environmental biologist be helpful? What staff backgrounds are most
    important? What additional training should be made available for
    existing staff? Are there Commission procedures or rules that impede
    industry\'s or environmental groups\' efforts to address issues
    related to avian mortality? For example, are there aspects of our EA
    requirements that could be improved with respect to migratory bird
    issues? Is there data that the Commission collects that could be of
    assistance to researchers in this field?

#  procedural issues

## *Ex Parte* Presentations

35. This is an exempt proceeding in which *ex parte* presentations are
    permitted (except during the Sunshine Agenda period) and need not be
    disclosed.[^72]

## Filing of Comments and Reply Comments

36. We invite comment on the issues and questions set forth above.
    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 or before **60 days after
    the date of publication of a summary of the Notice of Inquiry in the
    Federal Register**, and reply comments on or before **90 days after
    the date of publication of a summary of the Notice of Inquiry in the
    Federal Register**.

37. Comments may be filed using the Commission\'s Electronic Comment
    Filing System (ECFS) or by filing paper copies.[^73] Given recent
    changes in the Commission's mail delivery system, parties are
    strongly urged to use the ECFS to file their pleadings. Comments
    filed through the ECFS can be sent as an electronic file via the
    Internet to \<[http://www.fcc.gov/e-file/ecfs.html]{.underline}\>.
    Generally, only one copy of an electronic submission must be filed.
    In completing the transmittal screen, electronic filers should
    include their full name, Postal Service mailing address, and the
    applicable docket number. Parties may also submit an electronic
    comment by Internet e-mail. To receive filing instructions for
    e-mail comments, commenters should send an email to ecfs@fcc.gov,
    and should include the following words in the body of the message,
    \"get form \<your e-mail address\>.\" A sample form and directions
    will be sent in reply.

38. Parties who choose to file by paper must file an original and four
    copies of each filing. All filings by mail (including U.S. Postal
    Service Express Mail, Priority Mail and First Class Mail) must be
    sent to the Commission's Secretary, Marlene H. Dortch, Federal
    Communications Commission, Office of the Secretary, 445 12th Street,
    S.W., Washington D.C. 20054. All filings sent to the Commission by
    overnight delivery, *e.g.*, Federal Express (other than by U.S.
    Postal Service Express Mail and Priority Mail), must be sent to the
    Commission\'s Secretary, Marlene H. Dortch, Federal Communications
    Commission, Office of the Secretary, 9300 East Hampton Drive,
    Capitol Heights, MD 20743. All hand-delivered or messenger-delivered
    filings must be delivered to the Commission's filing location at 236
    Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002-4913.
    The filing hours at this facility 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 entering the
    building.

39. Parties who choose to file by paper should also submit their
    comments on diskette to: G. William Stafford, Commercial Wireless
    Division, Wireless Telecommunications Bureau, Federal Communications
    Commission, 445 12th Street, S.W., Washington, D.C. 20554. The
    required diskette copies of submissions should be on 3.5-inch
    diskettes formatted in an IBM compatible format using Microsoft Word
    or compatible software. Each diskette should be accompanied by a
    cover letter and should be submitted in "read only" mode. The
    diskette should be clearly labeled with the commenter's name,
    proceeding, type of pleading (comment or reply comment), date of
    submission, and the name of the electronic file on the diskette. The
    label should also include the following phrase "Disk Copy -- Not an
    Original." Each diskette should contain only one party's pleadings,
    preferably in a single electronic file. In addition, commenters must
    send diskette copies to the Commission's copy contractor, Qualex
    International, Portals II, 445 12th Street S.W., CY-B402,
    Washington, D.C. 20554.

40. Regardless of whether parties choose to file electronically or by
    paper, parties should also serve the following with either one copy
    of each filing via e-mail or two paper copies: (1) Qualex
    International, Portals II, 445 12th Street, S.W., Room CY-B402,
    Washington, D.C., 20554 (telephone (202) 863-2893; facsimile (202)
    863-2898) or e-mail at qualexint@aol.com; and (2) G. William
    Stafford, Federal Communications Commission, Room 6329, 445 12th
    Street, S.W., Washington, D.C. 20554, or e-mail at
    <Bill.Stafford@fcc.gov>.

