[Federal Register Volume 68, Number 177 (Friday, September 12, 2003)]
[Proposed Rules]
[Pages 53696-53702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23311]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[WT Docket No. 03-187; FCC 03-205]


Effects of Communications Towers on Migratory Birds

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(``Commission'') initiates an inquiry to gather comment and information 
on the impact that communications towers may have on migratory birds. 
The Commission seeks information that is supported by evidence 
concerning the number of migratory bird collisions with communications 
towers and the role that specific factors associated with 
communications towers may have in increasing or decreasing the 
incidence of such collisions. The Commission further requests 
information on whether any current or proposed research may provide 
useful data regarding the subjects of this inquiry, and what other 
actions may be necessary to spur additional, necessary research. The 
Commission also seeks comment on whether certain measures might 
minimize any adverse impacts of communications tower siting and 
construction on migratory birds, whether any such measures are 
supported by adequate and reliable empirical and/or scientific 
evidence, and how the use of such measures may affect the ability of 
licensees and other parties to provide efficient and reliable 
communications services.

DATES: Comments are due on or before November 12, 2003 and reply 
comments are due on or before December 11, 2003.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. See SUPPLEMENTARY INFORMATION for further filing 
instructions.

FOR FURTHER INFORMATION CONTACT: G. William Stafford at (202) 418-0563.

SUPPLEMENTARY INFORMATION: This is a summary of the Notice of Inquiry 
(``NOI'') in WT Dkt. No. 03-187, FCC 03-205, adopted August 8, 2003, 
and released August 20, 2003. The NOI seeks comment and information on 
the impact that communications towers may have on migratory birds. The 
full text of the NOI is available for public inspection and copying 
during regular business hours at the FCC Reference Information Center, 
Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. 
The Notice of Inquiry may also be purchased from the Commission's 
duplicating contractor, Qualex International, Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-
2893, facsimile (202) 863-2898, or via e-mail [email protected]. To 
request the NOI in accessible formats for people with disabilities, 
send an e-mail to [email protected] or call the Consumer & Governmental 
Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (tty).

I. Introduction

    1. The Commission is initiating the inquiry to gather comment and 
information on the impact that communications towers may have on 
migratory birds. As explained, we seek information that is supported by 
evidence concerning the number of migratory bird collisions with 
communications towers and the role that specific factors associated 
with communications towers may have in increasing or decreasing the 
incidence of such collisions. Such factors may include lighting, 
height, and particular type of antenna structure (including guyed and 
unguyed structures), meteorological conditions, location, physiographic 
features of sites, and known migratory bird migration corridors. We 
further request information on whether any current or proposed research 
may provide useful data regarding the subjects of this inquiry, and 
what other actions may be necessary to spur additional, necessary 
research. We also seek comment on whether certain measures might 
minimize any adverse impacts of communications tower siting and 
construction on migratory birds, whether any such measures are 
supported by adequate and reliable empirical and/or scientific 
evidence, and how the use of such measures may affect the ability of 
licensees and other parties to provide efficient and reliable 
communications services. Depending on the record developed in this 
proceeding, the Commission will consider whether the current state of 
research would support further action by the Commission in this area, 
including possible amendments of its environmental rules. See 47 CFR 
1.1301-1.1319.
    2. This inquiry is designed to gather comments on scientific 
research and other related data relevant to migratory bird collisions 
with communications towers, and on whether such research would support 
changes within the structure of our current rules and processes 
specifically related to protection of migratory birds.

II. Background

    3. Communications towers and other structures that support antennas 
provide the infrastructure for services licensed by the Commission, 
including broadcast television and radio, cellular, Personal 
Communications Service (PCS), Specialized Mobile Radio (SMR), and other 
advanced and emerging services. Communications towers also are used for 
the provision of private radio services used by business and 
government, and for public safety purposes.
    4. Migratory birds breed throughout the United States and Canada 
and, in the fall of each year, migrate to the southern United States, 
Mexico, and Central and South America for the winter. Currently, 836 
species are on the list of migratory birds maintained by the United 
States Fish and Wildlife Service (FWS). Birds that have been documented 
as vulnerable to collisions with communications towers include 
approximately 350 species of neotropical migratory songbirds, which 
generally migrate at night and may be most susceptible to collisions 
with lit towers on nights with low visibility due to fog, rain, or low 
cloud ceilings. At least one researcher has suggested that an estimated 
four to five million birds or more may be killed each year due to 
collisions with communications towers. Reports of bird deaths at single 
locations on a single day have included instances involving hundreds or 
even thousands of birds. However, to our knowledge there have been no 
studies sufficient to support a reliable estimate of the number of 
migratory birds that may have died as a result of collisions with an 
extensive number of communications towers located, for example, over 
wide geographic areas. In addition, while some literature suggests that 
certain factors--such as tower height, lighting systems, type of 
antenna support structure, and location--may increase or decrease the 
hazards that towers pose to migratory birds, there does not appear to 
be systematic research on an adequate scale regarding exactly how and 
to what extent, if at all, these factors contribute to any risk to 
migratory birds.

