FCC TO EXAMINE DATA ON TOWER IMPACT ON BIRD MORTALITY

“The challenge has been the lack of vigorous scientific evidence about the what the nature of the problem is,” Tramont said of the avian mortality issue. Groups including the American Bird Conservancy and the Forest Conservation Council sued the FCC in Feb. in the U.S. Appeals Court, D.C., challenging the agency’s environmental requirements for antenna structures and asking that new tower approvals be halted until the Commission implemented requirements for bird protection measures and initiated certain public participation procedures. Industry observers praised the FCC plan to focus on the scientific data behind claims of bird mortality, although some questioned how such efforts would be funded. Tramont told reporters after a lunch Q&A with PCIA Pres. Jay Kitchen that it wasn’t yet clear what form the FCC’s request for information area would take.

As for other policy issues involving tower siting, Tramont said that in the next 6-9 months the FCC expected to: (1) Issue the program agreement on siting of new towers for comment. (2) “Closing the gaps” in some of the radio- frequency exposure rules. Tramont stressed that that wouldn’t mean changes in major policy areas such as the significant exposure rate (SAR) limitations for cellphone handsets but would be “cleanup” issues that had been under discussion with the Food & Drug Administration. (3) Additional outreach to the Fish & Wildlife Service, including such as how field offices addressed tower siting issues. Some in the wireless industry have raised concerns that field offices sometimes have widely varying interpretations of provisions related to tower siting under the Endangered Species Act.

Separately, Tramont told reporters the FCC was nearly ready to release for public comment a nationwide agreement on new wireless and broadcast towers. The release could come within 6 weeks, although the Commission hasn’t yet determined a particular time frame, he said. Federal and state regulators and industry and tribal representatives have been moving toward an agreement to streamline siting decisions under Sec. 106 of the National Historic Preservation Act. Sec. 106 requires federal agencies to consider the effects of an “undertaking,” including tower construction and expansion, on historic properties. The point of the agreement has been to spell out for state historic preservation officers, industry, tribal representatives and others what’s needed for compliance. Kitchen said a 2001 agreement on colocation on existing towers was crafted within a year, but the latest pact on new tower sites has taken longer than expected. “These issues have become more complicated over time,” Tramont acknowledged.

John Clark, an attorney with Perkins Coie, which co- sponsored the seminar, said in a separate session Wed. that although the agreement was nearing release, some issues remained contentious. The agreement, which Clark said would be released for a 60-day comment period, contains exclusions for scenarios in which a Sec. 106 review doesn’t have to be done, including modification of a tower that doesn’t increase its size, replacement or temporary structures that have a life span of less than 2 years. Among the exclusions expected that raise problems for industry is “universal notification of Indian tribes” even if a planned tower site would otherwise qualify for an exclusion. Other potentially problem exclusions include utility, highway and railroad corridors that have “complicated” exceptions for towers near sites that are listed or eligible for the National Register of Historic Places, Clark said.

Among the positive aspects of the agreement is that it’s a nationwide pact that will be effective in every state, rather than earlier versions that would have required state by state approval, Clark said. It also “tailors the Section 106 process much better to the realities of the communications and broadcast industries and FCC procedures,” he said. Clark also praised other elements such as a provision that would give a state historic preservation officer (SHPO) 30 days from the receipt of a submission packet from an applicant to view the materials. If the SHPO didn’t respond within 30 days, the process would be complete, rather than dragging out.

Among issues remaining on the latest draft of the agreement is that it fails to provide “workable” exclusions to Sec. 106 review that industry had sought, Clark said. It also doesn’t clarify a consultation fee issue raised by tribal govts., he said. One contentious issue during the drafting process has been tribal representatives’ concern that they be able to charge fees for their role in Sec. 106 consultations. Clark said the agreement also wouldn’t limit adverse visual effects of sites within the boundaries of a historic property. The issue that has cropped up in the drafting process involves what constitutes an area of potential effect and what is the geographic area in which a tribal or state historic preservation officer examines the potential impact. That provision would stipulate a so-called geographic visual range. For visual effects from a proposed tower, the agreement defines a range of one-half of a mile for towers under 200 ft., 3/4 of a mile for towers 200-400 ft. tall and 1.5 miles for those taller than 400 ft., Clark said. The concern raised by some in the wireless industry is that such measures would stretch the “visual” area of potential effect well beyond the physical boundaries of a historic property and delve into areas that are the historic purview of local zoning boards. Clark said another outstanding concern was that the agreement would provide that completed Sec. 106 reviews wouldn’t be reconsidered a 2nd time.

Tramont said the FCC was “committed to paying additional attention to the government-to-government relationships that have traditionally slowed down, I think unnecessarily, some of the tower siting issues.” The FCC is gearing up for “some additional push” on the govt. interaction front, he said, citing the example of planned outreach to the Fish & Wildlife Service. Any regulatory changes that stem from the FCC’s examination of bird mortality data involving towers would be part of a “multistage” process, he said. The information gathering is part of an effort to identify variables on which the Commission needs more information, including the impact of tower height and lighting, he said. FAA and the Fish & Wildlife Service have raised the migratory bird issue to the FCC in the past. Concerns related to towers also are increasingly being framed in the context of the Migratory Bird Treaty Act, which bars the killing or harming of migratory birds in the absence of a regulatory permit.

Environmental groups, including those in the tower regulatory challenge at the D.C. Circuit, have been calling on the FCC to prevent new towers from being sited until the agency completed an environmental impact statement (EIS) on its tower licensing decisions in the Gulf Coast area. An inquiry or similar request for information by the FCC on avian mortality rates could set the stage for such an EIS on the sidelines of the conference, Clark said. However, if the FCC ultimately decides that scientific information in this area is lacking, it could lend support to a finding that an EIS wasn’t possible at this time, he said.

Perkins Coie attorney Patrick Ryan said one issue carriers have faced is that the impact of towers on migratory birds sometimes is “artificially” viewed by the Fish & Wildlife Service as part of the Sec. 7 consultation process required by the Endangered Species Act. He asked Tramont whether in upcoming discussions with the service the FCC would raise the issue of “carving out” the migratory bird issue as part of separate statutory obligations. “The scope of our consultations with Fish & Wildlife are still under discussion, quite frankly,” Tramont said. One topic expected to be part of those discussions is the differential application of ESA requirements across field offices that the wireless industry has flagged as a problem, he said. “This is also maybe another thing that we need to spend some time with them on,” he said of the statutory obligations involving the impact on migratory birds.

The Commission’s interest in hiring a staff biologist to address communications issues, including those related to the environmental impact of towers, would be in line with its hiring last year of Amos Loveday as cultural resources specialist in the Wireless Bureau, Tramont said. Loveday, a former SHPO, was largely seen as filling in a gap at the Commission of not having a historic preservation officer on staff. A staff biologist could be useful “because enough of these issues come up on individual tower sites that it may be worthwhile to have somebody who is an expert in this area,” he said.