TOWER POLICY COMPLICATED BY BIRD CONCERNS, PENDING REVIEWS

Also pending before FCC is application by Friends of the Earth (FOE) and Forest Conservation Council seeking review of Jan. order by deputy chief of Commercial Wireless Div. that dismissed 29 objections and petitions to deny filed by groups on tower siting proposals. Order concluded groups lacked standing to file petitions. In application for review, FOE and Forest Council contended FCC hadn’t previously resolved issues they raised. At issue, they said, are “important questions of law and policy including proper standards for standing, organizational standing and, most importantly, whether the Commission should rectify its violations of the National Environmental Policy Act (NEPA) and consider the devastating impacts of communications towers on migratory and endangered birds.” FCC order concluded that groups had failed to demonstrate direct link between alleged harm and proposed wireless antenna structures and lacked information such as letters from nearby residents who would be directly affected. Every week between Feb. 23 and April 6, 2001, FOE and Forest Conservation Council had filed petitions on 40 applications to register antenna structures, asking FCC to conduct more detailed environmental review of impact of wireless towers.

Besides pending application for review, groups have continued to challenge individual antenna structures. In Feb., they submitted petitions to deny antenna structure applications by Crown Communications, GTE Mobilnet of S. Tex., Tower Equities. Groups stressed their standing on issue, citing harm to their “organizational interests in the preservation of migratory birds and endangered species.” Petition said: “We request that the FCC take official notice of FOE’s interest in enforcing the nation’s environmental laws.” Filing asked that before approving future tower applications, Commission ensure requirements of Migratory Bird Treaty Act (MBTA) and Clinton-era Executive Order on migratory bird management “be met at both the site-specific and programmatic level.”

Several wireless industry officials said migratory bird issue, which has been raised as concern by federal agencies such as FAA and U.S. Fish & Wildlife Service, was becoming more frequent theme in challenges to tower siting decisions. Recent ruling by U.S. Dist. Court, D.C., could provide legal leverage in that area, wireless industry source said. Center for Biological Diversity prevailed in lawsuit against Navy and Dept. of Defense for alleged violations of MBTA, which bars killing or harming migratory bids in absence of regulatory permit. In order released May 1, U.S. Dist. Judge D.C. Emmet Sullivan concluded that in live fire training by military on Pacific island of Farallon de Medinilla, exercises were killing and harming migratory species without permit. “By killing and harming migratory birds on a daily basis, defendants continue to violate the MBTA and the APA [Administrative Procedure Act] and only an injunction halting all of those activities will suffice to ensure immediate compliance with those statutes,” he wrote. Private right to sue and seek injunctive relief under such circumstances is provided by APA, Sullivan concluded. Industry attorney said that before that ruling, courts largely had ruled that MBTA was criminal statute. Sullivan took different path by saying that private parties could sue to enforce those provisions under APA, attorney said. Groups demanding that FCC insist on program environmental impact statements to assess effects of towers on migratory birds “now have a case that says this condition is illegal and you can sue,” source said.

White House Council on Environmental Quality (CEQ) also has stepped up its examination of migratory bird issue and towers, several sources said. Administration issued Executive Order in Jan. 2001 that directed cabinet-level agencies to examine MBTA when addressing environmental issues. Order doesn’t apply to independent agencies such as FCC, although Fish & Wildlife Service has been trying to work out agreement with Commission to incorporate some of those considerations, several sources said. CEQ took higher public profile on this issue in Jan. when Gen. Counsel Dinah Bear spoke at industry conference of need for FCC to examine its tower siting regulations in context of National Environmental Policy Act.

“I get the impression that CEQ is starting to focus more on this issue,” said another industry source who also cited Bear’s comments that FCC’s rules could be outdated since they applied to NEPA. Several sources said CEQ had offered to act as intermediary on those issues when they bogged down between different agencies that had jurisdiction. FCC had meeting on migratory bird issue earlier this month that involved wireless industry representatives and Fish & Wildlife Service. Wireless industry has argued that most significant problem with bird kills is largest towers, such as those for DTV, and that there was lack of up-to-date scientific evidence on impact of smaller cellular towers. As recently as 2000, however, Fish & Wildlife Service estimated that “conservative” estimates placed at 4 million the number of birds killed each year in N. America from collisions with communications towers. Service, which issued interim, voluntary siting guidelines for towers 2 years ago, said night-migrating songbirds faced particular danger, particularly those drawn to towers with pilot warning lights. FAA requires towers higher than 200 feet to have such lights, as well as all towers within 3 miles of airports.

Fundamental disagreement between FCC and environmental groups on tower issue has been that latter want Commission to look at cumulative impact of its siting policy and agency wants to look at tower-by-tower issues, said Dan Meyer, gen. counsel for Public Employees for Environmental Responsibility (PEER). “If you look at [siting] activities across the nation, with hundreds of thousands of towers, FCC as a federal agency is having an impact on the habitat of those birds,” Meyer said. “The Commission does not want to do the environmental work. They are trying to slice the review into ever smaller pieces so you can’t perceive the impact.”

CTIA asked FCC this month to “streamline” NEPA review process as part of broader filing that covered policy areas that group wanted FCC to review in light of recent U.S. Appeals Court, D.C., decision. Citing ruling involving biennial review of broadcast ownership rules, CTIA petitioned FCC to eliminate unnecessary regulations in 9 policy areas -- one of them tower siting. CTIA highlighted antenna structures not grandfathered under colocation agreement reached last fall by national and state historic preservation officers (SHPOs), federal officials, wireless industry. That accord streamlined review procedures for colocation of antennas under National Historic Preservation Act (NHPA) but exempted most colocations on existing towers from Advisory Council on Historic Preservation siting review procedures. Agreement let antennas be mounted on towers built on or before March 16, 2001, if certain conditions were met. CTIA said agreement would help streamline Sec. 106 review process under NHPA, but didn’t grandfather preexisting towers and structures that hadn’t cleared Sec. 106 review before deadline. That “undermines” agency’s support for colocation, CTIA said. It also said it wasn’t economically feasible for FCC, ACHP or state historic preservation officers to undertake Sec. 106 review of numerous towers erected before cut-off date but hadn’t undergone Sec. 106 review.

ACHP program analyst Charlene Dwin-Vaughn told us colocation agreement had been product of negotiations by SHPOs, ACHP, FCC, tribal representatives, others. “In negotiating that agreement, we attempted to construct a process that was fair, in recognition that probably less than 10% of the towers that had been put up prior to March 16 were compliant,” she told us. “We thought that we were being reasonable. We think that provides maximum flexibility. We went a long way in being accommodating with that particular issue.”

Rationale of CTIA had been that FCC and SHPOs had limited resources and they were better spent on reviewing proposed site. “Does it pay to spend those resources trying to review something that is up?” asked CTIA Asst. Gen. Counsel Andrea Williams. “Whether you like it or not, it’s not going anywhere.” She said that barring intense litigation, very rarely did challenges result in towers’ being dismantled: “Let’s focus on what do we need to do on a going-forward basis. If all towers need to go through a Sec. 106 review process, let’s figure out a way to streamline this process.” Meanwhile, govt.-industry group had been aiming to have agreement by late spring or early summer to streamline siting decisions for wireless and broadcast towers. Prototype program agreement under consideration by telecom working group organized by ACHP had been focusing on streamlining Sec. 106 historic preservation siting requirements. Several industry sources said FCC recently began review of document under development after ACHP came up with editorial changes in draft that were seen by some as not streamlining process.