[[Page 53697]]

A. Licensing and Regulation of Radio Communications Services and 
Antenna Structures

    5. The Commission was created to regulate communications by wire 
and radio in the United States. See 47 U.S.C. 151. Section 1 of the 
Communications Act, as amended (Act), requires the Commission to 
regulate commerce in communications to ``make available, so far as 
possible, to all people of the United States * * * a rapid, efficient, 
Nation-wide, and world-wide wire and radio communication service with 
adequate facilities * * *.'' 47 U.S.C. 151. When Congress amended the 
Communications Act in the Omnibus Budget Reconciliation Act of 1993, it 
directed ``the development and rapid deployment of new technologies, 
products, and services for the benefit of the public * * * [and] 
efficient and intensive use of the electromagnetic spectrum.'' See id. 
Sec.  309(j)(3)(A), (D). The Telecommunications Act of 1996 was 
intended ``to promote competition and reduce regulation in order to 
secure lower prices and higher quality services for American 
telecommunication consumers and encourage the rapid deployment of new 
telecommunications technologies.'' Congress also has provided that all 
television broadcasting in the United States will be by digital 
technology by the end of the transition to digital television (DTV) on 
December 31, 2006. See 47 U.S.C. 309(j)(14)(A)-(B). In addition, the 
Commission is authorized to assign frequencies to classes of stations, 
and has designated spectrum for public safety use. The Wireless 
Communications and Public Safety Act of 1999 (911 Act) directs the 
Commission to make 911 the universal emergency number for wireless and 
wireline telephone service and, among other matters, to encourage and 
support the development of comprehensive emergency communications 
throughout the United States so that all jurisdictions offer seamless 
networks for prompt emergency service.
    6. As part of its responsibilities, the Commission issues licenses 
and permits relating to communications services and, pursuant to 
statute, requires antenna structures to conform to painting and 
lighting requirements. Section 301 of the Act requires the issuance of 
a license for radio communications, 47 U.S.C. 301, and construction 
permits from the Commission are required for certain services. See 47 
U.S.C. 319. Section 307(b) of the Act charges the Commission with the 
duty to distribute broadcast licenses ``among the several States and 
communities as to provide a fair, efficient, and equitable distribution 
of radio service to each of the same.'' 47 U.S.C. 307(b). Section 
303(q) of the Act provides that the Commission shall have ``authority 
to require the painting and/or illumination of radio towers if and when 
in its judgment such towers constitute, or there is a reasonable 
possibility that they may constitute, a menace to air navigation.'' 47 
U.S.C. 303(q). Section 303(q) further provides that the ``permittee or 
licensee, and the tower owner in any case in which the owner is not the 
permittee or licensee, shall maintain the painting and/or illumination 
of the tower as prescribed by the Commission pursuant to this 
section.'' To implement Section 303(q), the Commission has provided in 
its rules that the owner of any proposed or existing antenna structure 
that requires notice of proposed construction to the Federal Aviation 
Administration (FAA) must register the structure with the Commission 
prior to construction. 47 CFR 17.4(a). Specifically, such notification 
and registration is required for antenna structures that meet certain 
height and location criteria (generally towers more than 60.96 meters 
(200 feet) in height or located within certain distances of an airport, 
as specified in the Commission's rules). As of June 1, 2003, 
approximately 92,454 antenna structures were registered with the 
Commission. The Commission's rules further require that tower owners 
paint and light their antenna structures in accordance with the FAA's 
advisory specifications for air navigation safety purposes. 47 CFR 
17.6(a), 17.22, 17.23, and note preceding 47 CFR 17.45.

