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22 November 2006
[Federal Register: November 22, 2006 (Volume 71, Number 225)]
[Proposed Rules]
[Page 67510-67518]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22no06-27]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 17
[WT Docket No. 03-187; FCC 06-164]
Effect of Communications Towers on Migratory Birds
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seeks comment on whether the Commission should
adopt measures to reduce migratory bird collisions with communications
towers. The document is intended to develop the record in the
Commission's August 2003 Migratory Bird Notice of Inquiry. Depending on
the comments it receives in response to the document, the Commission
may adopt substantive or procedural changes to its rules.
DATES: Comments are due on or before January 22, 2007, reply comments
are due on or before February 20, 2007.
ADDRESSES: You may submit comments, identified by WT Docket No. 03-187,
FCC 06-164, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://
http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments. E-mail: ecfs@fcc.gov., and include the following words in
the body of the message, ``get form.'' A sample form and directions
will be sent in response.
Mail: Federal Communications Commission, 445 12th Street,
SW., Washington, DC 20554.
Hand Delivery/Courier: 236 Massachusetts Avenue, NE.,
Suite 110, Washington, DC 20002.
Accessible Formats: Contact the FCC to request reasonable
accommodations (accessible format documents, sign language
interpreters, CART, etc.) for filing comments either by e-mail:
FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking, WT Docket No. 03-187. All
comments received will be posted without change to http://www.fcc.gov/cgb/ecfs/
, including any personal information provided. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.fcc.gov/cgb/ecfs/.
FOR FURTHER INFORMATION CONTACT: Louis Peraertz, Spectrum and
Competition Policy Division, Wireless Telecommunications Bureau,
Federal Communications Commission, (202) 418-1879.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rulemaking in WT Docket No. 03-187, FCC 06-164,
adopted November 3, 2006, and released November 7, 2006. The complete
text of this document is available for inspection and copying during
normal business hours in the FCC Reference Information Center, Portals
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The
document may also be purchased from the Commission's duplicating
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room
CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-
2893, facsimile (202) 863-2898, or via e-mail at http://www.bcpiweb.com.
It is also available on the Commission's Web site at
http://www.fcc.gov.
Synopsis
1. Introduction. We seek comment on the extent of any effect of
communications towers on migratory birds and whether any such effect
warrants regulations specifically designed to protect migratory birds.
First, we request comment on the legal framework governing the
Commission's obligations in this area, and in particular the threshold
necessary to demonstrate an environmental problem that would authorize
or require that the Commission take action. We then examine particular
steps the Commission might take if there is probative evidence of a
sufficient
[[Page 67511]]
environmental effect to warrant Commission action. With regard to any
newly constructed or modified communications tower that must be
registered and meet lighting specifications under part 17 of the
commission's rules, we tentatively conclude that medium intensity white
strobe lights for nighttime conspicuity is to be considered the
preferred system over red obstruction lighting systems to the maximum
extent possible without compromising aircraft navigation safety. We
seek comment on this tentative conclusion and on issues related to its
implementation. We also seek comment on whether, based on the
scientific or technical evidence before us concerning the impact that
communications towers may have on migratory birds, we should adopt any
additional requirements based on other characteristics of
communications facilities, including the use of guy wires, tower
height, the location of the tower, and the possibility of collocation.
Finally, we request comment on whether to add an additional criterion
for requiring an environmental assessment (EA) to section 1.1307(a) of
the commission's rules.
2. Legal Framework. The National Environmental Policy Act (NEPA)
requires Federal agencies to analyze the impact of their proposed major
Federal actions on the quality of the human environment. 42 U.S.C.
4332(2)(C). The Council on Environmental Quality (CEQ)'s regulations
define the ``human environment'' to include the natural and physical
environment and the relationship of people with that environment. 47
CFR 1508.14. The Endangered Species Act (ESA) requires Federal agencies
to ``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 * * * determined * *
* to be critical. * * *'' 16 U.S.C. 1536(a)(2). Some, but not all,
species of migratory birds are protected under the ESA. In adopting its
environmental rules, the Commission in accordance with its public
interest responsibilities under the Communications Act, previously has
determined that construction of communications towers requires
compliance with environmental responsibilities under NEPA and the ESA.
Moreover, although under our present rules we do not routinely require
environmental processing with respect to migratory birds, the
Commission has considered the impact of individual proposed actions on
migratory birds as part of its overall responsibility under NEPA. In
order to fulfill its obligations under NEPA and the ESA, the Commission
has promulgated rules to address such issues. We tentatively conclude
that the obligation under NEPA to identify and take into account the
environmental effects of actions that we undertake or authorize may
provide a basis for the Commission to make the requisite public
interest determination under the Communications Act to support the
promulgation of regulations specifically for the protection of
migratory birds, provided that there is probative evidence that
communications towers are adversely affecting migratory birds.
