[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Notices]
[Pages 35155-35157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16562]


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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

[[Page 35156]]

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

[[Page 35157]]

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]
BILLING CODE 6712-01-P