B. Environmental Statutes and Regulations

    7. The National Environmental Policy Act (NEPA) is the basic 
national charter for protection of the environment, and requires 
federal agencies to establish procedures to identify and account for 
the environmental impact of projects they undertake or authorize. NEPA 
provides that ``to the fullest extent possible * * * all agencies of 
the Federal Government shall * * * include in every recommendation or 
report on * * * major Federal actions significantly affecting the 
quality of the human environment'' a detailed statement on the 
environmental impact of the proposed action and any adverse 
environmental impacts that cannot be avoided if the proposal is 
implemented. 42 U.S.C. 4332(2)(c). The Council on Environmental 
Quality's (CEQ) regulations provide that ``human environment'' shall be 
``interpreted comprehensively to include the natural and physical 
environment and the relationship of people with that environment.'' 40 
CFR 1508.14. NEPA also requires all Federal agencies to consult with 
and obtain the comments of expert Federal agencies before taking any 
major action significantly affecting the quality of the human 
environment. 42 U.S.C. 4332(2)(c).
    8. The Endangered Species Act (ESA) prohibits the taking of any 
endangered species by any person unless authorized by FWS. 16 U.S.C. 
1538(a)(1)(B). The ESA also provides that ``[e]ach Federal agency 
shall, in consultation with and with the assistance of the Secretary 
[of the Department of the Interior], 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 which is determined by the Secretary * * * to 
be critical * * *.'' Id. Sec.  1536(a)(2). The Migratory Bird Treaty 
Act (MBTA) makes it ``unlawful at any time, by any means or in any 
manner, to pursue, hunt, take, capture, kill, attempt to take, capture 
or kill * * * any migratory bird'' unless permitted by FWS. See 16 
U.S.C. 703, 704(a). Although certain species of migratory birds are 
protected under the ESA, many additional species are protected under 
the MBTA and not the ESA.

C. The Commission's Environmental Rules

    9. The Commission has implemented subpart I of NEPA pursuant to 42 
U.S.C. 4321-4335, in part 1, subpart I of its rules. See 47 CFR 1.1301. 
Under these rules, any Commission action deemed to have a significant 
effect upon the quality of the human environment requires the 
preparation of an Environmental Impact Statement (EIS). 47 CFR 1.1305. 
Any action deemed potentially to have a significant environmental 
effect under categories specified in section 1.1307(a)(1) through (8) 
and (b) of the rules requires the preparation of an Environmental 
Assessment (EA). Id. 1.1307(a)(1) through (8), (b). In addition, the 
Commission will require the preparation of an EA if it is determined 
that a particular action, which is otherwise categorically excluded 
under the rules, may have a significant environmental impact. Id. 
1.1307(c), (d). Actions that are deemed individually and cumulatively 
to have no significant effect on the quality of the human environment 
are categorically excluded from environmental processing, and do not 
require the preparation of an EA by

[[Page 53698]]

the applicant or the preparation of an EIS by the agency.
    10. Prior to construction, all tower owners are required to 
evaluate whether towers that require registration fall within one of 
the specified categories of facilities with potential significant 
environmental impact, to file an EA if they do, and to certify 
compliance with the environmental rules on the Antenna Structure 
Registration application form. Similarly, license and certain other 
permit applicants are required to certify compliance with the 
environmental rules on the appropriate application form, depending on 
the particular service. If an EA is not required, the party may proceed 
with the project without providing any environmental documentation to 
the Commission. However, if there would be such a potential impact, an 
EA must be submitted and a Finding of No Significant Impact or 
Environmental Impact Statement issued before construction.
    11. Section 1.1307(a)(3) provides that an EA is required for 
proposed facilities that may affect listed threatened or endangered 
species or designated critical habitats, or are likely to jeopardize 
the continued existence of any proposed endangered or threatened 
species or likely to result in the destruction or adverse modification 
of proposed critical habitats, as determined by the Secretary of the 
Interior pursuant to the ESA. 47 CFR 1.1307(a)(3). Thus, applicants and 
licensees are routinely required to evaluate their construction 
projects for potential adverse effects on birds that are endangered, 
threatened, or otherwise subject to Sec.  1.1307(a)(3), and to file an 
EA if the terms of Sec.  1.1307(a)(3) are met. The Commission's rules 
require the solicitation and consideration of comments of the 
Department of Interior with respect to actions specified in Sec.  
1.1307(a)(3) of our rules. Id. 1.1308 note; see id. (a)(3). With 
respect to other birds, routine evaluation is not required, but an EA 
shall be required under Sec.  1.1307(c) or (d) if the relevant Bureau 
finds, in response to a petition or on its own motion, that the 
proposed construction may have a significant environmental impact other 
than impacts specified under Sec. Sec.  1.1307(a)(1) through (8) and 
(b) of the Commission's rules. The Commission has acted under Sec.  
1.1307(c) to consider the impact that proposed construction would have 
on migratory birds.

D. Developments Relating to Migratory Birds and the Construction of 
Communications Towers

    12. A Communication Tower Working Group (CTWG) consisting of 
representatives from the scientific, federal and state agency, 
environmental, consulting, and industry communities was formed under 
the auspices of FWS to help develop research on the effect that 
communications facilities may have on migratory birds. The research 
issues include the roles that certain factors associated with 
communications towers, including lighting, height, and the type of 
tower, may have on migratory birds. The CTWG also has sought to examine 
the potential for research into measures that may minimize migratory 
bird collisions with towers. On September 14, 2000, FWS issued its 
``Service Guidance on the Siting, Construction, Operation and 
Decommissioning of Communications Towers,'' which includes voluntary, 
interim guidelines to be used by FWS personnel and recommended for use 
by the communications tower industry in considering proposed tower 
sitings for their impacts on endangered species and migratory birds. 
The guidelines are to be used by FWS personnel until the CTWG's 
research is ``completed, or until research efforts uncover significant 
new mitigation measures.'' The guidelines are based on research 
conducted in several Eastern, Midwestern, and Southern states, and 
refined through FWS regional review.