3. We also seek comment on what constitutes a significant effect on
the human environment under NEPA in the context of effects on migratory
birds. For example, does the death of some number of individual birds,
without more, constitute a significant environmental impact? Must the
overall population of birds as a whole or of particular species be
negatively impacted before any obligation under NEPA is triggered? And
if so, what size of population, either in migratory birds as a whole or
in a particular species, is sufficient to trigger any legal obligation
by the Commission? Can the Commission rely upon anecdotal evidence of
bird kills at individual towers or must it have broader studies before
taking action specifically for the protection of migratory birds? Must
the Commission consider whether collisions with communications towers
interrupt avian movement, and thereby result in declines in species
beyond the direct losses due to collisions? Also, what is the
relevance, if any, of other causes of avian mortality, such as
buildings, transmission lines, and vehicles? How do the answers to
these questions affect the Commission's authority, or obligation, to
take action in this matter?
4. Apart from any possible obligation under NEPA and ESA, the
Migratory Bird Treaty Act (MBTA) provides that it is unlawful to
``pursue, hunt, take, capture, kill, attempt to take, capture or kill *
* * any migratory bird'' unless permitted by the United States Fish and
Wildlife Service (FWS). 16 U.S.C. 703, 704(a). Courts have rendered
differing decisions regarding the scope of the MBTA's applicability to
Federal agencies. The Commission, however, has indicated that ``it is
not clear'' whether the MBTA applies to the Commission's actions.
Petition by Forest Conservation Council, American Bird Conservancy and
Friends of the Earth for National Environmental Policy Act Compliance,
Memorandum Opinion and Order, 21 FCC Rcd 4462, 4469 n.42 (2006); County
of Leelanau, Michigan, Memorandum Opinion and Order, 9 FCC Rcd 6901,
6903 para. 8 (1994). Nonetheless, some commenters argue that under the
MBTA, a party may be liable for any unintentional, incidental death of
a migratory bird, such as through a collision with a communications
tower. Others contend that the MBTA has a narrower purpose to prohibit
only intentional kills of migratory birds, such as by hunting or
through a program to control migratory bird population. We seek comment
on the nature and scope of the Commission's responsibilities, if any,
under this statute. We also seek comment on whether the MBTA gives the
Commission (or any agency other than the Department of the Interior)
any authority to promulgate regulations to enforce its terms. If the
Commission has statutory authority to issue regulations to enforce the
MBTA, how could the Commission draft such regulations in a manner that
does not impede our responsibility under the Communications Act to
ensure the construction of communications towers that are necessary to
meet the communications service needs of our nation? We seek comment on
these questions.
5. Possible Need for Commission Action. In the Notice of Inquiry
(NOI) in this proceeding, the Commission sought comments supported by
evidence concerning whether communications towers have any significant
impact on migratory birds. In the Matter of Effects of Communications
Towers on Migratory Birds, Notice of Inquiry, WT Docket No. 03-187, 18
FCC Rcd 16938 (2003). In response, the Commission received a myriad of
comments reflecting widely divergent views as to the degree to which
communications towers cause migratory bird mortality. FWS estimates
that the number of migratory birds killed by communications towers
could range from 4 to 50 million per year. In light of these widely
divergent views, we seek further comment supported by evidence
regarding the number of migratory birds killed annually by
communications towers. Where possible, commenters are encouraged to
support their estimates with scientifically reviewed studies.
6. Understanding the scope of any problem involving communications
towers and migratory birds is essential to devising meaningful
solutions consistent with our responsibilities under the Communications
Act and
[[Page 67512]]
other Federal statutes. In particular, we seek comment on whether the
evidence concerning the impact of communications towers on migratory
bird mortality is sufficient to justify and/or authorize Commission
action under the legal standards discussed in response to the questions
posed above. Assuming sufficient evidence is developed regarding this
issue, we may have a basis to take some of the suggested actions
discussed below.
7. Possible Commission Actions. Lighting requirements. We
tentatively conclude that for any newly constructed or modified
communications tower that must meet lighting specifications under part
17 of the Commission's rules, medium intensity white strobe lights for
nighttime conspicuity is to be considered the preferred system over red
obstruction lighting systems to the maximum extent possible without
compromising aircraft navigation safety. We request comment on this
tentative conclusion, and on specific ways in which the Commission
could implement this conclusion in our policies and rules. We also
invite comments on the possible use and benefits of other lighting
systems, such as red strobe or red blinking incandescent lights, and on
other related issues.
8. Several commenting parties have submitted studies indicating
that certain lighting requirements may reduce the likelihood of bird
collisions with tower structures. In their joint comments filed in
response to the NOI, the American Bird Conservancy, Forest Conservation
Council, and Friends of the Earth argue that ``the best science
available indicates that particularly in poor visibility weather
conditions at night, lights on towers (especially solid state red
lights) disrupt a neo-tropical migratory bird's celestial navigation
system and perhaps its magnetic navigation system.'' FWS similarly
asserts that lighting appears to be a ``key attractant for night
migrating songbirds, especially on nights with poor visibility,''
although it adds that further research is needed on the extent to which
lighting contributes to migratory bird collisions with communications
towers. Subsequently, interim reports of studies being conducted at
public safety towers in Michigan were entered into the record. Those
interim reports indicate that comparable numbers of bird carcasses were
found when only red strobe or only white strobe lights were used,
irrespective of the towers' heights and the presence of guy wires. The
interim reports also indicate more bird carcasses were found at towers
using red steady lights with red strobe lights than at towers using
only red strobe, white strobe, or red blinking incandescent lights.
