**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 0000003067          |
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| Application of AT&T Wireless     | ) | File No. 0000002915          |
| PCS, Inc.,                       | * |                              |
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| Chicago MTA                      |   |                              |
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| Application of Sprintcom, Inc.   | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** July 20, 2000 **Released:** July 21, 2000

By the Deputy Chief, Commercial Wireless Division:

1.  In correspondence dated July 22, 1999, the Palos-Orland Conservation
    Committee ("POCC") filed a letter as a "motion ... to
    reconsider"[^1] a Memorandum Opinion and Order issued by the
    Enforcement and Consumer Information Division ("Enforcement
    Division") on June 23, 1999, that had denied environmental
    objections by POCC and others to the construction of a
    communications tower near a building eligible for listing in the
    National Register of Historic Places, the Yunker Schoolhouse, in
    Orland Township, Illinois.[^2] In the *Orland Park Order*, the
    Enforcement Division concluded that POCC's objections were without
    merit, because they had been thoroughly and correctly considered by
    the appropriate historic preservation authorities and because the
    wireless providers, AT&T Wireless PCS, Inc. ("AT&T") and Sprintcom,
    Inc., dba Sprint PCS ("Sprint"), had made reasonable efforts to
    explore alternatives to the proposed site.[^3] AT&T and Sprint filed
    a joint opposition to the POCC petition on August 30, 1999, stating
    that the POCC petition was procedurally deficient and should be
    dismissed.

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2.  We dismiss the POCC petition because it was not filed as required by
    Section 1.106 of the Commission's rules.[^4] The POCC petition,
    which was faxed to Commission staff and was not verified,[^5] was
    not filed electronically via the Commission's Universal Licensing
    System or manually with the Secretary within thirty days of the
    release of the *Orland Park Order* and therefore was not timely
    filed.[^6] In addition, it was not properly served on all parties to
    the proceeding.[^7]

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3.  While we dismiss the POCC petition for failure to comply with the
    Commission's procedural filing rules, we also conclude that nothing
    in the record warrants changing the Enforcement Division's
    conclusions. The POCC petition first questions the assertion by AT&T
    and Sprint that the Shell Oil Service Station site at 143rd & Wolf
    Road is not a viable alternative site for the proposed tower.[^8] In
    support of this argument, POCC offers a handwritten letter signed by
    Clare Sokolowski, in which she states that she is a representative
    of Shell Oil and that she is receptive to a tower at that
    location.[^9] In response, AT&T and Sprint proffer that the real
    estate department of Shell Oil in Houston was contacted during the
    search for sites and AT&T and Sprint were informed that Shell Oil
    was not interested in placing a tower on the Shell Oil station
    site.[^10] AT&T and Sprint also question the accuracy and relevance
    of Ms. Sokolowski's statement.[^11]

4.  We agree with the Enforcement Division that it is not necessary to
    resolve each dispute in the record over these issues. The
    Enforcement Division found that AT&T and Sprint considered and
    rejected eighteen alternative sites.[^12] AT&T and Sprint
    represented both to the Commission and the Illinois State Historic
    Preservation Officer ("SHPO") that these sites (including the Shell
    Oil service station) were not viable alternatives and the SHPO
    concurred with this determination.[^13] The assessment of
    alternatives, while important to the historic evaluation process,
    need not be exhaustive or exacting; only a reasonable choice of
    alternatives is required.[^14] Thus, based upon these facts and our
    review of the record, we agree with the Enforcement Division that
    AT&T and Sprint have reasonably considered alternative tower
    locations. In addition, we do not find the POCC petition or Ms.
    Sokolowski's letter persuasive with regard to the Shell Oil station
    site as a basis to reconsider the Enforcement Division's decision.

5.  We likewise reject POCC's argument that the proposed communications
    tower could have been located at the Szelag property,[^15] a new
    site that AT&T and Sprint state may be outside their search
    ring.[^16] As discussed above, AT&T and Sprint need not reject all
    possible tower locations, but instead, as the Enforcement Division
    found, they must only reasonably consider alternative sites.[^17]
    Moreover, it appears from the record that the identification of the
    Szelag property by POCC constitutes newly discovered information
    which may not serve as the basis for a petition for reconsideration
    because it could have been uncovered previously by POCC through
    ordinary diligence.[^18]

6.  Accordingly, it is ordered that, pursuant to Sections 4(i) and 405
    of the Communications Act (47 U.S.C. §§ 154(i) and 405), and
    Sections 0.131, 0.331, and 1.106 of the Commission's rules (47
    C.F.R. §§ 0.131, 0.331, and 1.106) the POCC petition in the
    above-captioned matter is dismissed.

FEDERAL COMMUNICATIONS COMMISSION

Jeffrey S. Steinberg, Deputy Chief

> Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: *See* Letter to Robert Cannon, Federal Communications Commission
    ("FCC"), from Roberta Krueger Rudolph, POCC, dated July 22, 1999
    ("POCC petition"); *see also* Letter to John Clark, FCC, from
    Roberta Krueger Rudolph, POCC, dated September 24, 1999.

[^2]: *See* Application of AT&T Wireless PCS Inc., Chicago MTA,
    Application of Sprintcom Inc. dba Sprint PCS, Chicago BTA,
    *Memorandum Opinion and Order*, 14 FCC Rcd 9489 (1999) ("*Orland
    Park Order*"). During the pendency of this case, environmental
    compliance functions within the Wireless Telecommunications Bureau
    were transferred from the Enforcement Division to the Commercial
    Wireless Division.

[^3]: *Orland Park Order*, 14 FCC Rcd at 9495, ¶ 9.

[^4]: *See* 47 C.F.R. § 1.106.

[^5]: *See* 47 C.F.R. § 1.52

[^6]: *See* Wireless Telecommunications Bureau Revises and Begins Phased
    Implementation of Its Unified Policy for Reviewing License
    Applications and Pleadings, *Public Notice*, 14 FCC Rcd 11,182,
    11,187-88 (Wireless Tel. Bur. 1999). *See* also 47 C.F.R. § 1.106.

[^7]: *See* 47 C.F.R. § 1.47(b). We note also that petitioner failed to
    file four copies of its pleading (47 C.F.R. § 1.51), and that it was
    not otherwise in proper form. *See* 47 C.F.R. § 1.49. POCC claims
    that the petition was faxed on June 22, 1999, but staff of the
    Enforcement Division did not receive a fax of the petition until
    August 5, 1999. AT&T and Sprint state that they did not receive a
    copy of the petition until August 8, 1999. Joint Opposition at 2.

[^8]: POCC petition at 1.

[^9]: *Id*. at Attachment 1, letter from Clare Sokolowski, Equilon
    Enterprises, to Ms. Rudolph, dated July 22, 1999.

[^10]: Joint Opposition at 3-4.

[^11]: *Id*.

[^12]: *Orland Park Order*, 14 FCC Rcd at 9495-96, ¶¶ 10, 12.

[^13]: *Id*.

[^14]: *See Druid Hills Civic Association v. Federal Highway
    Administration*, 772 F2d 700, 713 (11th Cir. 1985); *City of New
    Haven v. Chandler*, 446 F. Supp. 925, 933-934 (D. Conn. 1978).

[^15]: POCC petition at 2 and Attachment 3.

[^16]: Joint Opposition at 5.

[^17]: *Orland Park Order*, 14 FCC Rcd at 9496, ¶ 12.

[^18]: 47 C.F.R. § 1.106(a)(1) and (2). *See also* Joint Opposition at
    3-6.