Three conservation groups sued the Federal Communications Commission for failing to protect native birds from deadly collisions with seven radio and telephone towers on Kaua'i and the Big Island.

The federal Endangered Species Act requires the FCC to consult with the U.S. Fish and Wildlife Service when towers potentially have an impact on the well-being of endangered species, but the agency has not done so, according to the lawsuit, filed yesterday in U.S. District Court in Honolulu.

"They issued all of these permits and all of these towers were subsequently constructed. The FCC told the owners to consult, but they haven't," said Earthjustice attorney Paul Achitoff, who filed the complaint on behalf of the three groups.

FCC officials could not be reached yesterday to comment.

The endangered species cited in the action are the Newell's shearwater, or 'a'o, and the Hawaiian dark-rumped petrel, or 'ua'u. During nesting season, the birds are active at night, flying out from their inland burrows before dawn to forage at ocean feeding areas and returning after sunset. The lawsuit says towers pose "a substantial risk of collision and death to these birds, particularly young fledglings," since the night fliers can't see the structures, guy wires and utility lines, or they can become disoriented by lights associated with the towers.

The towers — five on the Big Island, two on Kaua'i — were built between 1996 and 2001 at heights of 200 to 420 feet, each in an area where shearwaters or petrels are known to fly, the lawsuit says.

"Building towers hundreds of feet high, near populations of endangered birds, without any environmental review, when scientists know that millions of birds collide with towers like this across the country, is unacceptable," said Marjorie Ziegler, executive director of the Conservation Council for Hawai'i, which filed the action in concert with the American Bird Conservancy and the Forest Conservation Council.

Achitoff and New Mexico attorney Letty Belin filed the FCC suit. They said the groups more than a year ago alerted the FCC to its responsibility to consult with the Fish and Wildlife Service. The lawsuit notes a series of communications between the FCC and the conservation groups starting in April 2004, with the federal agency in October notifying the tower owners and licensees they had 30 days to prepare a biological assessment to determine the impact of the towers on endangered species.

That has not happened and there has been no consultation of any kind with the Fish and Wildlife Service, the lawsuit claims.

"We're not saying no towers. We're saying consult, to find ways to minimize the impact on birds," Ziegler said.

Wildlife officials have found that relatively simple tower modifications can minimize bird mortality, the conservation groups said. These measures include limiting tower height, using white strobe lights instead of red pulsating lights, and reducing or eliminating use of guy wires.

"The FCC's failure to protect Hawai'i's imperiled birds is emblematic of the situation throughout the United States," said David Fischer of the American Bird Conservancy. He said the federal government itself estimates that as many as 50 million birds die annually from collisions with towers.