III. Request for Comments

A. Current State of Scientific Information

    13. The impact that communications towers may have on migratory 
birds has been the subject of study or other analysis for decades, and 
several reports have shown bird deaths at individual locations during a 
single day or over multiple years. Nevertheless, it appears that 
current knowledge about both the extent to which towers kill migratory 
birds and the specific factors that may contribute to any danger is 
limited. For example, a March 2000 review of recent literature and 
research in progress that was prepared for FWS, Office of Migratory 
Bird Management, found, among other matters, that: (a) For the 5-year 
period 1995-1999, very little research was published or conducted that 
is relevant to the bird-communications tower collision issue; (b) since 
certain ``major reviews'' of the late 1970s and early 1980s, there has 
been little research on the subject; and (c) for the period before 
1985, there is a body of literature on the issue, but most of it is 
anecdotal and the literature itself has not been examined analytically.
    14. We seek comment on and analysis of existing scientific research 
and studies relating to the impact that communications towers may have 
on migratory birds. As discussed, at least one source suggests that an 
estimated four to five million birds may be killed each year due to 
collisions with communications towers, and another suggests that the 
number may be higher. In addition, there are reports of bird deaths at 
individual locations during one day or over time. We seek comment on 
the extent of migratory bird deaths that may be attributable to 
collisions with communications towers, the species and geographic 
locations involved, and what the raw numbers mean in terms of survival 
of species or in other relevant contexts. We ask that comments 
thoroughly discuss the methods that are used to quantify any 
information provided on this matter.
    15. We also seek comment on the adequacy and reliability of 
scientific research on the impact of towers on migratory birds, 
including whether the parties that conducted the research are 
considered to be experts in the field, and whether the research was 
conducted in a scientifically-acceptable and rigorous manner. Comments 
should address whether the research was performed over an adequate 
period of time. Specifically, how many years and migration seasons were 
studied, and why is the length of time either adequate or inadequate to 
support the empirical conclusion? With respect to the scope of the 
study and research, was it conducted in a manner that allowed all 
relevant variables to be considered? We generally expect that variables 
affecting the impact that towers may have on migratory birds are likely 
to fall within two categories: (a) Those that may be within the control 
of the tower owner or licensee, such as tower lighting, height, type of 
tower structure, and location; and (b) those that are the result of 
natural phenomena, such as weather, low cloud ceilings, and fog. We 
seek comment on the extent to which research has considered these or 
other variables, and whether the research has considered the 
appropriate combination of variables in order to achieve reliable 
results. For example, were a sufficient number of towers studied in 
order to provide an adequate sampling and a reliable indication of the 
impact of towers on migratory birds? Were the towers located at 
different sites, and did they include a range of different towers with 
different variables including: height; location in different geographic

[[Page 53699]]