41. Comments and reply comments will be available for public inspection
    during regular business hours in the FCC Reference Information
    Center, Federal Communications Commission, 445 12th Street, S.W.,
    Room CY-A257, Washington, D.C. 20554. These documents also will be
    available electronically from the Commission's Electronic Comment
    Filing System. Copies of filings in this proceeding may be obtained
    from Qualex International, Portals II, 445 12th Street, S.W., Room
    CY-B402, Washington, D.C., 20554, telephone (202) 863-2893,
    facsimile (202) 863-2898, or via e-mail at <qualexint@aol.com>. To
    request materials in accessible formats for people with disabilities
    (braille, large print, electronic files, audio format), send an
    e-mail to <fcc504@fcc.gov> or call the Consumer & Governmental
    Affairs Bureau at 202-418-0531 (voice), 202-418-7365 (tty).

# ordering clauses

42. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in Sections 1, 4(i), 303(r) of the Communications Act, 47 U.S.C.
    Sections 151, 154(i), and 303(r), this Notice of Inquiry is ADOPTED.

    FEDERAL COMMUNICATIONS COMMISSION

#   {#section .unnumbered}

Marlene H. Dortch

Secretary

[^1]: *See* 47 C.F.R. §§ 1.1301-1.1319.

[^2]: *See* Federal and State Roles, U.S. Fish & Wildlife Service,
    Division of Migratory Bird Management, *at*
    <http://migratorybirds.fws.gov/mgmt/fedrole.html> (last visited
    August 14, 2003).

[^3]: *See* 50 C.F.R. § 10.13 (list of migratory bird species protected
    by Migratory Bird Treaty Act); *see also* Revised List of Migratory
    Birds, 66 Fed. Reg. 52,282 (October 12, 2001).

[^4]: *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) (Manville) (discussing known and suspected causes of bird
    collisions with communications towers). Communications towers also
    may have an impact on migratory birds during their daily movements
    within an area, and on shorebirds, waterfowl, raptors, other
    songbirds, and other bird groups.

[^5]: *Id.*

[^6]: *See, e.g.,* *id.* (discussing deaths of estimated 5,000-10,000
    migratory songbirds at or in vicinity of three communications towers
    and a natural gas pumping facility in Kansas).

[^7]: *Cf.* Manville (stating that research concerning the presumed or
    suspected causes of bird collisions with towers "is sorely
    lacking.").

[^8]: *See* 47 U.S.C. § 151.

[^9]: 47 U.S.C. § 151.

[^10]: *See id.* § 309(j)(3)(A), (D).

[^11]: Preamble to Telecommunications Act of 1996, Pub. L. No. 104-104,
    110 Stat. 56 (1996) (1996 Act).

[^12]: *See* 47 U.S.C. § 309(j)(14)(A)-(B). The DTV transition period
    may be extended by the Commission. 47 U.S.C. § 309(j)(14)(B). The
    Commission has adopted rules to permit the nation's broadcasters to
    implement the conversion to digital television in accordance with
    the 1996 Act. *See* Advanced Television Systems and Their Impact
    upon the Existing Television Broadcast Service, *Fifth Report and
    Order*, 12 FCC Rcd 12809 (1997).

[^13]: *See* 47 U.S.C. § 303(c); 47 C.F.R. §§ 90.15-90.22.

[^14]: *See* Wireless Communications and Public Safety Act of 1999, Pub.
    L. No. 106- 81, enacted Oct. 26, 1999, 113 Stat. 1286, amending the
    Communications Act of 1934, §§ 222, 251 (911 Act). The Commission
    has taken steps to implement the 911 Act. Implementation of 911 Act,
    *Fifth Report and Order, Memorandum Opinion and Order on
    Reconsideration*, 16 FCC Rcd 22264 (2001).

[^15]: 47 U.S.C. § 301.