9. Section 303(q) of the Communications Act of 1934, as amended,
vests in the Commission the authority to require painting and/or
lighting of antenna structures which may constitute a hazard to air
navigation. 47 U.S.C. 303(q). Part 17 of the Commission's rules sets
forth procedures for implementing this authority. 47 CFR Part 17.
Specifically, if a proposed construction or modification of a
communications tower would be more than 60.96 meters (200 feet) in
height above ground level (AGL), or meet certain other conditions
detailed in section 17.7 of our rules (such as proximity to an
airport), our rules (as well as the Federal Aviation Administration's
(FAA) rules) require the entity proposing such construction or
modification to notify the FAA. 47 CFR 17.7; 14 CFR 77.13. If the FAA
determines, in accordance with its applicable Advisory Circular(s),
that the construction or alteration is one for which lighting or
marking is necessary for aircraft navigation safety, the FAA sends an
acknowledgement to the antenna structure owner that contains a
statement to that effect and information on how the structure should be
marked and lighted. 14 CFR 77.19. This acknowledgment is the FAA's
determination of ``no hazard,'' meaning that the FAA has determined
that the structure will pose no hazard to aircraft so long as it is
marked and/or lighted in accordance with the FAA's specifications. The
antenna structure owner must register the structure with the Commission
prior to construction by submitting FCC Form 854 together with the
FAA's ``no hazard'' determination. 47 CFR 17.4(b). Unless the
Commission specifies otherwise, the FAA's specifications for marking
and/or lighting on the antenna structure are then made part of the
owner's FCC antenna structure registration, and the owner is required
to maintain the marking and/or lighting in accordance with those
specifications. 47 CFR 17.23. The FAA's current standards pertaining to
tower lighting specifications to promote aviation safety are set forth
in Advisory Circular 70/7460-1K (``Obstruction Marking and Lighting'').
The FAA's recommendations can vary depending on characteristics of the
tower, terrain, and location, and may permit antenna structure owners
to choose among different types of lighting systems, including red
steady (red solid state), red strobe interspersed with red steady, or
white lights.
10. In April 2004, in response to a request by the American Bird
Conservancy to minimize mortality to migratory birds, the FAA issued an
internal memorandum providing guidance on the FAA's issuance of
lighting recommendations set forth in Advisory Circular 70/7460-1K.
Specifically, as interim guidance, the FAA's Program Director for Air
Traffic Airspace Management directs Regional Air Traffic Division
Managers that use of medium intensity white strobe lights for nighttime
conspicuity is to be considered the preferred system over red
obstruction lighting systems when feasible and to the maximum extent
possible in cases in which aviation safety would not be compromised.
The memorandum references the NOI and notes that the Commission may
later provide some guidance on what, if any, then existing standards
regarding the effects of communications towers on migratory birds were
in need of review and study. The memorandum also states that, from a
safety perspective, the standards and guidance set forth in the
existing Advisory Circular 70/7460-1 continue to be necessary to
appropriately light obstacles and to avoid creating hazardous
conditions for pilots. Finally, in accordance with that Advisory
Circular, the memorandum points out that the use of white lights for
nighttime conspicuity within three nautical miles of an airport or in
populated urban areas is discouraged as a lighting recommendation. In
their joint comments on a 2004 report prepared by the Commission's
environmental consultant, Avatar Environmental, LLC (Avatar Report),
the American Bird Conservancy, Forest Conservation Council, Humane
Society, and Defenders of Wildlife urge the Commission to adopt the
FAA's preference for white strobe lighting as set forth in the April
2004 memorandum.
11. We tentatively conclude that under the Commission's part 17
rules, consistent with the FAA's memorandum, the use of medium
intensity white strobe lights for nighttime conspicuity is to be
considered the preferred lighting system over red obstruction lighting
systems to the maximum extent possible without compromising aircraft
navigation safety. We base this tentative conclusion on the FAA's
recommendation of such lighting where it will not compromise aircraft
navigation safety, the evidence suggesting that white strobe lights may
create less of a hazard to migratory birds, and the absence of record
evidence that use of white strobe
[[Page 67513]]
lighting would have an adverse impact on communications facilities
deployment. We seek comment on this tentative conclusion, including
whether its implementation would result in reducing the incidence of
migratory bird mortality associated with communications towers as well
as any burdens such a requirement would impose on tower owners, or on
the public, and whether alternatives may be available or preferable. We
also seek comment on our statutory authority to implement this
tentative conclusion.
12. In the event we adopt our tentative conclusion, we seek comment
specifically on how best to implement this policy. For instance, should
we revise section 17.23 of the Commission's rules (see 47 CFR 17.23) to
establish that, unless otherwise specified by the Commission, each new
or altered registered antenna structure must use medium intensity white
strobe lights for nighttime conspicuity if the FAA determines that the
use of such lights would not impair the safety of air navigation and
recommends their use? We note that section 17.23 of our rules currently
references two FAA Advisory Circulars (AC 70/7460-1J, as revised in
1996, and AC 150/5345-43E, as revised in 1995). Given that one of these
Advisory Circulars (AC 70/7460-1J) subsequently has been updated with a
newer version (AC 70/7460-1K), we seek comment on how we should revise
section 17.23. We further invite comment on whether any rule revisions
we may adopt should be written in such a manner as to accommodate later
changes in the FAA Advisory Circulars without a future change in our
rules. We also ask for comment on whether, to the extent we determine
to adopt additional lighting guidance in our rules, revisions to other
provisions of part 17 or elsewhere in our rules are necessary. We
encourage commenters to suggest specific language and discuss its
benefits and drawbacks.
