Canyon Area Residents for the Environment

FEDERAL COMMUNICATIONS COMMISSION

[FCC 99-123]

Canyon Area Residents for the Environment

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document denies an Application for Review of a letter

ruling of October 9, 1998, by Dale Hatfield, Chief of the Office of

Engineering and Technology , which denied the request of Canyon Area

Residents for the Environment (CARE) for a blanket prohibition on the

siting of communications facilities on Lookout Mountain near Denver,

Colorado, and denied CARE's proposal that the Commission adopt stricter

limits on public exposure to radiofrequency (RF) radiation.

DATES: Effective June 30, 1999.

FOR FURTHER INFORMATION CONTACT: Robert Cleveland, Office of

Engineering and Technology, (202) 418-2422.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's

Memorandum Opinion and Order, FCC 99-123, adopted May 27, 1999, and

released May 27, 1999. The full text of this Commission decision is

available for inspection and copying during normal business hours in

the FCC Reference Center (TW-A306), 445 12th Street, SW, Washington,

DC, and also may be purchased from the Commission's duplication

contractor, International Transcription Services, (202) 857-3800, 2100

M Street, NW, Suite 140, Washington, DC 20036.

Summary of the Memorandum Opinion and Order

1. The Commission has before it an Application for Review and

related pleadings filed by the Canyon Area Residents for the

Environment (CARE) dated November 5, 1998, seeking review of a letter

ruling of October 9, 1998, by Dale Hatfield, Chief of the Office of

Engineering and Technology (OET Letter), which denied CARE's request

for a blanket prohibition on the siting of communications facilities on

Lookout Mountain near Denver, Colorado, and denied CARE's proposal that

the Commission adopt stricter limits on public exposure to

radiofrequency (RF) radiation. CARE's Application for Review was

opposed by the Lake Cedar Group (LCG). We deny the Application for

Review.

Procedural Issues

2. As an initial matter, we note that CARE's Application for Review

and its supplementary filings raise a number of issues that were not

before the staff when it considered CARE's earlier filings in the OET

Letter. CARE raises for the first time the questions of historical

preservation, endangered species, and blanketing interference. Section

1.115(c) of the Commission's Rules states that: ``[N]o application for

review will be granted if its relies on questions of fact or law upon

which the designated authority has been afforded no opportunity to

pass. 47 CFR 1.115(c). In this case, CARE has not adequately explained

why it was unable to raise these matters in a more timely fashion. We

cannot allow a party to ``sit back and hope that a decision will be in

its favor and, when it isn't, to parry with an offer of more evidence.

No judging process in any branch of government could operate

efficiently or accurately if such a procedure were allowed.'' Colorado

Radio Corp. v. FCC, 118 F. 2d 24, 26 (D.C. Cir. 1941). Therefore, we

are not obligated to consider the new matters raised in CARE's filings.

However, we have examined the new matters raised by CARE, and we find

that CARE has failed to present any relevant evidence or law

demonstrating that we should not have granted the DTV applications.

3. CARE also requests that the Commission seek public comment on

its Application for Review. It is not the Commission's practice to

solicit additional public comment on rulemaking proceedings that have

been concluded and license applications that have been granted, and our

rules do not require us to do so. CARE provides no reasons why

additional public comment would be beneficial. Since there appears to

be little or no benefit to be achieved by seeking additional public

comment on the matters raised by CARE, and the present record is

adequate for the Commission to decide the matter, CARE's request that

we allow public comment on the Application for Review is denied.

Arguments Concerning RF Radiation

4. The results of the Commission studies of the Lookout Mountain

have been described in separate reports, dated November 12, 1998, and

January 4, 1999, respectively. Non-complying areas were identified as a

result of these studies, and recommendations were made for corrective

actions to ensure that the Lookout Mountain site was brought into

compliance with Commission exposure limits. CARE's claim that it has

supplied the information necessary to trigger an Environmental

Assessment (EA) of the site, as specified in the Commission's Rules [47

CFR 1.1307(c)], is now moot since the extensive Commission studies and

follow-up activities obviate the need for the preparation of an EA.