settings, including proximity to migratory bird flyways; different 
lighting systems; and different tower structures, including the use of 
guy wires? Have studies used Geographic Information Systems (GIS), 
radar, acoustical monitoring, or other methods to assess migratory bird 
presence, help conduct risk assessments, and determine high bird 
density areas or areas of critical importance to birds? On the other 
hand, is it necessary for research to examine different towers in order 
to reflect these and other variables? For example, does a study that is 
conducted at a single location over a long period of time provide 
reliable scientific results for the Commission to use to propose 
changes in its rules and processes, or is it necessary for numerous 
towers at different locations to be studied?
    16. We also seek comment on whether the research included effective 
protocols to account for the actual numbers of birds killed at specific 
towers. Specifically, did the research employ standard metrics to count 
dead birds at individual towers in order to provide a uniform analysis 
of results from all towers for comparative purposes, or was some other 
method used? How often and at what times of day were searches 
conducted, and what other methods were used to promote searcher 
efficiency and control scavenger removal (e.g., clearing of areas 
around the base of the tower or use of netting)? Comments should also 
address any other measures that were or were not used to account or 
control for other relevant variables, such as whether efforts were made 
to reduce lighting located near but not on the towers that otherwise 
could attract migratory birds. We seek a critical analysis of the 
research, which examines both the adequacies and inadequacies of the 
research, its methodologies, findings, and conclusions.
1. Tower Lighting
    17. Lighting may be an important factor in attracting and/or 
disorienting migratory birds at communications towers. Particularly in 
inclement weather, including cloudy nights, birds entering an 
illuminated area may be reluctant to leave and may be susceptible to 
colliding with lighted towers, their supporting guy wires, or each 
other. It has been suggested that the color of tower lights, such as 
white, white with ultraviolet, or a specific color like red, and the 
duration of any pulse in the lights, such as strobe, slow flash, or 
steady pulse, may be factors that can alter the attraction of lighting 
to migratory birds. The intensity of light, e.g., in lumens, also may 
play a role. Some reports suggest that white strobe lights may be less 
attractive to neotropical migratory species than steady or flashing red 
incandescent lights, while the attraction of red strobe lights to 
migratory birds is currently unknown.
    18. We seek comment on whether and why lighted towers attract 
birds, and whether different lighting systems increase the potential 
for migratory bird collisions with communications towers. We seek 
information on whether studies document any difference in risk posed by 
lighting systems that use lights of different color or different rates 
of flash, pulse, or strobe (including red or white strobe). Comments 
also should address the effects of lighting color, duration, intensity, 
and type (e.g., incandescent, strobed, neon, or laser) on bird 
attraction, especially at night during inclement weather and during 
spring and fall migrations. In addition, we ask that commenters take 
into consideration, where appropriate, the impact of different tower 
lighting systems on human communities. Further, are particular lighting 
systems or colors more or less attractive to migratory birds based on 
differing tower heights? We also ask that commenters recommend specific 
lighting systems to minimize migratory bird collisions with towers, to 
the extent supported by scientific findings.
    19. Air safety and navigation issues are related to the painting 
and lighting of towers. The FAA has established painting and lighting 
advisory specifications for air safety and navigation purposes, and our 
rules require that the owners of communications towers paint and light 
their antenna structures in accordance with those advisory 
specifications. We seek comment on the impact, if any, that our 
painting and lighting requirements may have on migratory bird 
collisions with towers. Comments should address and suggest solutions 
to any conflicts that may exist between the advisory specifications and 
other related rules on the one hand, and causes of migratory bird 
collisions on the other. Comments and suggestions also should consider 
air safety and navigation concerns relating to towers and their 
lighting and marking (e.g., towers are marked and lighted to be visible 
by pilots), and the obligations of the Commission with respect to air 
safety and navigation.
2. Tower Height
    20. The height of towers may contribute to the extent of their 
impact on migratory birds. One report suggests that an important 
analysis would be to compare towers of different heights, that there 
have been relatively few studies of towers less than 400 feet in 
height, and that certain literature, although perhaps only suggestive, 
does not generally implicate such shorter towers in a significant 
number of bird deaths. Research conducted at two specific locations 
suggests that taller towers, and the structures associated with them, 
may increase avian mortality at those sites. However, it has been 
suggested that these and other studies do not definitively establish 
that tall towers are responsible for more bird deaths than shorter 
towers, and the apparent lack of mortality studies at short towers may 
make it premature to assume that short towers cause fewer bird deaths 
than tall towers.
    21. We seek comment on the role of tower height as a cause of 
collisions by migratory birds with communications towers. Are there 
reliable scientific studies that compare the impacts on migratory birds 
of towers of different heights, and do they control for other variables 
such as geographic location, proximity to bird movement corridors, and 
prevailing weather conditions? If there are such studies, what are the 
results and the significance, if any, for determining the height of 
tower that may pose the greatest or least risk to migratory birds? Do 
studies examine whether short towers have less impact on migratory 
birds than tall towers, and do they identify the heights of the towers 
that were studied? The comments should consider and document, to the 
extent possible, whether there is a height threshold at which avian 
mortality becomes significant to an avian population, and any other 
factors that may lead to a determination of critical tower height for 
purposes of minimizing migratory bird collisions with towers, including 
whether the critical height threshold may be different in different 
geographic locations or weather conditions. We also ask that comments 
address the relationship, if any, of tower height with other factors, 
such as lighting, and whether there are situations where tower height 
could be limited to deter collisions by birds with towers yet still 
allow the provision of reliable communications services.
3. Type of Antenna Structure
    22. The type of antenna support structure may be another important 
factor in the extent to which communications towers have an impact on 
migratory birds. For example, guy wires could create a level of risk to 
migratory birds that is not present with unguyed towers. We seek 
comment on

