**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. A0461656            |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 22, 2006 Released: February 22, 2006**

By the Deputy Chief, Spectrum and Competition Policy Division:

# Introduction

1.  In this Order, we grant an Application for Antenna Structure
    Registration (Application) filed by American Tower Corporation
    (American Tower), FCC File No. A0461656. Because the proposed
    construction falls within a category of potential significant
    environmental impact under Section 1.1307 of the Federal
    Communications Commission (Commission) rules,[^1] American Tower
    filed an environmental assessment (Environmental Assessment)[^2]
    with the Application, pursuant to Sections 1.1308 and 1.1311 of the
    Commission's rules.[^3] Several local residents petitioned to deny
    the Application,[^4] contending that the tower should not be
    constructed as proposed due to several asserted environmental
    impacts, and that the grant of the Application and construction of
    the tower would be inconsistent with the Commission's environmental
    rules[^5] implementing the National Environmental Policy Act of 1969
    (NEPA)[^6] and Section 106 of the National Historic Preservation Act
    of 1966 (NHPA).[^7]

2.  For the reasons set forth herein, we dismiss the petitioners'
    objections as improperly filed. Even considering the issues raised
    in the improperly filed pleadings, moreover, we find that the record
    supports a Finding of No Significant Impact to the Environment
    (FONSI). We therefore grant American Tower's Application.

# Background

3.  American Tower proposes to construct a 195-foot communications tower
    on Peters Point Road in Edisto Island, South Carolina.[^8] American
    Tower states that the tower is intended to accommodate the
    facilities of a Commission licensee and that it currently has a
    commitment from at least one wireless carrier to occupy space on the
    tower.[^9] Because the tower would be located in a flood plain,[^10]
    on August 17, 2005, American Tower filed with the Spectrum and
    Competition Policy Division (Division) of the Wireless
    Telecommunications Bureau (Bureau) an Application for Antenna
    Structure Registration accompanied by the Environmental
    Assessment.[^11] On August 26, 2005, the Application was placed on
    public notice, affording the general public an opportunity to
    comment on the content of the Environmental Assessment.[^12]

4.  On October 8, 2005, after the expiration of the 30-day comment
    period specified in the Public Notice, Rosalie Crouch filed by
    e-mail a self-styled petition to deny, contending the tower would be
    located in a flood plain, and hence should not be constructed.[^13]
    Other alternative sites are available, she continues, that would not
    be located in a flood plain.[^14] Jameely Moore, in an e-mailed
    petition dated October 17, 2005, agrees with Ms. Crouch, and also
    contends the proposed tower would pose a threat to the pristine
    marsh lands adjacent to the tower site.[^15] She adds that the tower
    would be a "mess" to maintain during a big storm, such as the one
    that recently struck the island.[^16] Also on October 17, 2005,
    Johnnie and Susan Walker filed by e-mail a petition to deny,
    agreeing with Ms. Crouch and Ms. Moore that the tower would be
    located in a flood plain and therefore should not be
    constructed.[^17] The Walkers also argue the tower would adversely
    impact several historic plantations in the vicinity of the
    tower,[^18] and contend that the tower would adversely impact the
    marshlands, a pristine estuary, in the vicinity of the tower.[^19]
    They also urge that the tower be constructed at another
    location.[^20]

5.  On November 18, 2005, American Tower filed an opposition to the
    petitions of Ms. Crouch, Ms. Moore, and the Walkers.[^21] In its
    opposition, American Tower asserts that the petitions are untimely,
    since they were filed more than thirty days following the placement
    of the Application on public notice.[^22] In addition, American
    Tower argues, the petitions should be dismissed because they were
    not properly served on American Tower and were not filed with the
    Secretary of the Commission, as required by the Commission's
    rules.[^23] Moreover, American Tower continues, the petitioners did
    not make a prima facie showing, supported by affidavit, that denying
    the American Tower application would be in the public interest.[^24]
    Finally, American Tower asserts that it mitigated the effects of
    locating the tower in a flood plain by securing a building permit
    from the local governing authority, consistent with the Commission's
    rules.[^25] Its Environmental Assessment, American Tower concludes,
    otherwise demonstrates the project would have no significant impact
    on the environment, and therefore the Application should be
    granted.[^26]