[^16]: Section 319 of the Act provides that "\[n\]o license shall be
    issued under the authority of this chapter for the operation of any
    station unless a permit for its construction has been granted by the
    Commission." 47 U.S.C. § 319(a). Construction permits are defined as
    "instrument\[s\] of authorization required by this chapter or the
    rules and regulations of the Commission . . . for the construction
    of a \[radio\] station . . . ." *Id.* § 153(12). Construction
    permits are required for broadcast stations, unless the Commission
    has by regulation determined that a permit shall not be required for
    minor changes in the facilities of authorized broadcast stations.
    *Id.* § 319(d). Construction permits are not required for
    government, amateur, and mobile stations, and the Commission may
    waive the requirement for certain other licenses if it finds that
    the public interest, convenience or necessity would be served. *Id.*
    The Commission has provided that certain applicants in the public
    mobile services do not require a construction permit, *see* Revision
    and Update of Part 22 of the Public Mobile Radio Services Rules,
    *Report and Order*, 95 FCC 2d 769, 773-74 ¶ 16 (1987), and may
    construct facilities prior to the grant of their application. *See*
    47 C.F.R. § 22.143. In contrast, construction permits are required
    for broadcast service applicants. *See* 47 C.F.R. § 73.3533.

[^17]: 47 U.S.C. § 307(b). In keeping with its statutory mandate, the
    Commission presumes that every community of \"appreciable size,"
    Plainview Radio, *Decision*, 24 FCC 405, 421 ¶ 13 (1958), needs at
    least one radio station for local self-expression. Bie Broadcasting
    Co., *Decision*, 81 FCC 2d 1, 26 ¶ 47 (Rev. Bd. 1980), *rev.
    denied*, *Memorandum Opinion and Order*, 87 FCC 2d 490 (1981). The
    Commission\'s broadcast allotment criteria thus attempt to avoid
    undue concentration of broadcast stations -- and, incidentally,
    broadcast transmission towers -- in any area, particularly in urban
    areas. *See Pasadena Broadcasting Co. v. FCC*, 555 F.2d 1046, 1050
    (D.C. Cir. 1977).

[^18]: 47 U.S.C. § 303(q).

[^19]: *Id*.

[^20]: 47 C.F.R. § 17.4(a).

[^21]: This includes antenna structures that currently exist, or that
    have been proposed to be built or modified.

[^22]: 47 C*.*F.R. §§ 17.6(a), 17.22, 17.23, and note preceding 47
    C.F.R. § 17.45 (High Intensity White Obstruction Lighting).

[^23]: 42 U.S.C. §§ 4321-4335.

[^24]: *Id.* § 4332(2)(c).

[^25]: 40 C.F.R. § 1508.14.

[^26]: 42 U.S.C. § 4332(2)(c).

[^27]: 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).

[^28]: *Id*. § 1536(a)(2). "Federal agency" includes any "department,
    agency, or instrumentality of the United States." *Id*. § 1532(7).

[^29]: *See* 16 U.S.C. §§ 703, 704(a). FWS does not issue permits for
    incidental or accidental takes under the MBTA.

[^30]: In addition, executive branch agencies are subject to Executive
    Order 13,186, 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.
    13,186, 66 Fed. Reg. 3,853 (Jan. 10, 2001). Section 2(g) of Exec.
    Order No. 13,186 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.

[^31]: *See* 47 C.F.R. § 1.1301; 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) (*Order Amending
    Environmental Rules*).

[^32]: 47 C.F.R. § 1.1305.

[^33]: *Id*. § 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 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 limits that the Commission has adopted. *See* 47 C.F.R. §§
    1.1310, 2.1093. An explanation of RF energy may be found in the
    Commission's OET Bulletin 56, *Questions and Answers About
    Biological Effects and Potential Hazards About Radiofrequency and
    Electromagnetic Fields* (4^th^ Ed., August 1999), *available at*
    <http://www.fcc.gov/Bureaus/Engineering_Technology/Documents/bulletins/oet56/oet56e4.pdf>
    (Aug. 1999).