5. CARE claims that the Commission has violated the National

Environmental Policy Act (NEPA) of 1969 (Sections 5 and 6) and that the

Commission's guidelines are not sufficiently protective of human

health. The Commission adopted new RF exposure guidelines (ET Docket

93-62) following a one-year period for public comment with

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hundreds of pages of comments being filed with the Commission from

industry, trade associations, citizens and expert federal health and

safety agencies. See Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, 11 FCC Rcd 15123 (1997), 61 FR

41006, August 7, 1996. CARE's collateral attack on the Commission's RF

exposure guidelines is not timely and is dismissed.

6. CARE states that the Commission violated its rules implementing

NEPA by not requiring a draft EIS and final EIS for licensees on

Lookout Mountain. Under the Commission's rules, however, EIS's are only

prepared after the Commission reviews the Environmental Assessment (EA)

and determines that the proposal ``will have a significant effect upon

the environment,'' and such effect cannot be resolved by corrective

action. See 47 CFR 1.1308, 1.1314-1.1319. In the present situation

corrective actions have already been taken to bring the site into

compliance prior to even the preparation of an EA. Therefore, there is

no longer an environmental issue with respect to potential violation of

Commission RF exposure guidelines requiring the preparation of either

an EA or EIS.

7. CARE's allegations that alternative sites should be considered

as part of an environmental evaluation are untimely, and, in any case,

would only be relevant if a determination had been made that a

significant environmental effect, such as RF exposure, currently exists

at the site. Therefore, there is no need to consider alternative sites

because of a potential RF exposure problem. Furthermore, the Commission

is not inclined to become involved in application site selection, or

local zoning issues as long as federal requirements are met.

8. We find no merit to CARE's claim that area residents' fear of RF

radiation and concern over property values are environmental factors

that should be considered by the Commission. This claim is untimely.

9. CARE's claim that Lookout Mountain broadcasters should ``show

cause'' (Section 10), under Sec. 312(b) of the Communications Act, as

to, ``why they should not cease and desist from violating Sec. 1.1310

of the Commission's rules,'' is, again, a moot point. Since the

compliance problems have been remedied by radio licensees, there is no

longer a violation, and such an action is unnecessary.

10. CARE's claim that the Commission's actions, ``violate the

personal, property and constitutional rights of these residents,'' is

untimely, and, in any case, without merit. This claim is based on an

allegation that the Commission had failed (``without due process of

law'') to consider ``current relevant and credible scientific

evidence'' in making its decisions with respect to RF guideline

implementation and protection of human health.

11. CARE's claim that the Commission did not follow recommendations

of federal health and safety agencies in adopting its new RF exposure

guidelines is an improper collateral attack on the Commission's rules

and is wholly without merit. On the contrary, letters of support for

the Commission's guidelines have been received from senior officials of

the U.S. Environmental Protection Agency (EPA), the U.S. Food and Drug

Administration (FDA), the National Institute for Occupational Safety

and Health (NIOSH) and the Occupational Safety and Health

Administration (OSHA). These letters are included in the record of ET

Docket 93-62 and were extensively relied upon. EPA has also sent a

recent letter to the FCC addressing the situation at Lookout Mountain

and reaffirming its support for the Commission's RF guidelines. In

addition, the Commission continues to cooperate with these other

federal agencies and coordinate activities of mutual interest through

an on-going radiofrequency inter-agency working group, chaired by the

EPA.

12. CARE again claims that the Commission has not considered

scientific information on biological effects in developing its

guidelines. The Commission conducted the extensive proceeding in ET

Docket 93-62, reviewed comments from the public, industry, expert

organizations and federal health and safety agencies to determine which

scientifically-based guidelines to adopt for use in evaluating human

exposure, and, in fact, considered relevant scientific information on

biological effects in adopting its guidelines. It is important to point

out that biological ``effects'' are not the same as biological

``hazards.'' The exposure criteria recommended by both the National

Council on Radiation Protection and Measurements (NCRP) and the

Institute of Electrical and Electronics Engineers (IEEE), upon which

the Commission's guidelines are based, are themselves based on

thresholds for known biological effects that are potentially hazardous.