6.  Although advised by the Division staff that they could file replies,
    neither Ms. Crouch, Ms. Moore, nor the Walkers responded to the
    American Tower opposition. During the course of reviewing the
    Environmental Assessment, Division staff requested additional
    information from American Tower to assist it in determining whether
    the proposed construction would have a significant environmental
    effect.[^27] American Tower, thereafter, supplemented its
    Environmental Assessment and served copies of the documents on all
    parties.[^28]

#  Discussion

7.  American Tower initially argues that the petitions should not be
    considered due to procedural deficiencies. Petitions to deny an
    application, contesting an environmental assessment, must comply
    with the procedural requirements in Section 1.939 of the
    Commission's rules.[^29] Under Section 1.939, the petition to deny
    must be filed within thirty days following placement of the
    application on public notice.[^30] The petition must be filed
    electronically via the Universal Licensing System (ULS) or manually
    with the Office of the Secretary, and must be served upon the
    applicant.[^31] A petitioner must set out specific allegations of
    fact sufficient to make a prima facie case that grant of the
    application would not be in the public interest.[^32] Such
    allegations must be supported by affidavit of a person with personal
    knowledge of the facts alleged.[^33]

8.  Ms. Crouch, Ms. Moore, and the Walkers have failed to meet these
    requirements. First, the petitions were filed between 43 and 52 days
    after the Application was placed on public notice. Second, the
    petitions were initially filed by e-mail to a Commission staff
    member and were not served on American Tower.[^34] Third, although
    the facts alleged by the petitioners do raise potentially
    significant matters regarding the American Tower Environmental
    Assessment, the allegations are not supported by affidavits. It is
    important for the orderly processing of applications and petitions
    that parties adhere to the Commission's pleading practices outlined
    in Part 1 of the Commission's rules.[^35] Therefore, we dismiss Ms.
    Crouch's, Ms. Moore's, and the Walkers' petitions to deny as
    improperly filed in accordance with the Commission's rules.[^36]

9.  Our determination that the petitions were improperly filed does not,
    however, end our consideration of American Tower's Application and
    Environmental Assessment. Under the Commission's rules, an applicant
    to construct facilities must, in consultation with relevant expert
    agencies, determine whether the facility falls within any of the
    eight categories specified in the Commission's rules that may
    significantly affect the environment.[^37] Section 1.1308 of the
    Commission's rules requires applicants to prepare an environmental
    assessment for actions that may have a significant environmental
    impact under any of these categories.[^38] The Bureau or Commission
    conducts an independent review of the environmental assessment to
    determine whether the proposed construction would have a significant
    impact on the human environment.[^39] In performing this independent
    review, we consider the entire record, including all petitions and
    objections filed against the environmental assessment.

10. In this case, we find the proposed construction will have no
    significant environmental impact. American Tower filed an
    environmental assessment because it determined that the construction
    would be located in a flood plain. In its Environmental Assessment,
    American Tower addressed this potentially significant impact on the
    environment by including a building permit from the local government
    authority.[^40] Moreover, as American Tower notes in its opposition,
    the Federal Emergency Management Agency -- which oversees compliance
    with flood plain regulation -- indicated that it would not object to
    the project if supported by the local government.[^41] This evidence
    is sufficient to show that the construction will not have a
    significant impact on the flood plain. We further find, based on
    independent review of the Environmental Assessment, that the project
    will have no other significant environmental impact.

11. Although, as noted, we dismiss the petitions to deny as improperly
    filed, nothing in these pleadings changes our conclusions. With
    respect to the flood plain, petitioners argue that locating the
    tower at an alternate site would better mitigate the environmental
    impact of construction. American Tower is not required to consider
    alternative locations, however, because the site that it has
    proposed would not have a significant impact on the flood plain.
    Moreover, as American Tower notes, the other site identified by
    petitioners would also be located in a flood plain.[^42]

12. Petitioners also argue that the tower would have an adverse impact
    on historic properties[^43] and that it would pose a threat to
    nearby marshlands.[^44] American Tower contacted the South Carolina
    Department of Archives & History, which is the South Carolina State
    Historic Preservation Officer (the South Carolina SHPO), and the
    South Carolina SHPO recommended the project would not affect
    historic properties.[^45] We agree with this recommendation, and
    conclude American Tower has satisfied this element of its
    environmental review, consistent with the Commission's rules.
    American Tower has also documented the tower will not be located in
    a wetlands, wilderness area, or wildlife preserve.[^46] We therefore
    conclude that the proposed project will not significantly impact the
    adjacent marshlands as argued by petitioners.

