Before the

Federal Communications Commission

Washington, D.C. 20554

+-------------------------------+----+---------------------------------+
| In the Matter of              | *  | File Nos. A0160814 *et al.*     |
|                               | *) |                                 |
| Friends of the Earth, Inc.    | ** |                                 |
| and Forest                    |    |                                 |
|                               | *  |                                 |
| Conservation Council, Inc.    | *) |                                 |
|                               | ** |                                 |
| Various Objections and        |    |                                 |
| Petitions to Deny against     | *  |                                 |
| Applications to Register      | *) |                                 |
| Antenna Structures (FCC Form  | ** |                                 |
| 854) with Environmental       |    |                                 |
| Assessments                   | *  |                                 |
|                               | *) |                                 |
|                               | ** |                                 |
|                               |    |                                 |
|                               | *  |                                 |
|                               | *) |                                 |
|                               | ** |                                 |
|                               |    |                                 |
|                               | *  |                                 |
|                               | *) |                                 |
|                               | ** |                                 |
|                               |    |                                 |
|                               | *  |                                 |
|                               | *) |                                 |
|                               | ** |                                 |
|                               |    |                                 |
|                               | *  |                                 |
|                               | *) |                                 |
|                               | ** |                                 |
|                               |    |                                 |
|                               | *  |                                 |
|                               | *) |                                 |
|                               | ** |                                 |
+-------------------------------+----+---------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: November 4, 2003 Released: November 10, 2003**

By the Commission:  Commissioner Copps issuing a statement.

 

1\. The Commission has before it an Application for Review, filed
jointly on January 30, 2002, by Forest Conservation Council and Friends
of the Earth (Forest/FoE).[^1] Forest/FoE seek review of a Memorandum
Opinion and Order (Order)[^2] by the Commercial Wireless Division
(Division) of the Wireless Telecommunications Bureau, dismissing
Forest/FoE\'s petitions to deny (Petitions) against twenty-nine
Applications to Register Antenna Structures on FCC Form 854
(Applications). Forest/FoE argued that the Applications should be denied
because the environmental assessments (EAs) attached to the applications
did not support a Finding of No Significant Impact (FONSI) under the
National Environmental Policy Act of 1969[^3] and the Commission's
rules.[^4] The Division dismissed the petitions to deny (Petitions)
because Forest/FoE failed to demonstrate standing. Specifically, the
Division found that Forest/FoE had not alleged sufficient facts to
demonstrate that the proposed antenna structures would cause Forest/FoE
to suffer an injury, and that in light of the hundreds of EAs received
by the Commission each year, efficient conduct of the Commission's
business requires that the Commission limit its attention to petitions
that make specific allegations of harm to the petitioners.

2\. Forest/FoE present no arguments in their Application for Review that
would lead us to change the Division's Order. For the most part,
Forest/FoE merely repeat arguments that were addressed and

rejected by the Division. We agree with the Division that given the lack
of specificity in the Petitions and the failure to show a nexus to any
injury, the Petitions were appropriately dismissed.

3\. Forest/FoE also argue that their Petitions should have been accepted
under the doctrine of associational standing.[^5] Forest/FoE incorrectly
applies the doctrine of associational standing because the relief they
request requires an individual member to show how the proposed antenna
structure would directly or indirectly injure the individual.[^6] The
Commission requires that associations submit affidavits from local
residents or competitors to meet the party in interest threshold to
establish standing.[^7] In each one of their petitions, Forest/FoE
failed to provide a single affidavit or letter from a local resident
residing in or who visits the area where one of the proposed antenna
structures would be located.[^8] We therefore affirm the Division's
decision for the reasons stated therein.

4\. ACCORDINGLY, IT IS ORDERED, pursuant to Section 5(c)(5) of the
Communications Act, as amended, 47 U.S.C. § 155(c)(5), and Section
1.115(g) of the Commission\'s rules, 47 C.F.R. § 1.115(g), that the
Application for Review filed by Forest Conservation Council and Friends
of the Earth IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

*RE: Forest Conservation Council and Friends of the Earth (Application
for Review).*

Adherence to Commission precedent on matters of standing results in my
approving this item. I write separately to note that the Commission
today does not find that the Forest Conservation Council and Friends of
the Earth (FC/FoE) Petition has substantive flaws. We find instead that
FC/FoE: (1) did not make the showings we need to determine that they are
interested parties; and (2) that they have not alleged injury with
enough specificity.

This does not mean that an environmental group will always lack standing
in these cases. A petitioner will be deemed to have standing so long as
a sufficient showing of both injury and causation is made. While the
concept of injury is fairly broad, in the instant case FC/FoE's claims
do not provide a sufficiently specific claim of injury. A future
petitioner, for example a bird watcher who lives or visits the area of a
proposed tower, could assert harm if birds were killed. This person
could begin to meet our requirements by filing a complaint alleging that
there would be bird kills at the proposed site if the proposed tower was
built. The injury prong of our test might also be met if, for example,
the petitioner claims that his bird watching would therefore be
detrimentally affected in the area where the proposed tower would be
built. In addition, the petitioner would have to provide some evidence
of causation. The petitioner would have to show, for example, a direct
link between the individual antenna structures and bird kills. This
could be done if the petitioner demonstrates that bird kills resulted
when similar existing towers were built in other areas similar to the
proposed site. The petitioner would not, of course, have to show that
bird kills occurred in the exact spot proposed for the new tower, as the
new tower would not yet be built. But the need for specific allegations
is particularly great in this context, because, as explained in the
recent *Notice of Inquiry*, the Commission will consider the general
scientific evidence on causation to be uncertain until additional
evidence is gathered in the *NOI* process.

An environmental association, in addition to the individual citizen
described above, could have standing in a future case, as well. The
association similarly would have to assert harm caused by the proposed
tower. For example, the association could assert harm in the form of
loss of the aesthetic benefits of watching birds if birds were killed.
The association would have to demonstrate that some of its members live
near or visit the area near the tower (with affidavits), and allege that
specific features of the tower, such as proximity to migratory bird
paths, height, and lighting, would contribute to bird deaths.

I hope that the Commission's ongoing NOI on this issue will relieve some
of the burden currently placed on individual citizens in providing us
with detailed scientific information in these matters. These are serious
matters which merit close Commission attention.

[^1]: *See* Application for Review, filed by Forest/FoE on Jan. 30,
    2002. *See* *also* Oppositions to the Application for Review, filed
    Feb. 19, 2002, by American Tower Corporation and Louisiana Unwired
    LLC, Reply to the Opposition to the Application for Review, filed
    Feb. 26, 2002, by Forest/FoE.

[^2]: *See* In the Matter of Forest Conservation Council and Friends of
    the Earth, *Memorandum Opinion and Order*, 17 FCC Rcd. 201 (WTB/CWD
    2002).

[^3]: 42 U.S.C. § 4321.

[^4]: 47 C.F.R. § 1.1301-1.1319.

[^5]: *See* *Hunt v. Washington State Apple Advertising Commission*, 432
    U.S. 333, 343 (1977).

[^6]: *Id*.

[^7]: 7 *See* In Re Application of KGET(TV), Inc. for Renewal of License
    of Station KGET(TV), Bakersfield, CA, *Memorandum Opinion and
    Order*, 11 FCC Rcd. 4168, 4169 (1996) and *Eagle Radio, Inc*., 9 FCC
    Rcd. 836, 839 (1994).

[^8]: *See* *Order* at 204-205.