Court Vacates FCC’s Migratory-Birds Order

U.S. Court of Appeals for the D.C. Circuit Tells Federal Communications Commission to Deal with Gulf Coast Issue

By John Eggerton -- Broadcasting & Cable, 2/20/2008 12:40:00 PM

The U.S. Court of Appeals for the D.C. Circuit told the Federal Communications Commission a 2006 decision was for the birds, with commissioner Michael Copps adding that the agency should not just keep kicking the dead-bird problem down the road.

In a decision Tuesday, the court vacated an FCC order dealing with the impact of communications towers on migratory birds in the Gulf Coast region, saying that it violated its own procedures by not conducting at least an environmental assessment of the impact before dismissing a petition by the American Bird Conservancy, which requested an environmental impact statement.

The FCC opened an inquiry in 2003 into the effects of the towers on birds. Estimates of bird deaths by environmental groups ranged from 4 million-20 million per year.

In 2006, the FCC issued a proposed rulemaking tentatively suggesting the use of white strobes instead of standard red lights and making various proposals. But it declined to launch an EIS, nor conduct an EA, saying that there was a lack of specific evidence on the impact of towers on humans and the lack of scientific consensus on the impact on migratory birds.

FCC rules implementing the National Environmental Protection Act exclude towers because the commission concluded that they have "no significant effect on the quality of the human environment," but the court said this did not mean the FCC didn't have to at least conduct an EA if a party -- in this case, the bird lovers -- alleged a significant environmental impact.

Copps took the opportunity to criticize FCC environmental policies in particular and its process in general.

"For years, I have been disappointed with the FCC’s failure to get serious about its environmental responsibilities," he said in a statement. "Now the D.C. Circuit has affirmed something this agency should have acknowledged a long time ago: that the National Environmental Protection Act, the Endangered Species Act and the Migratory Bird Treaty Act require the FCC to take a hard look at the effects of communications towers on migratory birds.”

He added, "Yesterday’s decision should be a wake-p call to this agency. It is time to stop acting as if a problem will go away if we just keep kicking it down the road."