Amer. Bird Conservancy v. Federal Communications Comm., 516 F.3d 1027 (D.C. Cir. 2008).

Stephanie Showalter, J.D./M.S.E.L.

It was a dark and snowy night. A dense fog settled around three small communication towers decreasing visibility and blurring the safety lights. A large flock of Lapland longspurs, small, sparrow-like, migratory songbirds, took flight. By morning, 10,000 longspurs lay dead beneath the towers and in the surrounding fields.

A scene from a Hollywood horror movie? Unfortunately, no. This mass-kill of migratory songbirds happened on January 22, 1998 as a result of a 420-foot guyed communication tower in southwestern Kansas.1 After taking flight during a heavy snowstorm, the birds became disoriented and for some reason (most likely having to do with the tower lighting) began circling the communication tower. The birds died due to collisions with the towers, guy wires, or each other and pure exhaustion.

This phenomenon is known as “tower kill.” Ornithologists estimate that in the 1970s, 1.2 million migratory birds were killed annually by collisions with communication towers.2 Today, the U.S. Fish and Wildlife Service (FWS) estimates that the number of migratory birds killed by communications towers (cell, television, wireless data, emergency broadcast) could range from 4 to 50 million per year.3 As the number of communication towers rapidly increased as the demand for cell phones and wireless access soared, ornithologists and birders began sounding the alarm about the potential impact of towers on migratory bird populations.

Not much is known about the causes of tower kill. Researchers do know that lighting plays a key role.4 Federal Aviation Administration regulations require communication towers over 199-feet, near airports, or along major highways to be lit so pilots can see them at night. Many towers are lit with steady red lights. Researchers also know that the higher the towers, the greater the risk of bird kills.5 Seventy-five percent of neotropical songbirds migrate at an altitude between 500 and 6,000 feet.6 The number of guy wires also increases with tower height. This relationship between height and mortality is particular alarming considering the federally mandated conversion to digital television may have lead television stations to construct as many as 1,000 new, 1,000-foot “megatowers.”7

Procedural History
Communication towers are regulated by the Federal Communications Commission (FCC).8 In 2002, the American Bird Conservancy (ABC) and other environmental groups, concerned about the effect of tower kill on migratory birds in the Gulf Coast region, formally requested that the FCC analyze the impacts by, among other things, preparing an environmental impact statement and initiating consultation with the FWS as required by the Endangered Species Act (ESA).9 While ABC’s petition was pending, the FCC issued a Notice of Inquiry on August 20, 2003 to gather information on the impact of communication towers on migratory birds. The more than 250 comments submitted to FCC revealed the divergent views of the environmental community and the communication industry on the impact of towers.10 In April 2005, the FCC dismissed the ABC’s petition, but stated that it would address the issue on a nationwide basis. ABC sought review of this order with the U.S. Court of Appeals for the District of Columbia Circuit.11

In November 2006, the FCC issued a notice of proposed rulemaking (NPRM) seeking “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.”12 Although the comment period for this rulemaking closed in May 2007, the FCC has not taken final action. On February 19, 2008, the D.C. Circuit Court of Appeals vacated the FCC order denying ABC’s petition for review.

NEPA
The National Environmental Policy Act (NEPA) requires that federal agencies consider the environmental impacts of their decisions. For “major Federal actions significantly affecting the quality of the human environment,” agencies must prepare environmental impact statements (EIS) in which the adverse affects and potential alternatives are analyzed.13 Despite the evidence that communication towers kill millions of birds each year, the FCC has undertaken no comprehensive environmental review of its licensing program.

Individual federal licensing decisions are subject to NEPA as well, but the FCC has excluded communication towers from environmental review because towers “are deemed individually and cumulatively to have no significant effect on the quality of the human environment.”14 Interested parties, however, are permitted to file a petition alleging that a particular action, otherwise categorically excluded, will have a significant environment effect.15 If after considering the environmental concerns raised in the petition, the FCC determines the action may have a significant impact, the applicant for a tower license is required to prepare an environmental assessment (EA).16

The D.C. Circuit held that the FCC’s order denying ABC’s petition violated the agency’s own NEPA regulations. According to the court, “there is no real dispute that towers ‘may’ have a significant environmental impact.” The A7 1.1307(c) threshold, therefore, has been met and the FCC must, at a minimum, prepare an EA. The preparation of an EA does not necessary mean the FCC must prepare a programmatic EIS. EAs are an interim step in the environmental review process. If the FCC determines through its EA that there will be no significant impact on the environment, the agency may issue a Finding of No Significant Impact (FONSI) and avoid an EIS. On the other hand, if the EA indicates that significant impact would result, the FCC must prepared an EIS.17

ESA
ABC also requested that the FCC consult with the U.S. Fish and Wildlife Service (FWS) regarding the cumulative effect of communication towers on protected species. Section 7 of the Endangered Species Act requires federal agencies to ensure that any action they authorize, fund, or carry out is not likely to “jeopardize the continued existence of any endangered or threatened species.”18 If an action is likely to jeopardize a listed species, the federal agency must consult with the FWS.

The Commission refused to consult with the FWS citing a lack of evidence of synergies among towers that “would cause them cumulatively to have significant environmental impacts that they do not have individually.”19 The court found this explanation inadequate because the FCC did not describe what kind of showing could demonstrate sufficient environmental effects to justify consultation.

Conclusion
The D.C. Circuit vacated the FCC’s order and remanded the case to the FCC to comply with NEPA and ESA. The D.C. Circuit anticipated that the results of the pending FCC NPRM are likely to inform the FCC’s decision on remand, but stressed that the nationwide proceeding did not incorporate or supplant the ABC’s petition.20 The FCC must still resolve the NEPA and ESA issues raised in ABC’s petition.

Endnotes
1.   Joanne M. Lopez, The Impact of Communication Towers on Neotropical Songbird Populations, Endangered Species Update 18(2): 52 (2001).
2.   Id. at 50.
3.   Federal Communications Commission, Pro­ posed Rule, Effect of Communication Towers on Migratory Birds, 71 Fed. Reg. 67510, 67511 (Nov. 22, 2006).
4.   Williams R. Evans, et al., Response of night-migrating songbirds in cloud to colored and flashing light, North American Birds, 60: 476-488 (2007).
5.   Manville, A. M. II, The ABCs of avoiding bird collisions at communication towers: the next steps, in Proceedings of the Avian Interactions Work­shop (2000) available at
http://www.fwsgov/migratorybirds/issues/towers/abcs.html.
6.   Lopez, supra note 1, at 50.
7.   Curbing Tower Kill, Science 291: 2081 (March 2001).
8.   The transmission of communications or signals by radio requires a license from the FCC. 47 U.S.C. A7 301.
9.   Amer. Bird Conservancy v. FCC, 516 F.3d 1027, 1029 (D.C. Cir. 2008).
10.  Id. at 1030.
11.  47 U.S.C. A7 402.
12.  FCC Proposed Rule, supra note 3.
13.  42 U.S.C. A7 4332(2)(C).
14.  47 C.F.R. A7 1.1306(a). Agencies are permitted under NEPA to establish “categorical exclusions” for activities which do not have a significant effect on the human environment. 40 C.F.R. A7 1508.4
15.  47 C.F.R.A7 1.1307(c).
16.  Id.
17.  Id. A7 1.1308(d).
18.  16 U.S.C. A7 1536(a)(2).
19.  ABC, 516 F.3d at 1034-35.
20.  Id. at 1035.