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In Re Objections by CARROLL COUNTY TRAILS ASSOCIATION, FINKSBURG, MD.

To Construction of Microwave Tower by American Telephone & Telegraph Co.

 

FEDERAL COMMUNICATIONS COMMISSION

 

38 F.C.C.2d 1013

 

RELEASE-NUMBER: FCC 72-1121

 

December 13, 1972

 


OPINION:

 

 [*1013]  Reference: American Telephone and Telegraph Co.; File No. 5843 -- C1 -- P -- 72, Finksburg, Md.

 

Mr. RONALD A. MILHORN, President, Carroll County Trails Association, 2 Morgan Court, Finksburg, Md. 21048

DEAR MR. MILHORN: This is in response to your letter of May 9, 1972 (and a similar letter from Mr. Richard C. Schwartz) objecting, on behalf of the Carroll County Trails Association, to the construction of a 350 foot microwave tower as proposed by AT&T in the above referenced application.

You contend that the tower would be an eyesore in the middle of an area that is "supposedly primarily residential", adversely affecting the character of the area and the value of your homes.  You also express concern that the microwave facilities would interfere with television and radio reception, constitute an "attractive nuisance" to children, and possibly cause radiation hazards.  In response, AT&T makes the following comments: (a) in 1966 AT&T received zoning approval for the construction of underground facilities at this site after a public hearing during which the Planning and Zoning Commission was advised that a tower might be required in the future (although this latter point is disputed by you); (b) the construction of the underground building was generally well received in the community and AT&T permitted use of a portion of its access road to facilitate the subsequent development of the subdivision; and (c) in July, 1971 approval for the tower was received from the Planning and Zoning Commission after a public hearing (although your association may have been unaware of the hearing at the time).

The proposed Finksburg tower is adjacent to U.S. Route 140, a four-lane divided highway, in an area zoned business general, and located on a 19.76 acre tract which is adjacent to your development of about 80 completed homes.  We do not anticipate that it will interfere with reception of radio or television signals in your community; nor do we believe that it would constitute any radiation hazard.  [10 mW/cm2 is the maximum permissible exposure level generally accepted in this  [*1014]  country.  * Since these transmitters are low in power, this exposure level would not be approached even immediately in front of the antennas, much less at ground level.] As to being an "attractive nuisance", we understand that the tower will be appropriately fenced to protect children or others from any danger. 

* This standard has been adopted by the Occupational Safety and Health Administration, Department of Labor (see 17 CFR 1910.97) and by the Departments of the Army, Navy, and Air Force.

Accordingly, it appears that the only practical effect that the tower would have on the environment would concern the esthetic senses.  While the tower would be in plain view of the majority of homes in your development, it would not likely be particularly visible by many other residents of the area due to trees and rolling terrain.  We further note that there appear to be no public parks or significant historical sites in the area.

In considering the esthetic aspects of environmental matters we believe the Commission must, to a significant extent, evaluate the impact of the proposed construction in relation to national or widespread public interests, and not as a body for the appeal of local zoning decisions concerning only a very localized interest.  Therefore, in consideration of this and the fact that no adverse effect on air, water or land is involved, we conclude that the proposed microwave station would not have a significant environmental impact.

Though the environmental impact of the project is not viewed as significant within the meaning of the National Environmental Policy Act, the Commission's staff nevertheless requested AT&T to prepare a detailed environmental report of the type specified by Section 1.1317 of the proposed rules (36 FCC 2d 108). In that report, which was filed on August 3, 1972, AT&T outlined four alternatives to the construction of the proposed tower at Finksburg ranging from the construction of a new L4 cable between Monrovia (near Frederick, Maryland) and Finksburg to three other microwave options.  The cable option would require a 35 foot wide clearing over farmland, timberland and streams involving approximately 150 property owners and cost some $4.3 million.  Each of the microwave alternatives would cost more than the estimated $1.7 million for the instant proposal and would require additional radio facilities over other paths which would involve the construction of more towers than now proposed, either currently or in the near future.  In your letter of September 13, you recognize the potential problems caused by the erection of additional towers that would be necessitated under the other radio route options, and you urge the Commission to require AT&T to employ the cable option.

