The avian mortality issue pending before the FCC (WT Docket 03-187) pits tower owners against environmentalists, as each side argues whether towers pose a significant collision risk to migratory birds. The lead commenter for the environmentalists is the American Bird Conservancy, or ABC. The group opposing restrictions on tower construction includes CTIA, PCIA and a number of large carriers and tower companies.

At issue in this proceeding is whether the FCC will create rules regarding height, location, lighting and other factors in the building of towers to make them less dangerous to migratory birds. If the environmentalists succeed, the FCC's actions would result in billions of dollars of new costs to tower owners and carriers.

The FCC's publication of the Avatar Report precipitated the latest round of comments on the topic. The Avatar Report was commissioned by the FCC to summarize the available scientific data regarding the threat to migratory birds caused by their collisions with communications towers. The general conclusion of the Avatar Report was that there was too little reliable data from which the FCC could adopt policies regarding tower construction.

ABC denounced the Avatar Report, claiming that reliable data placed before the FCC showed that towers are a significant threat to various bird species. Most comment filers, however, agreed with Avatar that reliable data did not exist and that the FCC should not create any restrictive policies at this time.

While most commenters focused on the FCC's jurisdiction and legal obligations in this area, Centerpointe Communications, a Texas tower company, noted the environmentalists were talking only about towers and not about the birds. “We recognized that the discussion was entirely one-sided, focusing only on the towers and not on the birds themselves, so we did considerable research in that area,” said K.C. Wright, Centerpointe's president.

Centerpointe's comments stated that among the 108 endangered and threatened species of birds, only six were found to be vulnerable to collisions with man-made objects. “It isn't a question of whether birds sometimes collide with towers,” Wright said. “The issue is whether those collisions are significant enough to justify FCC action. Looking at it from a bird's eye view, the answer has to be ‘no’.”

ABC was strenuous in its demand for FCC action, and its comments state that the FCC is under a legal obligation to create tower-construction standards and estimated that the number of birds killed in tower collisions could be as many as 40 million a year. However, some comment filers suggested that the number was less than 4 million. Meanwhile, other commenters noted that while the number of towers has increased substantially over the past 20 years, the population of many bird species also has increased because of better habitat management.

The U.S. Department of Fish and Wildlife has urged the FCC to create standards, although the USFWS only has voluntary guidelines for tower construction. It should be noted that the USFWS also oversees the taking of more than 15 million ducks and geese annually by recreational hunters.

This issue will likely continue to drag out before the FCC as it tries to balance its responsibility to the environment against its mandate to encourage deployment of telecommunications services. Although the environmentalists are adamant, the FCC may table the discussion until more and better scientific data is collected.

Robert H. Schwaninger Jr. is the president of Schwaninger & Associates, a Washington law firm that represents numerous tower owners whose interests could be affected by FCC policy regarding avian mortality. He can be reached at