[[Page 53700]]

what impact, if any, different tower structures may have on migratory 
birds. Comments should include any studies or research on this issue, 
and should address the relative impact on migratory birds of guyed 
towers, self-supporting lattice towers, monopole towers, or other 
structures such as ``hidden'' towers that are made to resemble trees, 
for example. Are there factors that may make a particular type of tower 
structure more or less of a risk to migratory birds? For example, would 
guyed towers pose more of a risk than other tower structures to 
migratory birds at night in inclement weather? We also seek comment on 
whether particular tower designs or potential deterrent devices such as 
visual markers may deter migratory birds from towers.
4. Location of Antenna Structures and Other Factors
    23. We seek comment on research or other data relating to any other 
matters within the scope of this inquiry. For example, is there 
information concerning the impact on migratory birds of communications 
towers located in or near specific habitats, such as wetlands, which 
may be a possible location of migratory bird populations? Do towers on 
ridges, mountains, or other high ground have a differential impact on 
migratory bird populations and, if so, are there scientifically 
rigorous studies that address such effects and their causes? We seek 
comment on the impact on migratory birds, if any, of locating towers in 
areas with a high incidence of fog, low clouds, or similar obscuration, 
in proximity to coastlines and major bird movement corridors, or either 
clustered near or dispersed from other towers. Comments on the role of 
any of these factors should consider the extent of any such impact 
during migration seasons. We also seek comment on any other factors 
that may influence the impact of communications towers on migratory 
birds. In addition, are data available from studies of non-
communications facilities which may be relevant on the issue of the 
impact of communications facilities on migratory birds? If such 
information is relied upon, commenting parties should establish the 
relevance of that information and the relationship of facilities used 
in those industries to facilities used in the communications industry.
    24. Certain migratory bird species may hold particular cultural or 
religious significance to Indian Tribes. The Commission has made a 
commitment to consult with federally recognized Indian tribes to the 
extent practical prior to implementing any regulatory action or policy 
that will significantly or uniquely affect Tribal governments, their 
land and resources. Consistent with that commitment, we specifically 
seek comments from the Tribes and other parties on whether any of the 
questions raised in this inquiry will significantly impact Tribal 
governments, their land, and resources.

B. Need for and Scope of Additional Study

    25. In the event that parties believe that existing research is 
insufficient to permit the Commission to address fully the issue of 
migratory bird collisions with towers, we seek comment on what 
additional study or studies may be needed. We ask for comment on what 
variables the research should address, including possible lighting 
regimes, tower height, type of structure, location, and impact of 
different weather conditions. Comments should discuss the specific 
scope and parameters of recommended studies, including: the number of 
towers; different lighting regimes to be studied; whether a range of 
towers with different heights should be included; the geographic 
positioning of towers, including such factors as the incidence of 
inclement weather, topography, and proximity to areas that may be 
attractive to migrating birds, such as wetlands; and the different 
tower structures such as guyed or unguyed, including monopole, lattice, 
or other structures. We also seek comment on what types of procedures 
should be used to monitor birds that may be killed at communications 
towers during these studies. In addition, we request comment on whether 
studies can be structured specifically to research potential methods of 
reducing the potential for migratory bird collisions with towers.
    26. Commenters should consider how much time would be needed to 
complete a new study or studies. Specifically, how many fall and spring 
migration seasons should be covered by any research, and how many 
summer seasons, if any, would be needed to monitor impacts on breeding, 
nesting, and local resident avian species? We seek comment on the 
factors that would impact the length of any study, including the number 
of towers that would be the subject of the research, and the particular 
testing procedures that would be used. In addition, there may be 
unpredictable factors, such as weather, that affect the time that it 
would take to complete a study. Estimates of the length of a study also 
should identify whether the estimates include the preparation of 
smaller pilot studies that may be needed to obtain meaningful data that 
would be used to design a broader and more in-depth study. We also seek 
comment on whether pilot studies followed by one or more larger studies 
are necessary, or whether one or more smaller studies could yield 
sufficient information on which the Commission could base future 
actions respecting migratory bird issues. If one or more smaller 
studies alone would be adequate, comments should address the relevant 
protocols. We further seek comment on the potential value of monitoring 
bird deaths at particular towers outside the context of a formal study, 
either in addition to or in lieu of such studies.
    27. We also seek comment on the appropriate party or parties to 
design and conduct a study. The Commission is not an expert in the area 
of migratory birds, and we seek comment on what other entity might 
appropriately oversee any research that could be used to establish 
relevant standards for the Commission's use. In this regard, we note 
that the FWS is the lead federal agency for managing and conserving 
migratory birds, and its Division of Migratory Bird Management 
undertakes a number of surveys in conjunction with the FWS Regional 
Offices. We also seek comment on any ongoing or planned studies with 
which the Commission might coordinate in order to achieve synergies and 
avoid duplication of effort.
    28. Another important consideration is the cost of a study and the 
source of funding. Cost can vary widely depending, in part, on the 
length of the study, the number of towers to be included, the extent of 
the geographic area, and particular tower features such as height and 
lighting. Sources for funding such studies have been difficult to 
identify. Comments should address both the estimated cost of any 
studies and potential sources of funding.