13. In addition, we invite commenters to consider the possible use
and benefits of lighting systems other than red steady and medium
intensity white strobe. We note that the FAA Advisory Circular
pertaining to tower lighting does not currently permit the use of red
strobe or red blinking incandescent lights without the use of red
steady lights. FAA AC 70/7460-1K at 13-14. The American Bird
Conservancy, however, has recently argued that recent and past
research, including the preliminary results from the Michigan study,
suggests that ``the critical element in lighting towers and other
structures is to use strobe lighting for night time conspicuity
exclusively, and not to use red steady burning lights.'' Thus, noting
that the FAA does not recommend the use of white strobe lights under
some circumstances, the American Bird Conservancy now asserts that
either white or red strobe lighting is desirable. We seek comment on
the significance of the existing research, and whether, given the FAA's
existing Advisory Circular, we should modify our proposed rule to
account for the possible use of red strobe lights or red blinking
lights without red steady lights. If the final results of the Michigan
study are consistent with the preliminary results and are borne out by
a final report, would the results provide sufficient scientific basis
on which to conclude that use of red strobe or red blinking lights
might reduce bird mortality levels to the same or similar degree as
white strobe lights? We also seek comment on whether there are other
studies that have been designed to assess the different effects on
avian mortality of these different lighting systems and whether there
is a need for any further studies. If other studies exist, what are
their results? Do they support the adoption of our tentative conclusion
regarding the use of white strobe lights? Or, would the studies support
giving tower registrants the option of using red strobe or red blinking
incandescent lights as an alternative to white strobe lights, to the
extent consistent with aircraft navigation safety and endorsed by the
FAA?
14. We also seek comment regarding the economic, environmental, and
any other costs of a requirement to use white strobe lights when
compared with other lighting alternatives. In particular, what would be
the specific economic impact on licensees and tower owners and
constructors, including small businesses, of adopting such a
requirement? What are the comparative costs and longevity of white
strobe lighting systems versus the other lighting systems identified in
this section? What other factors are relevant to assess the impact that
requiring medium intensity white strobe lighting would have on
licensees and towers owners and constructors? To the extent white
strobe lighting would increase the cost of constructing or maintaining
towers, we further seek comment on the effect this would have on
communications service deployment, homeland security, and public
safety.
15. We also note that section 1.1307(a)(8) provides that
construction of antenna towers and/or supporting structures that are to
be equipped with high intensity white lights, which are to be located
in residential neighborhoods, is an action that may significantly
affect the environment and thus requires the preparation of an EA by
the applicant. 47 CFR 1.1307(a)(8). Further, the April 2004 FAA
memorandum notes that in accordance with the Advisory Circular, the use
of white lights for nighttime conspicuity within three nautical miles
of an airport or in populated urban areas is discouraged as a lighting
recommendation. We invite comment supported by evidence on whether
medium intensity white strobe lighting would impose an environmental
impact on neighboring residents or have other adverse consequences, and
if so, how we should weigh these competing public interest
considerations in determining whether to adopt any guidance relating to
tower lighting.
16. Finally, we seek comment on what, if any, action we should take
regarding the lighting of existing towers. We invite comment on both
the benefits and costs of any such action. We note that this may also
require modifying licenses pursuant to section 316 of the
Communications Act (47 U.S.C. 316), as well as the approval of the FAA
and the re-issuance of any no-hazard determinations. Considering the
costs and benefits and the need for the FAA to approve changes, if we
were to take any action regarding existing towers, how should such a
requirement be implemented? Should we require medium intensity white
strobe lights when the red obstruction lights burn out and need to be
replaced? Would such an approach be consistent with the FAA's
applicable Advisory Circular? Should we seek a transition of all
existing towers to medium intensity white strobe lights, to the extent
permitted by the FAA, within a specific time frame, such as five years
from the date of adoption of the tentative conclusion as a rule? We
seek comment on these questions, as well as upon other alternatives to
our proposed rule.
17. Use of Guy Wires. We next seek comment on whether we should
adopt any requirements governing the use of guy wires because of the
potential impact posed to migratory birds. In its September 2004
report, Avatar concluded that, based on the studies it analyzed, it
appears that ``[t]owers with guy wires are at higher risk [to birds]
than self-supporting towers.'' Avatar also stated, however, that at the
time of its report there were ``[n]o specific studies comparing avian
collisions between guyed and self-supporting structures.'' In their
joint comments, American Bird Conservancy, Forest Conservation Council,
the Humane Society, and Friends of the Earth assert that birds are
killed not only by colliding with towers but also by flying
[[Page 67514]]
into guy wires that support the towers. The interim reports on the
Michigan towers, presented subsequent to the Avatar report, suggest
that towers with guy wires had more avian mortality than towers of
similar height with no guy wires.
