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 Federal  Communications  Commission  FCC  03-  205 
 1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


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


 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. 
 I.  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 
 1  See  47  C.  F.  R.    1.1301-  1.1319. 
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 relevant  to  migratory  bird  collisions  with  communications  towers,  and  on  whether  such  research  would  support  changes  within  the  structure  of  our  current  rules  and  processes  specifically  related  to  protection  of 
 migratory  birds. 
 II.  BACKGROUND 
 3.  Communications  towers  and  other  structures  that  support  antennas  provide  the  infrastructure  for  services  licensed  by  the  Commission,  including  broadcast  television  and  radio,  cellular,  Personal 


 Communications  Service  (PCS),  Specialized  Mobile  Radio  (SMR),  and  other  advanced  and  emerging  services.  Communications  towers  also  are  used  for  the  provision  of  private  radio  services  used  by 
 business  and  government,  and  for  public  safety  purposes. 
 4.  Migratory  birds  breed  throughout  the  United  States  and  Canada  and,  in  the  fall  of  each  year,  migrate  to  the  southern  United  States,  Mexico,  and  Central  and  South  America  for  the  winter.  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 


 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.). 
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 A.  Licensing  and  Regulation  of  Radio  Communications  Services  and  Antenna  Structures 
 5.  The  Commission  was  created  to  regulate  communications  by  wire  and  radio  in  the  United  States.  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 


 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  nations  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 


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 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  Commissions  rules).  As  of  June  1,  2003,  approximately  92,454  antenna  structures  were  registered  with 
 the  Commission.  21  The  Commissions  rules  further  require  that  tower  owners  paint  and  light  their  antenna  structures  in  accordance  with  the  FAAs  advisory  specifications  for  air  navigation  safety 
 purposes.  22 


 (Continued  from  previous  page)  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). 
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 B.  Environmental  Statutes  and  Regulations 
 7.  The  National  Environmental  Policy  Act  (NEPA)  is  the  basic  national  charter  for  protection  of  the  environment,  and  requires  federal  agencies  to  establish  procedures  to  identify  and  account  for  the 


 environmental  impact  of  projects  they  undertake  or  authorize.  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  Qualitys  (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 


 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, 
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 C.  The  Commissions  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 


 (Continued  from  previous  page)  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  Commissions  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. 
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 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 


 35  47  C.  F.  R.    1.1306(  a).  See  also  40  C.  F.  R.    1507.3(  b)(  2)(  ii)  (CEQs  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);  see  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  Commissions  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  Commissions  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  Commissions  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 
 Commissions  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  Commissions  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). 
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 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  Commissions 
 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 
 D.  Developments  Relating  to  Migratory  Birds  and  the  Construction  of  Communications  Towers 


 12.  A  Communication  Tower  Working  Group  (CTWG)  consisting  of  representatives  from  the  scientific,  federal  and  state  agency,  environmental,  consulting,  and  industry  communities  was  formed 
 under  the  auspices  of  FWS  to  help  develop  research  on  the  effect  that  communications  facilities  may  have  on  migratory  birds.  The  research  issues  include  the  roles  that  certain  factors  associated  with 
 communications  towers,  including  lighting,  height,  and  the  type  of  tower,  may  have  on  migratory  birds.  The  CTWG  also  has  sought  to  examine  the  potential  for  research  into  measures  that  may  minimize 
 migratory  bird  collisions  with  towers.  On  September  14,  2000,  FWS  issued  its  Service  Guidance  on  the  Siting,  Construction,  Operation  and  Decommissioning  of  Communications  Towers,  which  includes 
 voluntary,  interim  guidelines  to  be  used  by  FWS  personnel  and  recommended  for  use  by  the  communications  tower  industry  in  considering  proposed  tower  sitings  for  their  impacts  on  endangered 
 species  and  migratory  birds.  42  The  guidelines  are  to  be  used  by  FWS  personnel  until  the  CTWGs  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 


 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  Commissions  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). 
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 refined  through  FWS  regional  review.  44 
 III.  REQUEST  FOR  COMMENTS 
 A.  Current  State  of  Scientific  Information 
 13.  The  impact  that  communications  towers  may  have  on  migratory  birds  has  been  the  subject  of  study  or  other  analysis  for  decades,  and  several  reports  have  shown  bird  deaths  at  individual  locations 


 during  a  single  day  or  over  multiple  years.  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 


 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  (continued.) 
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 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 
 (Continued  from  previous  page)  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),  affd,  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). 
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 scavenger  removal  (e.  g.,  clearing  of  areas  around  the  base  of  the  tower  or  use  of  netting)?  Comments  should  also  address  any  other  measures  that  were  or  were  not  used  to  account  or  control  for  other  relevant 
 variables,  such  as  whether  efforts  were  made  to  reduce  lighting  located  near  but  not  on  the  towers  that  otherwise  could  attract  migratory  birds.  We  seek  a  critical  analysis  of  the  research,  which  examines  both 
 the  adequacies  and  inadequacies  of  the  research,  its  methodologies,  findings,  and  conclusions. 
 1.  Tower  Lighting 
 17.  Lighting  may  be  an  important  factor  in  attracting  and/  or  disorienting  migratory  birds  at  communications  towers.  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 


 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.  Ornithologists  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.  Ornithologists  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  birds  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.  Ornithologists  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. 
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 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. 