These existing RF standards and guidelines are designed to protect the

public from scientifically established levels for potentially harmful

effects linked to exposure to RF fields. In any event, as stated

previously, CARE's collateral attack on the Commission's RF guidelines

is untimely.

13. CARE claims that the Commission places an unfair burden on

citizens for monitoring compliance and cites the situation at Lookout

Mountain where Mr. Hislop and Dr. Larson performed their own

measurement surveys, the results of which contradicted some of the

earlier measurement data obtained there by consultants for LCG. This

isolated incident, in which Mr. Hislop and Dr. Larson discovered

previously undetected areas of non-compliance, does not prove that it

is Commission policy to expect citizens to routinely undertake such

tasks. In this case, it is our belief that the under-reporting of field

levels at certain locations was unintentional on the part of the

broadcast licensees and applicants. In a sworn affidavit, Mr. Robert

Weller, of Hammett and Edison, Inc., the engineering consulting firm

that advised LCG, has described the problems he experienced with

certain instrumentation used for his measurements.

14. If there is evidence of willful misrepresentation by a licensee

or applicant to the Commission with respect to RF compliance

certification or some other issue, the Commission has the authority to

levy forfeitures and/or take other punitive actions including license

revocation. We see no basis to conclude that this occurred with respect

to the Lookout Mountain site. Those areas which were recently found to

be out of compliance with respect to the new exposure guidelines

(implemented in October of 1997) were in compliance with the previous

guidelines in effect at the time the stations were last required to

certify compliance. Furthermore, the measurement problems experienced

and sworn to by Mr. Weller do not, without more evidence, support a

conclusion that the Lake Cedar Group or other broadcasters

intentionally misled the Commission with respect to RF exposure.

15. Finally, CARE alleges that computer modeling alone is not

sufficient to guarantee compliance. We fully agree that at complex

antenna sites such as Lookout Mountain computer modeling alone may not

be sufficient to evaluate compliance. In fact, this is the reason that

the Commission has required that actual measurements be made at the

site, and that is why the staff twice conducted its own measurement

studies. Also, as a condition of the grant of the LCG application,

future measurements must be taken to ensure compliance once the new

broadcast tower is constructed and operational. In addition, Jefferson

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County is considering its own monitoring requirements for the area, and

we understand and expect that a site coordination committee is being

established by the licensees located at Lookout Mountain. Therefore,

the implication that the Commission has based, or will base, decisions

on ``computer modeling alone'' is factually inaccurate.

Other New Matters

16. In its Application for Review and supplemental filings, CARE

raised additional objections to the LCG tower with respect to

blanketing interference, facilities sited within an officially-

designated wildlife preserve, siting of a facility listed in the

National Register of Historic Places, and claims of effects on an

endangered species. CARE's objections are untimely, and, in any case,

are without merit. While we are not obligated to do so under

Sec. 1.115(c) of the Rules, each of these matters were considered in

the Memorandum Opinion and Order.

17. It is our belief that CARE has provided no new evidence that

would warrant any further environmental analysis of the Lookout

Mountain site with respect to either compliance with the Commission's

RF exposure guidelines or electromagnetic interference or a

reconsideration of the conclusions expressed in the OET Letter.

Furthermore, the new matters raised by CARE do not demonstrate that the

OET Letter was in error as a matter of fact or law. Therefore, we deny

CARE's Application for Review.

18. Accordingly, it is ordered, that pursuant to the authority of

Sections 4(i) and (j) and 403 of the Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 154(j) and 403, and of the Commission's

Rules, 47 CFR 1.115, the Application for Review filed by Canyon Area

Residents for the Environment is denied and the letter ruling of

October 9, 1998, by the Chief of the Office of Engineering Technology

is affirmed.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 99-16562 Filed 6-29-99; 8:45 am]

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