18. In light of this record, we request comment on several
questions relevant to whether these concerns are significant enough to
justify the Commission's adoption of rules relating to the use of guy
wires. In addressing these questions, commenters should also comment on
whether, to the extent we adopt our tentative conclusion regarding
tower lighting, there might still be a need to adopt requirements
regarding the use of guy wires.
19. First, we seek comment on whether the scientific record
supports limiting the use of guy wires. Are there additional scientific
studies that illuminate the relationship between avian mortality and
the use of guy wires? If so, how conclusive are those studies, and what
do they show? To the extent it can be shown that guy wires do increase
the number of migratory bird collisions with communications towers, is
the increase in the number of collisions also related to the type of
lighting used, such that the number of collisions would be mitigated if
we were to adopt our tentative conclusion that medium intensity white
strobe lights for nighttime conspicuity is to be considered the
preferred lighting system over red obstruction lighting systems?
20. We also request information on engineering and economic factors
relevant to the use of guy wires. Is there a height threshold above
which guy wires are generally necessary, and if so, what is that
height? Does the calculus vary depending on soil conditions or other
factors? To what extent are towers utilizing guy wires necessary to the
provision of various licensed services, and what economic factors may
affect the decision whether to use guy wires?
21. We also request comment on any additional consequences that may
result from regulation relating to guy wires. For instance, if we were
to limit the use of guy wires, what would be the impact on tower
construction and the deployment of communications services generally?
Would tower constructors need to erect towers of the same height but
with a larger physical footprint, a greater number of shorter towers to
provide equivalent service, or some combination thereof? To what extent
would either non-guyed tower designs or greater proliferation of towers
result in creating additional adverse impact on environmental matters
that do not pertain to migratory birds, such as historic properties,
wetlands, or endangered species?
22. We ask commenters to address how we might balance these various
scientific, engineering, economic, and other factors, in determining
what, if any, standards should govern the use of guy wires. We
encourage commenters to suggest specific tests for when the use of guy
wires may be suspect, and to justify those tests based on objective
evidence. Commenters should also address how any standards should be
implemented. For example, if we adopt standards regarding the use of
guy wires, should we mandate that all towers, or all towers meeting
certain criteria, meet those standards without exception?
Alternatively, should we permit towers with guy wires upon filing of an
EA and issuance of a Finding of No Significant Impact, or upon
certification that no reasonable alternative (e.g., use of non-guyed
towers or collocation) was available? We seek comment regarding both
the benefits and the costs of these and alternative regimes.
23. We specifically seek comment on whether to adopt requirements
relating to marking of guy wires. Avatar reported that one of the
``most effective ways to reduce avian mortality is to mark [wires] to
make them more visible,'' and that the effectiveness of methods that
mark overhead electric power lines and target certain species of birds
is well documented. Therefore, Avatar concluded that wire marking ``may
increase guy wire visibility thereby reducing the collision risk for
some birds,'' and discussed several currently available devices such as
bird flight diverters. Avatar also explained, however, that ``from an
engineering perspective,'' wire marking is not ``always a good
solution'' because devices ``that physically enlarge the wire commonly
act as wind-catching objects and may increase the risk of wire breaks
due to line tension, vibration, and stress loads.''
24. We seek comment on the effectiveness of wire markings in
mitigating migratory bird collisions with communications towers. In
particular, we invite information about past or ongoing scientific
studies into the effectiveness of wire markings on communications
towers. To the extent studies have been conducted on other types of
structures, how relevant are they to communications towers? Commenters
who advocate a marking requirement should address which types of
marking devices are most effective, and how they should be used. We
also invite comment regarding the engineering feasibility and financial
cost of marking requirements, for both existing and new towers. If the
Commission were to adopt a wire marking requirement, how could we do so
in a manner that imposes minimal burdens on license applicants and
communications tower owners and constructors?
25. Tower Height. We seek comment on whether to adopt any
requirements relating to the height of communications towers in order
to minimize the impact of such towers on migratory birds. Avatar found
that ``all other things being equal, taller towers with lights tend to
represent more of a hazard to birds than shorter, unlit, towers.''
FWS's voluntary guidelines recommend that communications towers be
shorter than 200 feet if possible to avoid, in most instances, the
requirement that the towers have aviation safety lights. Conservation
groups argue that the Commission should restrict the heights of
communications towers because doing so would minimize the presence of
two features that are most harmful to birds, lights and guy wires.
26. We request comment regarding the relevant costs and benefits of
adopting any requirements relating to tower height. For example, would
limitations on tower height hinder the deployment of certain types of
services, including public safety communications? Would such
requirements adversely affect the availability of service in certain
geographic locations, such as rural areas? Would requirements governing
tower height lead to a greater number of towers, and if so, to what
extent would this impact historic properties, wetlands, endangered
species, or other environmental values? We welcome specific information
regarding any such disadvantages of rules relating to tower height, as
well as the benefits. We also ask commenters to address whether, to the
extent we adopt our tentative conclusion regarding tower lighting,
there would be a need to adopt any requirements relating to tower
height.
