Another shoe has dropped in the commission’s plan to balance the need for tall towers versus the safety of migratory birds.

More than 30 companies, comprised of tower owners and clients, are challenging the FCC’s decision not to provide a safe harbor from its new tower rules for structures 350-foot or below, saying the commission’s rejection of the safe harbor burdens small businesses and does not take into account the current harsh economic climate.

Further, argue the tower companies in a petition for reconsideration filed by law firm Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP, legislation is pending in Congress to require the commission to assess the economic impact of its proposed rules and identify any market failure, consumer harm or regulatory barrier to investment before adopting any economically significant rules.

“It is well established that antenna towers overall have a negligible impact on avian mortality, when viewed in the context of all avian mortality,” according to the companies, which includeBrinks, Consolidated Edison of New York, and several telephone companies like West Texas Rural Telephone Cooperative, The Ponderosa Telephone Co. and Dumont Telephone Company. “Despite these showings, the commission erroneously concluded that it had no authority to adopt a safe harbor, even on an interim basis,” they wrote.

We’ve reported the FCC awaits approval of the Office of Management and Budget before its new rules affecting tall towers go into effect.

At heart of the issue is the disagreement which has festered for years between environmentalists and broadcasters over whether tall towers kill migratory birds.

Broadcast engineers generally have said there’s no proof that towers kill migratory birds, while environmentalists disagree, saying towers, lights and guy wires pose a deadly threat.

When the agency issued its new rules in December, it said evidence in the record suggests the likely impact of towers on migratory birds increases with tower height. In general, towers over 450 feet in height will face more scrutiny, including the need to conduct an environmental assessment and allowing the public time to comment on where a new tower would be sited before construction, such as publishing a newspaper notice or by going through a local zoning public notice process. An environmental notice is also required if an applicant changes the lighting of an existing tower “to a less preferred” style.

The local newspaper notice the FCC required those who want to build a tall tower in advance of construction won’t be as effective as in the past, note the companies, because of reductions in newspaper circulation, loss of advertisers and bankruptcies. The benefits of local notice publication do not outweigh the burden on small businesses, they argue.

Oppositions to this petition must be filed within 15 days of Federal Register publication and replies within 10 days after that.