13. Finally, petitioners raise other alleged environmental impacts from
    the proposed tower, including concerns about potential damage should
    a big storm strike the island. Under the Commission's rules, the
    Bureau responsible for processing an application shall require an
    environmental assessment to address a potentially significant
    environmental impact if it finds, upon petition, that said
    significant environmental impact may occur.[^47] Having reviewed in
    detail the other assertions raised by the petitioners, we deem them
    insubstantial. Accordingly, we find that the proposed construction
    will have no significant environmental impact.

# IV. CONCLUSION {#iv.-conclusion .unnumbered}

14. We dismiss Ms. Crouch's, Ms. Moore's, and the Walkers' objections as
    improperly filed. Nonetheless, we have considered the issues raised
    in these pleadings in evaluating the Environmental Assessment. Upon
    an independent review of the Environmental Assessment, and based on
    the entire administrative record, we conclude that the construction
    of the facility proposed by American Tower discussed herein will
    have no significant impact on the human environment[^48] within the
    meaning of NEPA and Section 1.1307 of the Commission's Rules.
    Accordingly, we grant American Tower's application.

# V. Ordering ClauseS {#v.-ordering-clauses .unnumbered}

15. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Sections 1.939(h) and 1.1313(a) of the Commission's rules, 47 C.F.R.
    §§ 1.939(h) and 1.1313(a), the Petitions to deny filed by Rosalie
    Crouch, Jameely Moore and Johnnie and Susan Walker ARE DISMISSED.

16. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), the
    regulations of the Council on Environmental Quality, 40 C.F.R.
    Sections 1501.3, 1508.9 and 1508.13, Section 106 of the National
    Historic Preservation Act, 16 U.S.C. § 470f, and Sections 1.1308 and
    1.1312 of the Commission's rules, 47 C.F.R. §§ 1.1308 and 1.1312,
    that the Division finds grant of the Application will have no
    significant impact on the environment.

17. IT IS FURTHER ORDERED, pursuant to Sections 1501.4(i) and 1506.6 of
    the regulations of the Council on Environmental Quality, 40 C.F.R.
    §§ 1501.4(i) and 1506.6, and Section 1.1308 of the Commission's
    rules, 47 C.F.R. § 1.1308, that applicant American Tower Corporation
    is to provide to the community to be served by this facility notice
    of the finding herein of no significant impact.

18. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 303(q) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and
    303(q), and Section 17.4 of the Commissions rules, 47 C.F.R. § 17.4,
    that the Application for Antenna Structure Registration, filed by
    American Tower Corporation, IS GRANTED.

19. This action is taken pursuant to delegated authority under Section
    0.331 of the Commission's rules, 47 C.F.R. § 0.331.

FEDERAL COMMUNICATIONS COMMISSION

Jeffrey S. Steinberg

Deputy Chief

Spectrum and Competition Policy Division

Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 1.1307.

[^2]: *See* Environmental Assessment, Edisto Island Site, Charleston
    County, SC, filed as an attachment to Application for Antenna
    Structure Registration of American Tower Corporation, file number
    A0461656 (August 17, 2005) (Environmental Assessment).

[^3]: 47 C.F.R. §§ 1.1308, 1.1311.

[^4]: *See* e-mail from Rosalie Crouch, Edisto Island resident, to
    Catherine W. Seidel, Acting Chief, Wireless Telecommunications
    Bureau (October 8, 2005) (Crouch Petition); e-mail from Jameely
    Moore, Edisto Island resident, to Catherine W. Seidel, Acting Chief,
    Wireless Telecommunications Bureau (October 17, 2005) (Moore
    Petition); and e-mail from Johnnie and Susan Walker, Edisto Island
    residents, to Catherine W. Seidel, Acting Chief, Wireless
    Telecommunications Bureau (October 17, 2005) (Walker Petition).

[^5]: 47 C.F.R. §§ 1.1301-1.1319.