In addition to reviewing the various letters and reports filed, the Commission staff has visited the site and had lengthy discussions with AT&T concerning the need for these facilities and possible other alternatives.  After evaluation of all information before us, we conclude that new transmission facilities are required to interconnect the Finksburg facility, which is a major junction for the Baltimore metropolitan area, during the conversion of the Boston-Miami coaxial cable from L3 to L5 operation (90,000 voice circuit capacity).  Such facilities would also be used to handle the projected increase in long distance traffic into and out of the Baltimore area.  AT&T contends that the  [*1015]  deferral of service date beyond April 1, 1973 will cause an acute shortage of circuits on these routes.  Of the alternatives for interconnecting Finksburg, it appears that the proposal before us is the most reasonable.  The cable would prove much more costly and have substantially more environmental impact due to land clearing requirements.  The other microwave radio alternatives would likewise be more expensive and actually increase the number of towers required.

In view of the foregoing, your objections are hereby denied and the referenced application is granted.

Commissioner Johnson dissenting and issuing a statement.

 

BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.


DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

Section 102(2)(c) of the National Environmental Policy Act (NEPA), 42 USC   4332(2)(c), requires that prior to approving a major project which will have a significant impact upon the environment, this and other federal agencies must prepare a detailed statement on its environmental effects.  Today the Federal Communications Commission reaches the rather startling conclusion that AT&T's proposed construction of a 350 foot microwave tower in the populated town of Finksburg, Maryland, will not have a significant impact upon the environment.  As a result, the majority concludes that the project may be approved without the impact statement envisioned by   102(2)(c) of NEPA.

In my opinion, the construction of a 350 foot tower in a residential area has the very "significant impact upon the quality of the human environment" which does demand that we at least prepare an environmental impact statement.  I believe the Act requires that we consider the economic and environmental costs and benefits involved before deciding whether to approve this project.

In Goosehollow Foothills League v. Romney, 334 F. Supp. 877 (D. Ore. 1971) the court reversed the department of Housing and Urban Development's decision that the construction of a 16 story high-rise building in the city of Portland, Oregon, would not have a significant environmental impact.  The court noted that the controversial nature of the proposed project, and the likelihood that the building would obscure the view for many citizens, were factors which indicated that the project's impact upon the human environment would be significant.  See also Hanly v. Mitchell, 460 F. 2d 640 (2nd Cir. 1972), in which the Second Circuit explained that NEPA "must be construed to include protection of the quality of life for city residents." Id. at 647.

In the instant case, the majority has not considered whether, and to what extent, ATT's controversial tower will affect the quality of the human environment.  Instead, the majority prefers to avoid what it terms "the long involved procedure of the detailed environmental impact statement." As a result, the majority reaches the curious conclusion that no microwave tower can ever have a significant environmental impact unless it is constructed in or near areas of special scenic, historic or recreational significance.  I agree with my colleagues' assessment that such an interpretation might make this agency's work less difficult.   [*1016]  But such a conclusion runs contrary not only to the NEPA's direct commands, but also to the notion -- which underlies the Act -- that federal agencies must accept the burden of considering the environmental impact of their decisions.  See, generally, Note, Evolving Judicial Standards under NEPA, 81 Yale L.J. 1592 (1972).

The majority relies also upon AT&T's "environmental report" -- which AT&T prepared at our request -- wherein AT&T concludes that its proposal is the least expensive and most efficient means of achieving the desired result.  To the extent the majority relies upon this incredibly self-serving document as a basis for today's decision, that reliance is totally misplaced.  See Calvert Cliffs Coordinating Comm. v. AEC, 449 F. 2d 1109 (D.C. Cir. 1971); Goosehollow Foothills League v. Romney, supra. Those cases make clear that the only institution which is qualified under the Act to decide whether an impact statement is necessary, is the agency "charged with overall responsibility for the proposed federal action." Although larger than all states, and most nation's of the world, AT&T has not yet been accorded the official status of a federal agency.  I believe it is the FCC which must make the environmental impact study in this case.  That it has failed to do.  I dissent.


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