[^34]: *See* 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 as part
    of the decision-making process, 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
    staff that is responsible for processing an action that may not
    otherwise require an EA shall, on its own motion, require the
    preparation of an EA, if the Bureau determines that the proposal may
    have a significant environmental impact.

[^35]: 47 C.F.R. § 1.1306(a). *See also* 40 C.F.R. § 1507.3(b)(2)(ii)
    (CEQ's rules providing that agency procedures shall identify those
    typical classes of action that normally do not require either an
    environmental impact statement or an environmental assessment,
    *i.e*., categorical exclusions); s*ee also* 40 C.F.R. § 1508.4
    (definition of "categorical exclusion"); 40 C.F.R. §§ 1500.4(p) and
    1500.5(k) (federal agencies shall reduce excessive paperwork and
    delay by using categorical exclusions to define categories of
    actions that do not individually or cumulatively have a significant
    effect on the human environment).

[^36]: *See* 47 C.F.R. § 17.4; Streamlining the Commission's Antenna
    Structure Clearance Procedure, *Report and Order,* 11 FCC Rcd 4272
    (1995); FCC Form 854 (Application for Antenna Structure
    Registration) Item 38.

[^37]: *See, e.g.,* FCC Form 601 (Application for Wireless
    Telecommunications Bureau Radio Service Authorization); FCC Forms
    301 and 301-CA (Application for Construction Permit for Commercial
    Broadcast Station; Application for Authority to Make Changes in a
    Class A Television Broadcast Station); FCC Form 340 (Application for
    Construction Permit for Reserved Channel Noncommercial Educational
    Broadcast Station). 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 or is
    categorically excluded under the Commission's environmental rules.
    47 C.F.R. § 1.1312(a). If the proposed facility may have a
    significant environmental impact, appropriate environmental
    processing shall be completed prior to construction. *See id.* §
    1.1312(b). If the proposed facility is categorically excluded under
    the Commission's environmental rules, construction and operation of
    the facility may proceed in accordance with the applicable licensing
    rules and procedures. *Id.* § 1.1312(c).

[^38]: *See* 47 C.F.R. § 1.1308. The Commission's rules provide that if
    an EA is required to be prepared, it "shall deal specifically with
    any feature of the site which has special environmental significance
    (e.g., . . . natural migration paths for birds and other wildlife .
    . . )." 47 C.F.R. § 1.1311(b). In adopting its initial comprehensive
    environmental rules in 1974, which have since been amended, *see
    Order Amending Environmental Rules*, the Commission stated that the
    location of antenna towers exceeding 500 feet in height along
    favored bird migration routes should be avoided, if possible and, if
    not, should be discussed by the applicant. Implementation of the
    National Environmental Policy Act of 1969, *Report and Order*, 49
    FCC 2d 1313, 1328 ¶ 38 (1974), *on recons.,* 56 FCC 2d 635 (1975).

[^39]: 47 C.F.R. § 1.1307(a)(3).

[^40]: *Id.* § 1.1308 note; *see* *id.* § (a)(3).

[^41]: *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* 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) (Division addressing concerns regarding 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)
    (Bureau finding that proposed tower would not have a significant
    effect on the environment due to bird mortality).

[^42]: *See* Memorandum from Jamie Rappaport Clark, Director, U.S. Fish
    and Wildlife Service, U.S. Department of the Interior, to FWS
    Regional Directors (*FWS Tower Siting Guidelines*), *available at*
    <http://migratorybirds.fws.gov/issues/towers/comtow.html> (Sept. 14,
    2000).

[^43]: *Id.* *See* Section III.C., *infra* (discussing content of *FWS
    Tower Siting Guidelines*).

[^44]: *FWS Tower Siting Guidelines* (introductory letter). The
    guidelines were not adopted through notice and comment procedures.