27. We also seek comment on how any requirements relating to tower
height should be implemented. In particular, we ask commenters that
advocate height regulations to consider what tower height should
trigger any rules. Should we regulate towers over 200 feet in order to
minimize the use of lights? Is there some other threshold above which
towers are more likely to have a significant effect on migratory birds?
Finally, we seek comment on what procedural requirements we should
apply to towers that exceed any specified height threshold, such as a
certification of need or requirement to file an EA.
[[Page 67515]]
28. Tower Location. We seek comment on whether towers located in
certain areas might cause a sufficient environmental impact on
migratory birds such that, when considered with other relevant factors,
some Commission action might be justified. In the NOI, the Commission
requested scientific research and other data ``concerning the impact on
migratory birds of communications towers located in or near specific
habitats, such as wetlands.'' The NOI asked whether ``towers on ridges,
mountains, or other high ground have a differential impact on migratory
bird populations.'' The NOI also sought comment on the impact on
migratory birds of towers located in areas with a high incidence of
fog, low clouds, or similar obscuration, or in proximity to coastlines
and major bird corridors. In response to the NOI, some commenters
presented arguments and rationales why communications towers should not
be sited in certain locations such as migratory bird habitats or in
migration corridors on ridgelines. Although Avatar noted some degree of
confidence within the scientific community that the ``greatest bird
mortality tends to occur on nights with low visibility conditions,
especially fog, low cloud ceiling, or other overcast conditions,'' it
reached no similar findings with regard to the effect that locating
towers on ridges, or in wetlands, might have on avian mortality. In
addition, Land Protection Partners discussed a ``multi-modal research
study in New Hampshire'' that it claimed ``revealed the effect of
topography of the Appalachian Mountains on migratory birds, including
neo-tropical migrants.'' We seek information on whether there are
additional scientific studies that have examined the effect that
locating communications towers in different areas, with different
weather conditions, might have on avian mortality and, if so, what if
any requirements we should adopt on the basis of such studies.
29. Collocation. We request comment on whether the Commission
should adopt additional requirements to promote collocation. We note
that FWS, American Bird Conservancy, and several other commenters argue
that the Commission should strongly encourage license applicants to
collocate their antennas on existing structures to the extent possible.
We seek comment and information relevant to whether we should adopt
policies that would promote more extensive use of collocation. If we do
adopt regulations to promote collocation, we seek comment on what form
those regulations should take. Possibilities could include, for
example, a requirement to certify that collocation opportunities are
unavailable and/or describe collocation alternatives that the licensee
explored. We ask commenters to discuss the benefits and costs of these
and alternative forms of regulation, including burdens on small
businesses and possible impacts on the delivery of public safety and
homeland security services. We also ask commenters to assess the need
for such regulation to the extent we adopt our tentative conclusion
that the use of medium intensity white strobe lights for nighttime
conspicuity is to be considered the preferred lighting system over red
obstruction lighting systems.
30. Section 1.1307. We seek comment as to whether to amend section
1.1307(a) of the commission's rules to routinely require environmental
processing with respect to migratory birds. Section 1.1307(a) currently
identifies eight different criteria that, if present, establish that a
proposed facilities construction ``may significantly affect the
environment'' and therefore requires preparation of an EA. 47 CFR
1.1307(a)(1) through (8). The American Bird Conservancy, Forest
Conservation Council, Friends of the Earth, and the Humane Society
argue that, considering the evidence of mass bird mortalities at
communications towers, the Commission should also expressly require an
EA for proposed facilities that would have potential effects on
migratory birds. We note that the Commission's rules already provide
for consideration of factors not identified in section 1.1307(a),
including those that pertain to a facility's effect on migratory birds,
to the extent the Commission independently determines that there may be
a significant environmental effect in a particular case. 47 CFR
1.1307(c), (d).
31. We seek comment regarding the appropriate methodology for
making such a determination, as well as the level of probative evidence
necessary to support such a determination. We note, for example, that
Avatar found in its 2004 report that there were no studies to date that
``demonstrate[d] an unambiguous relationship between avian collisions
with communication towers and population decline of migratory bird
species.'' Is the current state of scientific evidence insufficient to
require routine assessment of such an effect? Or, to the contrary, is
the evidence of specific incidents of bird collisions with towers, such
as extrapolations that estimate the total number of these collisions,
sufficient to support a required assessment for some or all towers? Are
there other factors the Commission should consider in determining the
proper treatment of the effect on migratory birds under the
Commission's environmental rules?
32. We also seek comment, if we adopt an EA requirement for effects
on migratory birds, on the types of towers to which such a requirement
should apply. One possible approach might be to require an EA
addressing this factor for all new tower construction. We seek comment
as to whether the scientific evidence would support a general
requirement of this sort, as well as the burdens it would impose on
applicants. We also ask commenters to consider whether such a broadly
applicable procedural requirement would reduce the incentive for
companies to choose sites and designs that may be less likely to affect
migratory birds. Another possibility could be to require an EA if a
proposed construction ``might affect migratory birds.'' Commenters
discussing this approach should address how such a broadly worded
requirement might be administered, and how it could be enforced.