 2.  Tower  Height 
 20.  The  height  of  towers  may  contribute  to  the  extent  of  their  impact  on  migratory  birds.  One  report  suggests  that  an  important  analysis  would  be  to  compare  towers  of  different  heights,  that  there  have 


 been  relatively  few  studies  of  towers  less  than  400  feet  in  height,  and  that  certain  literature,  although  perhaps  only  suggestive,  does  not  generally  implicate  such  shorter  towers  in  a  significant  number  of  bird 
 deaths.  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 


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


 3.  Type  of  Antenna  Structure 
 22.  The  type  of  antenna  support  structure  may  be  another  important  factor  in  the  extent  to  which  communications  towers  have  an  impact  on  migratory  birds.  For  example,  guy  wires  could  create  a  level 


 of  risk  to  migratory  birds  that  is  not  present  with  unguyed  towers.  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. 
 4.  Location  of  Antenna  Structures  and  Other  Factors 
 23.  We  seek  comment  on  research  or  other  data  relating  to  any  other  matters  within  the  scope  of  this  inquiry.  For  example,  is  there  information  concerning  the  impact  on  migratory  birds  of 


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


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


 B.  Need  for  and  Scope  of  Additional  Study 
 25.  In  the  event  that  parties  believe  that  existing  research  is  insufficient  to  permit  the  Commission  to  address  fully  the  issue  of  migratory  bird  collisions  with  towers,  we  seek  comment  on  what  additional 


 study  or  studies  may  be  needed.  We  ask  for  comment  on  what  variables  the  research  should  address,  including  possible  lighting  regimes,  tower  height,  type  of  structure,  location,  and  impact  of  different 
 weather  conditions.  Comments  should  discuss  the  specific  scope  and  parameters  of  recommended  studies,  including:  the  number  of  towers;  different  lighting  regimes  to  be  studied;  whether  a  range  of 
 towers  with  different  heights  should  be  included;  the  geographic  positioning  of  towers,  including  such  factors  as  the  incidence  of  inclement  weather,  topography,  and  proximity  to  areas  that  may  be  attractive  to 
 migrating  birds,  such  as  wetlands;  and  the  different  tower  structures  such  as  guyed  or  unguyed,  including  monopole,  lattice,  or  other  structures.  We  also  seek  comment  on  what  types  of  procedures  should  be  used 
 to  monitor  birds  that  may  be  killed  at  communications  towers  during  these  studies.  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  Commissions  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 


 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). 
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 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. 
 C.  Suggested  Methods  to  Minimize  Impacts 
 29.  We  seek  comment  on  whether  existing  studies  or  research  address  the  use  of  particular  methods  to  minimize  any  impact  of  communications  towers  on  migratory  birds.  For  example,  would 


 particular  lighting  systems,  devices  located  on  or  near  facilities  to  deter  migratory  birds,  or  other  measures  help  to  minimize  bird  collisions  with  communications  towers?  Comments  should  identify  any 
 particular  methods,  discuss  the  extent  to  which  they  have  been  used  on  communications  towers  or  other  similar  relevant  structures,  and  quantify  the  results  of  their  use.  In  addition,  would  alternative  siting  of 
 towers  to  avoid  particular  areas  be  a  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  Commissions  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  CTWGs  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 


 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. 
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 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 


 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. 
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 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? 


 IV.  PROCEDURAL  ISSUES 
 A.  Ex  Parte  Presentations 
 35.  This  is  an  exempt  proceeding  in  which  ex  parte  presentations  are  permitted  (except  during  the  Sunshine  Agenda  period)  and  need  not  be  disclosed.  72 


 B.  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  Commissions  mail  delivery  system,  parties  are 


 strongly  urged  to  use  the  ECFS  to  file  their  pleadings.  Comments  filed  through  the  ECFS  can  be  sent  as  an  electronic  file  via  the  Internet  to  <http://  www.  fcc.  gov/  e-  file/  ecfs.  html>.  Generally,  only  one  copy  of 
 an  electronic  submission  must  be  filed.  In  completing  the  transmittal  screen,  electronic  filers  should  include  their  full  name,  Postal  Service  mailing  address,  and  the  applicable  docket  number.  Parties  may 
 also  submit  an  electronic  comment  by  Internet  e-  mail.  To  receive  filing  instructions  for  e-  mail  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  Commissions  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- 
 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). 
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 delivered  or  messenger-  delivered  filings  must  be  delivered  to  the  Commissions  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  commenters 
 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  partys  pleadings,  preferably  in  a  single  electronic  file.  In  addition,  commenters  must  send  diskette  copies  to  the  Commissions  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  Commissions  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). 
 V.  ORDERING  CLAUSES 
 42.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  the  authority  contained  in  Sections  1,  4(  i),  303(  r)  of  the  Communications  Act,  47  U.  S.  C.  Sections  151,  154(  i),  and  303(  r),  this  Notice  of  Inquiry  is 


 ADOPTED. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 
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