[^45]: *See, e.g.*, Robert L. Crawford and R. Todd Engstrom,
    *Characteristics of Avian Mortality at a North Florida Television
    Tower: A 29-Year Study*, Field Ornithology (Apr. 20, 2001, Allen
    Press) (Tall Timbers) (29-year study of birds killed at a television
    tower in Florida); Kemper, C., *A Study of Bird Mortality at a West
    Central Wisconsin TV Tower from 1957-1995*, Passenger Pigeon
    58:219-235 (1996) (Kemper) (study over a 38-year period; single day
    event also described); Morris, S., Clark, A., Bhatti, L., and
    Glasgow, J., *Television Tower Mortality of Migrant Birds in Western
    New York and Youngstown, Ohio*, Northeastern Naturalist 10(1):67-76
    (2003).

[^46]: Lighting on towers appears to have been documented as an
    attractant for migratory birds. *See, e.g.,* Cochran, W.W. and R.R.
    Graber, *Attraction of nocturnal migrants by lights on a television
    tower*, Wilson Bull. 70: 378-380 (1958) (Cochran and Graber).

[^47]: Paul Kerlinger, *Avian Mortality at Communications Towers: A
    Review of Recent Literature, Research, and Methodology*, Prepared
    for the United States Fish and Wildlife Service, Office of Migratory
    Bird Management (2000) (Kerlinger), *available at*
    <http://migratorybirds.fws.gov/issues/towers/review.pdf> (Mar.
    2000).

[^48]: *See* Manville (asserting that four to five million birds killed
    per year is a conservative estimate).

[^49]: *See* Kerlinger at 4 (claiming that estimates of birds killed
    annually by communications towers range between 4 and 10 million).

[^50]: *See, e.g.,* Tall Timbers; Kemper; Manville (5,000-10,000 birds
    killed in single incident in Kansas); Erickson, *et al*., *Avian
    Collisions with Wind Turbines: A Summary of Existing Studies and
    Comparisons to Other Sources of Avian Collision Mortality in the
    United States*, National Wind Coordinating Committee, at ll (2001)
    (NWCC Report),
    <http://www.nationalwind.org/pubs/avian_collisions.pdf> (Aug. 2001).

[^51]: The Commission has relied on other expert agencies with respect
    to determining appropriate standards in the environmentally
    sensitive area of health and safety RF emissions guidelines, when it
    lacked expertise to develop such guidelines on its own. *See*
    Guidelines for Evaluating the Environmental Effects of
    Radiofrequency Radiation, *Report and Order*, 11 FCC Rcd 15123,
    15124 ¶¶ 1-2 & n.1, 15134-35 ¶ 28, 15150 ¶ 71 (1996), *on recons*.,
    *Second Memorandum Opinion and Order*, 12 FCC Rcd 13494 (1997),
    *aff'd, Cellular Phone Taskforce v. FCC*, 205 F.3d 82 (2d Cir.
    2000), *cert. denied*, 531 U.S. 1070 (2001) (adopting guidelines
    based substantially on recommendations of the U.S. Environmental
    Protection Agency, the Food and Drug Administration, and on criteria
    published by the National Council on Radiation Protection and
    Measurements (NCRP) and by the American National Standards
    Institute/Institute of Electrical Engineers, Inc. (ANSI/IEEE); *see
    also* 47 C.F.R. § 1.1307(b).

[^52]: *See* Manville, citing Crawford, R.L. and Engstrom, R.T., Remarks
    on Lights, Towers, and Avian Mortality: Where is the Science at
    117^th^ Meeting of the Am. Ornithologist's Union at Cornell Univ.,
    Conference on Avian Mortality at Communication Towers (Aug. 11,
    1999), *available at*
    <http://migratorybirds.fws.gov/issues/towers/engstrom.html> (last
    visited August 14, 2003); Cochran and Graber.

[^53]: *See* Manville, citing Graber, R.R., *Nocturnal Migration in
    Illinois \-- Different Points of View*, Wilson Bull. 80: 36-71
    (1968). The Tall Timbers research controlled its study to account
    for cloud ceiling height, which it asserts was the most important
    weather factor in causing bird deaths at the location. *See* Tall
    Timbers at 381, 385.

