[Federal Register Volume 71, Number 225 (Wednesday, November 22, 2006)]
[Proposed Rules]
[Pages 67510-67518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19742]


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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://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail: [email protected], 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: 
[email protected] 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 [email protected], 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://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 [email protected] 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]
BILLING CODE 6712-01-P