33. An alternative to these general approaches may be to require an
EA only for proposed towers that exhibit certain characteristics that
render them more likely to harm migratory birds. For example, as
suggested in the discussion above, we might require an EA only for
towers that use certain lighting systems, or that require guy wires, or
that exceed a specified height. We seek comment as to whether the
evidence supports such criteria, and if so where the thresholds should
be set. Are there any additional factors that should be considered in
triggering an EA requirement, such as the area of the country in which
the tower would be located, the local topography, or prevailing weather
conditions? We encourage commenters to set forth specific proposals and
to address all relevant considerations, including the scientific
support for particular criteria; the effect of any such EA requirement
on the deployment of wireless services, on homeland security, and on
public safety; and the Commission's ability to administer any
particular proposal if adopted. Commenters should also address both the
effectiveness and the burdens of various approaches, including the
impacts on small businesses.
34. Other Possible Actions. Finally, we seek comment on whether
there are other possible substantive or procedural measures the
Commission could take to minimize migratory bird collisions that are
not discussed above. For any such possible measure, we request any
available information and scientific
[[Page 67516]]
research to support the effectiveness of such a measure at minimizing
migratory bird collisions. We also request comment on the best way to
implement such a measure so as to eliminate the imposition of any
unnecessary costs on affected entities, including small businesses.
Procedural Matters
Ex Parte--Permit But Disclose Proceeding
35. This is a permit-but-disclose notice and comment rulemaking
proceeding. See Generally, 47 CFR 1.1202, 1.1203, 1.1206. Ex parte
presentations are permitted, except during the Sunshine Agenda period,
provided they are disclosed pursuant to the Commission's Rules.
Initial Regulatory Flexibility Act Analysis
36. As required by the Regulatory Flexibility Act (see 5 U.S.C.
603), the Commission has prepared an Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on small
entities of the policies and rules proposed in this document. The IRFA
is set forth in section III below. Written public comments are
requested on the IRFA. These comments must be filed in accordance with
the same filing deadlines as comments filed in response to the NPRM as
set forth below in subsection D, and have a separate and distinct
heading designating them as responses to the IRFA.
Initial Paperwork Reduction Act of 1995 Analysis
37. This document does not contain proposed information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, therefore, it does not contain any new
or modified ``information collection burden for small business concerns
with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198. See 44 U.S.C.
3506(c)(4).
Comment Period and Procedures
38. Pursuant to sections 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using: (1) The Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
39. Electronic Filers. Comments may be filed electronically using
the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should
follow the instructions provided on the Web site for submitting
comments.
40. ECFS filers. If multiple docket or rulemaking numbers appear in
the caption of this proceeding, filers must transmit one electronic
copy of the comments for each docket or rulemaking number referenced in
the caption. In completing the transmittal screen, filers should
include their full name, U.S. Postal Service mailing address, and the
applicable docket or rulemaking number. Parties may also submit an
electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to ecfs@fcc.gov, and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
41. Paper Filers. Parties who choose to file by paper must file an
original and four copies of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although we continue to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
42. The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building. Commercial overnight mail
(other than U.S. Postal Service Express Mail and Priority Mail) must be
sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
Service first-class, Express, and Priority mail should be addressed to
445 12th Street, SW., Washington DC 20554.
43. Availability of documents. The public may view the documents
filed in this proceeding during regular business hours in the FCC
Reference Information Center, Federal Communications Commission, 445
12th Street, SW., Room CY-A257, Washington, DC 20554, and on the
Commission's Internet Home Page: http://www.fcc.gov. Copies of comments
and reply comments are also available through the Commission's
duplicating contractor: Best Copy and Printing, Inc. (BCPI), Portals
II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone
1-800-378-3160, or via e-mail at the following e-mail address: http://
http://www.bcpiweb.com.
44. People with Disabilities. 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 202-418-0530 (voice), 202-
418-0432 (tty).
Initial Regulatory Flexibility Analysis
Need for, and Objectives of, the Proposed Rules
45. The National Environmental Policy Act of 1969 (NEPA) requires
Federal agencies to establish procedures that will enable them to
analyze any potential environmental impact of actions that they
undertake or authorize. See 5 U.S.C. 601(6). The Endangered Species Act
(ESA) prohibits the taking of any endangered or threatened species by
any person unless authorized by the U.S. Fish & Wildlife Service (FWS).
16 U.S.C. 1538(a)(1)(B). The Commission has implemented regulations to
comply with NEPA and ESA in part 1, subpart I of its rules. 47 CFR
1.1301 et seq. In response to the Commission's August 2003 Notice of
Inquiry in this proceeding (In the Matter of Effects of Communications
Towers on Migratory Birds, Notice of Inquiry, WT Docket No. 03-187, 18
FCC Rcd 16938 (2003)), FWS and several other parties filed comments in
which they argued that the Migratory Bird Treaty Act (MBTA) (16 U.S.C.
701) would prohibit the unintentional and incidental take of even one
migratory bird that died by colliding with a communications tower.
These commenters also asserted that there have been several reports of
mass migratory bird mortalities at communications towers. FWS estimates
that the number of migratory birds killed each year due to collisions
with communications towers could range from 4 to 50 million.