[^6]: 42 U.S.C. §§ 4321-4395.

[^7]: 16 U.S.C. § 470f.

[^8]: Environmental Assessment at § 1.1.

[^9]: Letter from H. Anthony Lehv, Senior Vice President and Associate
    General Counsel, American Tower, to Frank Stilwell, Attorney, FCC
    (included in American Tower NEPA Review -- Supplemental Information,
    filed January 11, 2006).

[^10]: *See* 47 C.F.R. § 1.1307(a)(6).

[^11]: *See* Application.

[^12]: *See* *Public Notice*, Antenna Structure Registration Service
    Information, Report No. CWS-05-65 (rel. August 26, 2005).

[^13]: Crouch Petition.

[^14]: *Id.*

[^15]: Moore Petition.

[^16]: *Id.*

[^17]: Walker Petition at 2.

[^18]: *Id.*

[^19]: *Id.*

[^20]: *Id.*

[^21]: *See Consolidated Opposition of American Tower Corporation*,
    filed November 18, 2005 (Opposition).

[^22]: *Id.* at 2-3.

[^23]: *Id.* at 3-4.

[^24]: *Id.*

[^25]: *Id.* at 6, 8.

[^26]: *Id.* at 5-9.

[^27]: *See* 47 C.F.R. § 1.1308(b).

[^28]: *See* American Tower NEPA Review -- Supplemental Information
    (filed January 11, 2006); Letter from David A. Jermakian, President,
    Dynamic Environmental Associates, Inc., to Jenna Lamontagne,
    American Tower filed January 23, 2006).

[^29]: *See* 47 C.F.R. § 1.939.

[^30]: *Id.* § 1.939(a)(2).

[^31]: *Id.* § 1.939(b), (c).

[^32]: *Id.* § 1.939(d).

[^33]: *Id.*

[^34]: We note that these defects were later corrected after petitioners
    were contacted by Division staff. *See* Opposition at 2-3.

[^35]: *See In the Matter of County of Albemarle Informal Objections
    Against Application for Wireless Radio Station Authorization (FCC
    Form 601) with Environmental Assessment*, File No. 0000986878,
    Memorandum Opinion and Order, 18 FCC Rcd 10,647, 10,649 ¶ 8 (2003).

[^36]: Because we would grant American Tower's application even
    considering the petitioners' objections, see paras 11-13, *infra*,
    we need not consider whether, or under what circumstances, these
    pleadings could have been properly filed as informal objections.
    *See* 47 C.F.R. § 1.1313(b). We note the pleadings were
    characterized by the petitioners as petitions to deny, and that in
    substance they constitute arguments for denying American Tower's
    application.

[^37]: *See* 47 C.F.R. § 1.1307(a).

[^38]: *Id*. § 1.1308. In addition, the Bureau may require an
    environmental assessment, either on its own motion or in response to
    a petition, where it determines that an action not within one of the
    specified categories may have a significant environmental impact.
    *See* *id.* § 1.1307(c), (d).

[^39]: *Id*. If a Commission action will have a significant
    environmental impact, an Environmental Impact Statement must be
    prepared. *Id*. § 1.1305.

[^40]: Opposition at 6, 8; Environmental Assessment at § 3.6, Appendix
    IV.

[^41]: Opposition at 6; Environmental Assessment at § 3.6.

[^42]: Opposition at 7- 8.

[^43]: *See* 47 C.F.R. § 1.1307(a)(4).

[^44]: *Id*. § 1.1307(a)(7).

[^45]: *See* letter from Marta Matthews, Review and Compliance
    Coordinator, State Historic Preservation Office, to David Jermakian,
    President, Dynamic Environmental Associates, Inc. (August 6, 2004);
    Letter from Richard Sidebottom, Review and Compliance Coordinator,
    State Historic Preservation Office, to David Jermakian, President,
    Dynamic Environmental Associates, Inc. (January 28, 2005) (contained
    in American Tower NEPA Review -- Supplemental Information).

[^46]: Environmental Assessment at §§ 3.7, 3.1 and 3.2.

[^47]: 47 C.F.R. § 1.1307(c); *see also* 47 C.F.R. § 1.1307(d)
    (authority of Bureau to require environmental assessment on its own
    motion).

[^48]: *Id*. at § 1.1308(d).