C. Suggested Methods To Minimize Impacts

    29. We seek comment on whether existing studies or research address 
the use of particular methods to minimize any impact of communications 
towers on migratory birds. For example, would particular lighting 
systems, devices located on or near facilities to deter migratory 
birds, or other measures help to minimize bird collisions with 
communications towers? Comments should identify any particular methods, 
discuss the extent to which they have been used on communications 
towers or other similar relevant structures, and quantify the results 
of their use. In addition, would alternative siting of towers to avoid 
particular areas be a

[[Page 53701]]

reasonable method to minimize impacts, and are there alternate 
technologies available that would permit fewer and/or shorter towers to 
be built, yet still permit communications needs to be met? On the other 
hand, would the use of alternate siting be constrained by existing 
technology, the need for communications carriers to provide coverage 
for their services, build-out requirements under the Commission's 
rules, or any other requirements? In addition, do certain parts of 
towers, e.g., top, middle, or lower sections, pose more or less of a 
potential for collisions with migratory birds and, if so, are there 
specific construction techniques, deterrent actions, or other methods 
that would be useful to minimize impacts?
    30. The FWS Tower Siting Guidelines encourage certain measures that 
FWS says will ``provide significant protection for migratory birds 
pending completion'' of the CTWG's recommendations. The voluntary 
guidelines, which FWS recommends for use by all companies, license 
applicants, or licensees proposing new tower sitings, include to the 
extent feasible: collocation of antennas on existing towers or other 
structures rather than new tower construction; where collocation is not 
feasible, construction of new towers that are no taller than 199 feet 
above ground level without guy wires or lighting; siting new towers 
within existing tower farms; and use of the minimum acceptable amount 
of pilot warning and obstruction avoidance lighting recommended by the 
FAA for towers that require lights for aviation safety. As described, 
FWS intended the guidelines for interim use, and they were established 
in anticipation of further action by the CTWG. Further, FWS states that 
the guidelines would be ``updated as new information becomes 
available.'' Thus, these guidelines were not adopted as final measures, 
but were developed with the understanding that determining the 
appropriate methods to minimize the impact of communications towers on 
migratory birds would be an ongoing process.
    31. We request comment on the scientific basis for these 
guidelines, the general use of the guidelines and the use of each of 
the specific guidelines, and any other potential measures to minimize 
impacts on migratory birds within the scope of our current rules. For 
example, comments could consider whether an MOU or other agreement 
between the Commission and other agencies, such as the FWS, could be 
used to specify the process to review potential impacts of antenna 
support structures on migratory birds, or to help facilitate any 
necessary research on the matters addressed in this inquiry. Comments 
also should address whether the current state of scientific knowledge 
on causes of bird collisions with communications towers supports the 
use of any or all of the FWS Tower Siting Guidelines. Further, does 
current scientific evidence support a finding that particular towers do 
not significantly pose a threat to migratory birds? For example, does 
such evidence exist relating to towers of a particular height, e.g., 
unlit towers that are less than 200 feet in height, or towers that use 
particular lighting, e.g., towers with primarily white strobe lighting? 
Commenters in particular should address the relationship of any 
measures they support or oppose with the current state of scientific 
knowledge. Comments also should consider how best to implement any of 
these matters within the current structure of our rules.
    32. Particular guidelines intended to minimize impacts on migratory 
birds may, depending on their application, have an impact on Commission 
licensees, applicants, or other parties with respect to tower design 
and engineering, the ability to provide necessary communications 
services, liability, and costs. We seek comment on what effects, if 
any, the recommended FWS guidelines or other efforts to minimize 
impacts have had in these areas. Specifically, comments should address 
whether current or potential increased application of any of the 
guidelines would contribute to delay in tower construction, the 
provision of Commission-licensed services, or the transition to digital 
television. Comments should address advantages and disadvantages 
associated with different means of implementing the FWS guidelines, 
possible revisions to those guidelines, or other measures.
    33. The Commission licenses and regulates the use of radio 
transmitters by state and local governments in public safety 
activities. We seek comment on the impact that restrictions or 
guidelines regarding tower siting and construction to protect migratory 
birds may have on the use of radio transmission for public safety. What 
would be the effect on the coverage provided by towers used to provide 
public safety service if those towers were, for example, subject to 
restrictions on height or other features in order to protect migratory 
bird populations? We also seek comment on what impact tower 
construction restrictions may have on homeland security objectives. In 
addition, are there other potential conflicts between potential 
measures to minimize impacts of communications towers on migratory 
birds and the availability of communications towers to address security 
concerns?
    34. The Commission is committed to serving all parties interested 
in the impact that communications towers may have on migratory birds as 
well as resources allow. To this end comment is sought on ways that the 
Commission can do so better. What can the Commission do to meet its 
responsibilities under relevant statutes and rules better? Should the 
Commission develop additional staff expertise on avian mortality 
issues? Would the expertise of an ecologist or environmental biologist 
be helpful? What staff backgrounds are most important? What additional 
training should be made available for existing staff? Are there 
Commission procedures or rules that impede industry's or environmental 
groups' efforts to address issues related to avian mortality? For 
example, are there aspects of our EA requirements that could be 
improved with respect to migratory bird issues? Is there data that the 
Commission collects that could be of assistance to researchers in this 
field?