[^54]: *See* Manville, citing Beason, R.C., Remarks on The Bird Brain:
    Magnetic Cues, Visual Cues, and Radio Frequency (RF) Effects at
    117^th^ Meeting of the Am. Ornithologist's Union at Cornell Univ.,
    Conference on Avian Mortality at Communication Towers (Aug. 11,
    1999), *available at*
    <http://migratorybirds.fws.gov/issues/towers/beason.html> (last
    visited August 14, 2003). Although further research may be
    necessary, the retina of a bird's eye is sensitive to red and
    ultraviolet spectra, and thus birds may be attracted to red lights.
    *See* Manville.

[^55]: *See* Manville, citing Gauthreaux, S.A., Jr. and Belser, C.G.,
    Remarks on the Behavioral Responses of Migrating Birds to Different
    Lighting Systems on Tall Towers at 117^th^ Meeting of the Am.
    Ornithologist's Union at Cornell Univ., Conference on Avian
    Mortality at Communication Towers (Aug. 11, 1999), *available at*
    <http://migratorybirds.fws.gov/issues/towers/gauttalk.html> (last
    visited August 14, 2003). *See also* *FWS Tower Siting Guidelines*
    No. 5 (stating that current research indicates that solid or
    pulsating (beacon) red lights attract night-migratory birds at a
    higher rate than white strobe lights). However, evidence relating to
    which form of lighting may be attractive to neotropical migratory
    birds may not apply to seabirds or other species.

[^56]: *See* 47 C.F.R. §§ 17.6(a), 17.22, 17.23, and note preceding 47
    C.F.R. § 17.45.

[^57]: *See* Kerlinger at 30.

[^58]: *See* Kemper at 230 (identifying tower height of at least 400
    feet as one of several major factors that cause severe problems for
    migratory birds); Tall Timbers at 380, 383 (finding that far fewer
    birds were killed when tower was 94 meters (approximately 300 feet)
    than when the tower was in the 200-300 meter range of height);
    Kerlinger at 14-15 summarizing Kemper (noting that dead birds were
    found only after the height of the tower was increased from 500 to
    1,000 feet, and that height, guy wires, and weather were responsible
    for the bird deaths).

[^59]: *See* Kerlinger at 2 (discussing certain studies).

[^60]: *Cf.* Kerlinger at 30 (discussing that literature is nearly
    devoid of information about bird deaths and collisions at small
    towers (less than 400 feet)).

[^61]: *See* Kemper at 230 (presence of guy wires supporting tower is a
    major danger factor to birds); Manville (Known and Suspected
    Problems).

[^62]: *See* Statement of Policy on Establishing a
    Government-to-Government Relationship with Indian Tribes, *Policy
    Statement*, 16 FCC Rcd 4078, 4081 (2000).

[^63]: *See supra* ¶ 16 (discussion relating to monitoring tower sites
    for dead birds).

[^64]: *See* FWS, Div. of Migratory Bird Mgmt., About Us, *at*
    <http://migratorybirds.fws.gov/INTROMSG.HTML> (last visited August
    14, 2003); FWS, Div. of Migratory Bird Mgmt., Bird Monitoring, *at*
    <http://migratorybirds.fws.gov/statsurv/mntrtbl.html> (last revised
    Aug. 21, 2001).

[^65]: A possible source of funding may be matching funds from the
    National Fish and Wildlife Foundation. *See* National Fish and
    Wildlife Foundation, Foundation Grant Programs, *at*
    <http://www.nfwf.org/programs/programs.htm> (last visited August 14,
    2003).

[^66]: *FWS Tower Siting Guidelines*.

[^67]: *Id*.

[^68]: *See supra* ¶ 12.

[^69]: *FWS Tower Siting Guidelines*.

[^70]: In addition, we note that FWS did not seek formal public comment
    on the guidelines. Therefore, all parties with a potential interest
    may not have had the opportunity to participate in the development
    of the guidelines and present their own relevant scientific data.

[^71]: As noted above, the Commission is not required to enter into an
    MOU with FWS under Executive Order 13,186 with respect to migratory
    birds. *See supra* note 30.

[^72]: 47 C.F.R. § 1.1204(b)(1).

[^73]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    63 Fed. Reg. 24,121 (May 1,1998).