46. In the NPRM, we seek comment on whether to amend the
Commission's rules to reduce the impact of communications towers on
migratory birds in accordance with these Federal statutes and in light
of the concerns expressed in the NOI record. We
[[Page 67517]]
tentatively conclude that any newly constructed or modified
communications tower, which under part 17 of the Commission's rules
must be registered with the Commission and comply with lighting
specifications, should be required to use medium intensity white strobe
lights rather than red obstruction lighting for nighttime conspicuity
so long as the Federal Aviation Administration (FAA) determines that
the use of such lights on that particular communications tower does not
impair aviation safety. We also seek comment on whether we should adopt
regulations with regard to: (1) The use of guy wires; (2) height of
communications towers; (3) the location of towers; and (4) collocation
of antennas on existing structures. Finally, we seek comment on whether
we should amend commission rule 1.1307 (47 CFR 1.307) to include
potential impact on migratory birds as a criterion that requires the
filing of an Environmental Assessment (EA).
Legal Basis
47. We tentatively conclude that we have authority under sections
1, 4(i), 303(q) and 303(r) of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 301, 303(q), 303(r), and under the
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., to
adopt the proposals set forth in the NPRM.
Description and Estimate of the Number of Small Entities to Which the
Rules Will Apply
48. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted. The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' 5 U.S.C. 601(6). In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act. 5 U.S.C. 601(3). A small business concern
is one which: (1) Is independently owned and operated; (2) is not
dominant in its field of operation; and (3) satisfies any additional
criteria established by the Small Business Administration (SBA). Small
Business Act, 5 U.S.C. 632 (1996). A small organization is generally
``any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.'' 5 U.S.C. 601(4).
49. Nationwide, there are a total of approximately 22.4 million
small businesses, according to SBA data. See SBA, Programs and
Services, SBA Pamphlet No. CO-0028, at page 40 (July 2002). A ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.'' 5
U.S.C. 601(4). Nationwide, as of 2002, there were approximately 1.6
million small organizations. Independent Sector, The New Nonprofit
Almanac & Desk Reference (2002). The term ``small governmental
jurisdiction'' is defined generally as ``governments of cities, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' 5 U.S.C. 601(5). Census
Bureau data for 2002 indicate that there were 87,525 local governmental
jurisdictions in the United States. U.S. Census Bureau, Statistical
Abstract of the United States: 2006, section 8, page 272, table 415. We
estimate that, of this total, 84,377 entities were ``small governmental
jurisdictions.'' Thus, we estimate that most governmental jurisdictions
are small. The changes and additions to the commission's rules adopted
in the NPRM are of general applicability to all FCC licensed entities
of any size that use a communications tower. Accordingly, this NPRM
provides a general analysis of the impact of the proposals on small
businesses rather than a service by service analysis.
Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements
50. The NPRM solicits comment on one tentative conclusion and on
five other potential areas of modification to the Commission's
regulations regarding the siting and construction of communications
towers so as to reduce the incidence of migratory bird collisions. The
NPRM seeks comment on its tentative conclusion that, under the
commission's part 17 rules, the use of medium intensity white strobe
lights for nighttime conspicuity is to be considered the preferred
lighting system over red obstruction lighting systems to the maximum
extent possible without compromising aircraft navigation safety. The
NPRM also requests comment on whether we should impose regulations
relating to the use of guy wires on communications towers, the height
of communications towers, the location of communications towers, and
collocation of new antennas on existing structures. Finally, the NPRM
seeks comment as to whether the Commission should amend section
1.1307(a) of our rules to expand the circumstances under which an EA is
required. Depending on the rules that are adopted, it is possible that
compliance may involve new recordkeeping or reporting requirements.
Steps Taken To Minimize Significant Economic Impact on Small Entities
and Significant Alternatives Considered
51. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities. 5 U.S.C. 603(c).
52. The NPRM seeks comment on its tentative conclusion that, under
the Commission's part 17 rules, the use of medium intensity white
strobe lights for nighttime conspicuity is to be considered the
preferred lighting system over red obstruction lighting systems to the
maximum extent possible without compromising aircraft navigation
safety. We seek comment on the effect that such a requirement, or
alternative rules, might have on small entities. The NPRM also requests
comment on whether it should impose regulations relating to the use of
guy wires on communications towers, the height of communications
towers, the location of communications towers, or collocation of new
antennas on existing structures. For each of these areas, we seek
comment about the burdens that regulation would impose on small
entities and how the Commission could impose such regulations while
minimizing the burdens on small entities. Are there any alternatives
the Commission could implement that could achieve the Commission's
goals while at the same time minimizing the burdens on small entities?
We will continue to examine alternatives in the future with the
objectives of eliminating unnecessary regulations and minimizing any
significant economic impact on small entities.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
53. None.
Ordering Clauses
54. Accordingly, it is ordered that, pursuant to sections 1, 4(i),
303(q), 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i),
[[Page 67518]]
303(q), 303(r), and the National Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq., this Notice of Proposed Rulemaking is hereby
adopted.
55. It is further ordered that pursuant to applicable procedures
set forth in sections 1.415 and 1.419 of the Commission's Rules, 47 CFR
1.415, 1.419, interested parties may file comments on or before January
22, 2007 and reply comments on or before February 20, 2007.
56. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E6-19742 Filed 11-21-06; 8:45 am]
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