IV. Procedural Issues

A. Ex Parte Presentations

    35. This is an exempt proceeding in which ex parte presentations 
are permitted (except during the Sunshine Agenda period) and need not 
be disclosed.

B. Filing of Comments and Reply Comments

    36. We invite comment on the issues and questions set forth. 
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 November 12, 2003, and reply comments on or 
before December 11, 2003.
    37. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS) or by filing paper copies. Given recent changes in 
the Commission's mail delivery system, parties are strongly urged to 
use the ECFS to file their pleadings. Comments filed through the ECFS 
can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic 
submission must be filed. In completing the transmittal screen, 
electronic filers should include their full name, Postal Service 
mailing address, and the applicable docket number. Parties may also 
submit an electronic comment by Internet e-mail. To receive filing 
instructions for e-mail

[[Page 53702]]

comments, commenters should send an e-mail to [email protected], and should 
include the following words in the body of the message, ``get form 
.'' A sample form and directions will be 
sent in reply.
    38. Parties who choose to file by paper must file an original and 
four copies of each filing. All filings by mail (including U.S. Postal 
Service Express Mail, Priority Mail and First Class Mail) must be sent 
to the Commission's Secretary, Marlene H. Dortch, Federal 
Communications Commission, Office of the Secretary, 445 12th Street, 
SW., Washington DC 20054. All filings sent to the Commission by 
overnight delivery, e.g., Federal Express (other than by U.S. Postal 
Service Express Mail and Priority Mail), must be sent to the 
Commission's Secretary, Marlene H. Dortch, Federal Communications 
Commission, Office of the Secretary, 9300 East Hampton Drive, Capitol 
Heights, MD 20743. All hand-delivered or messenger-delivered filings 
must be delivered to the Commission's filing location at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002-4913. The 
filing hours at this facility 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.
    39. Parties who choose to file by paper should also submit their 
comments on diskette to: G. William Stafford, Commercial Wireless 
Division, Wireless Telecommunications Bureau, Federal Communications 
Commission, 445 12th Street, SW., Washington, DC 20554. The required 
diskette copies of submissions should be on 3.5-inch diskettes 
formatted in an IBM compatible format using Microsoft Word or 
compatible software. Each diskette should be accompanied by a cover 
letter and should be submitted in ``read only'' mode. The diskette 
should be clearly labeled with the commenter's name, proceeding, type 
of pleading (comment or reply comment), date of submission, and the 
name of the electronic file on the diskette. The label should also 
include the following phrase ``Disk Copy--Not an Original.'' Each 
diskette should contain only one party's pleadings, preferably in a 
single electronic file. In addition, commenters must send diskette 
copies to the Commission's copy contractor, Qualex International, 
Portals II, 445 12th Street SW., CY-B402, Washington, DC 20554.
    40. Regardless of whether parties choose to file electronically or 
by paper, parties should also serve the following with either one copy 
of each filing via e-mail or two paper copies: (1) Qualex 
International, Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC, 20554 (telephone (202) 863-2893; facsimile (202) 863-
2898) or e-mail at [email protected]; and (2) G. William Stafford, 
Federal Communications Commission, Room 6329, 445 12th Street, SW., 
Washington, DC 20554, or e-mail at [email protected].
    41. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference 
Information Center, Federal Communications Commission, 445 12th Street, 
SW., Room CY-A257, Washington, DC 20554. These documents also will be 
available electronically from the Commission's Electronic Comment 
Filing System. Copies of filings in this proceeding may be obtained 
from Qualex International, Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC, 20554, telephone (202) 863-2893, facsimile (202) 
863-2898, or via e-mail at [email protected]. To request materials in 
accessible formats for people with disabilities (braille, large print, 
electronic files, audio format), send an e-mail to [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0531 
(voice), 202-418-7365 (tty).

V. Ordering Clauses

    42. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4(i), 303(r) of the Communications Act, 47 
U.S.C. 151, 154(i), and 303(r), this Notice of Inquiry is adopted.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-23311 Filed 9-11-03; 8:45 am]
BILLING CODE 6712-01-P