At its upcoming Open Meeting, most eyes will focus on whether the Federal Communications Commission approves AT&T's application to purchase BellSouth, creating the biggest telecommunications entity in the United States. But the agency will also ponder a matter that began vexing the Commission long before the AT&T controversy: the safety of birds in the Texas Gulf Coast and southwest.

During the Friday, November 3rd gathering, the FCC will once again tackle measures to protect migrating birds in Texas, Louisiana, and Oklahoma from electrified transmitter systems set up by wireless companies. The agenda simply says that the agency will "consider a Notice of Proposed Rulemaking on whether it should adopt certain measures to mitigate migratory bird collisions with communications towers."

Such language might lead the innocent observer to think that the FCC had just encountered this problem.

Background

In August 2002, the Forest Preservation Council, the American Bird Conservancy, and the Friends of the Earth petitioned the FCC, asking the Commission to stop registering new communications towers until the completion of an environmental review. These groups cited a memorandum issued by the U.S. Department of Interior's Fish and Wildlife Service in 2000, which noted that the building of communications towers in the U.S. had been growing at an "exponential rate," as had the size of the towers themselves, many now well over 200 feet in height:

The construction of new towers creates a potentially significant impact on migratory birds, especially some 350 species of night-migrating birds. Communications towers are estimated to kill 4-5 million birds per year, which violates the spirit and the intent of the Migratory Bird Treaty Act and the Code of Federal Regulations at Part 50 designed to implement the MBTA. Some of the species affected are also protected under the Endangered Species Act and Bald and Golden Eagle Act.

The memo urged all Fish and Wildlife field personnel to ask FCC personnel to encourage telcos to build new transmitter towers more cautiously, constructing them around existing transmitter structures and keeping them below 199 feet in height, among other suggestions.

But the three environmental groups went further, asking the Commission to require tower owners in the Gulf region to complete environmental assessments of over 5,500 previously constructed towers and to issue a moratorium on the construction of any new towers until then.

The Commission responded to the 2002 petition with a Notice of Inquiry (NOI) asking for public comment on the matter, which the three organizations denounced as a delaying tactic.

"There are no time limits for the completion of the NOI and no proposed actions to benefit birds and prevent the annual killing of millions of birds," their response to the NOI, filed in November of 2003, charged. "The NOI could proceed indefinitely, thus providing another convenient excuse to continue the FCC's years of delays in addressing the killing of millions of migratory birds at towers."

Nonetheless the Notice went forward. Interestingly, the proceeding received detailed comments from various Native American nations. The Chickasaws expressed concern that the increase in towers "could impact several migratory bird populations which would be detrimental to the cultural and religious interests of the Chickasaw Nation."

The Cherokee filed as well, citing potential danger to a variety of song birds, including the Brown Thresh, Chickadee, Snowbird, Wren, Robin, Red Bird, and Blue Jay.

"It will be a sad day when the Eastern Band of Cherokee Indians Bird Clan will only be able to tell the story of the bird and not hear these special species know to this region," they wrote.

Hurry up and wait

But big telcos filed too. The Cellular Telecommunications and Internet Association (CTIA) submitted a lengthy reply to comments in December of 2003, denouncing what they called the "regulate now" stance of the environmental groups.

"These and other commenters who want to 'regulate now and find out the facts later' do not dispute that the basic science is still nonexistent regarding what factors in tower construction and design may affect avian mortality," CTIA wrote, concluding that "no further action or change in the FCC's regulation is appropriate at this time."

This stalemate continued for over two more years. Finally on April 12th, 2006, in the wake of Hurricane Katrina, the Commission declined to issue a moratorium on new transmitters, for which the three environmental groups had petitioned.

"While I am sympathetic to a number of issues raised in the petition before us today, the petition just is not the right vehicle for these overarching concerns," FCC Commissioner Jonathan Adelstein said in response to the decision. "This is particularly true when you consider the rebuilding efforts that will be so critical to the Gulf Coast area over the next several months, particularly with a new hurricane season rapidly approaching."

The FCC did say that it would issue a Notice of Proposed Rulemaking to further explore the impact of communications towers on migrating birds. That may be the action taken at the agency's upcoming Open Commission meeting, scheduled for November 3rd.