FCC is scolded over towers' effect on birds

Wildlife officials cite millions of bird deaths. An appeals court asks for better protections.

By Craig Pittman, Times Staff Writer
Published February 20, 2008

A federal appeals court ruling Tuesday criticized the Federal Communications Commission for approving thousands of communications towers along the Gulf Coast without worrying about their impact on migratory birds.

From now on, the FCC must institute safeguards to help protect the millions of birds that fly around the towers each year, said the U.S. Court of Appeals for the District of Columbia. That includes consulting with the U.S. Fish and Wildlife Service and giving the public notice when a new tower is being considered.

Environmental groups say Florida has one of the highest tower densities per square mile in the nation. Biologists found that one tower near Tallahassee killed more than 44,000 birds between 1955 to 1980. After one overcast night, more than 4,000 dead birds were found at the tower's base.

An FCC spokeswoman declined to comment Tuesday on the ruling or if the commission will appeal. But the American Bird Conservancy and the Earthjustice legal group hailed it as one that could finally force the FCC to follow the law other federal agencies have to follow - something environmental groups have been pursuing for nearly six years.

Every fall, 100-million birds from across the eastern United States migrate across the Gulf of Mexico in search of warmer weather in South America. Every spring they return, making a second arduous journey across the water.

On both trips, they collide with more than 6,000 cellphone, television and communications towers that line the Gulf Coast.

Attracted by a tower's flashing lights, the disoriented birds fly in circles until they smack into the tower, its guy wires or the ground. Studies have suggested that changing the color of lights or flashing pattern might make them less likely to confuse birds, but no federal agency has mandated a change.

Nationwide, federal wildlife officials blame towers for killing at least 5-million birds a year, perhaps as many as 50-million.

Federal law says it's illegal to kill a single migratory bird, but no tower owner or builder has ever been charged with that crime. However, about five years ago the U.S. Fish and Wildlife Service began notifying tower applicants of the possibility.

The federal wildlife agency became alarmed about the spread of towers after an incident in Kansas in 1998. One foggy night, 10,000 Lapland longspurs hit a 420-foot TV tower and died. Since then wildlife officials have been urging the FCC to work with them to find a solution to the problem, to no avail.

Instead, the appeals judges noted, the FCC told environmental groups they would have to prove there was an environmental impact before the commission would assess the impact. That approach demonstrates "an apparent misunderstanding of the nature of the obligation imposed" by federal law, the judges said.

The judges also criticized the FCC's failure to let the public comment on tower applications before the commission voted.

"The Catch-22 ... is that the commission provides public notice of individual tower applications only after approving them," the judges wrote.