Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of              | *  | File No. 0000986878             |
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| County of Albemarle           | ** |                                 |
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| Informal Objections against   | *  |                                 |
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| Radio Station Authorization   | ** |                                 |
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| Environmental Assessment      | *  |                                 |
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MEMORANDUM OPINION AND ORDER

**Adopted**: May 27, 2003 **Released:** May 27, 2003

By the Deputy Chief, Commercial Wireless Division:

**I. INTRODUCTION**

1\. In this Order, we grant an Application for Wireless Radio Station
Authorization (application) filed by the County of Albemarle (Albemarle)
for a proposed 800 MHz public safety facility on Peter's Mountain,
Albemarle County, Virginia, FCC File No. 0000986878. Because the
proposed construction falls within a category of potential significant
environmental impact under Sec. 1.1307 of the Federal Communications
Commission (Commission) rules,[^1] Albemarle filed an Environmental
Assessment (EA) with the application, pursuant to Sections 1.1308 and
1.1311 of the Commission's rules.[^2] The National Trust for Historic
Preservation (Trust) and the Piedmont Environmental Council (PEC) sent
to the Deputy Chief of the Commercial Wireless Division (Division)
objections, both contending that the EA is insufficient to establish
that the proposed tower will have no significant impact on historic
properties, and therefore the grant of the Application and construction
of the tower would be inconsistent with the Commission's Environmental
rules[^3] implementing the National Environmental Policy Act of 1969
("NEPA")[^4] and Section 106 of the National Historic Preservation Act
of 1966 ("NHPA").[^5]

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

**II. BACKGROUND**

3\. On August 5, 2002, Albemarle filed its application for a license to
provide public safety communications service from an antenna mounted on
a 105-foot antenna structure to be located on Peter's Mountain in
Northeastern Albemarle County. Albemarle seeks to provide service on the
reserved band for Public Safety in the 800 MHz frequency band.

4\. Prior to filing its application, Albemarle, as required by the
Commission's rules, considered whether its proposed construction might
significantly affect the environment.[^6] The public and interested
parties were notified of the proposed application, and had the
opportunity to comment in public meetings.[^7] In addition, public
notices were published in a local newspaper.[^8] On February 25, 2002,
the Virginia State Historic Preservation Officer (VASHPO) advised
Albemarle and the Commission that the proposed antenna structure would
have an adverse effect on historic properties listed or eligible for
listing in the National Register of Historic Places (National Register).
Specifically, the VASHPO advised that Peter's Mountain is within the
boundaries of the Southwest Mountains Historic District, a historic
district listed in the National Register, and that historic properties
within that district would be adversely affected.

5\. In the fall of 2002, Albemarle, the Commission, VASHPO and several
consulting parties, including PEC,[^9] negotiated a Memorandum of
Agreement (MOA) under which Albemarle agreed to mitigate the adverse
effects of the proposed structure on historic properties in accordance
with Section 106 of the National Historic Preservation Act (NHPA) and
the rules of the Advisory Council on Historic Preservation (ACHP).[^10]
The Commission, VASHPO and Albemarle executed the MOA on September 11,
2002, October 7, 2002, and October 18, 2002, respectively. The
consulting parties were offered the opportunity to sign the MOA but
declined to do so.

6\. On November 26, 2002, Albemarle amended its application and filed
its EA. The EA was placed on public notice on December 4, 2002, as
accepted for filing.[^11] The Licensing and Technical Analysis Branch of
the Division reissued the public notice on December 11, 2002, to correct
a staff error.[^12] On January 10, 2003, the Trust filed its objection
with the Deputy Chief of the Division. PEC sent its comments by
facsimile to the Deputy Chief on January 10, 2003. On February 3, 2003,
Albemarle filed its Opposition. On February 11, 2003, the Trust filed
its Reply.

**III. DISCUSSION**

7\. Albemarle initially argues that the Trust's and PEC's pleadings
should not be considered due to procedural deficiencies. First,
Albemarle argues in its Opposition that the Trust and PEC filings should
not be treated as petitions to deny because they were filed more than 30
days after the initial public notice on December 4, 2002. The Trust
responds that its objection was timely filed because it was within 30
days after the Division issued its corrected public notice listing the
application as accepted for filing. Section 309(b) of the Communications
Act of 1934, as amended, provides that applications subject to that
Section shall not be granted earlier than thirty days following issuance
of public notice of their acceptance for filing.[^13] In this case, the
Licensing and Technical Analysis Branch placed Albemarle's application
on public notice twice, on December 4, 2002, and again on December 11,
2002. Under the circumstances, we find that correctly filed formal
objections within 30 days of the second public notice, i.e., by January
10, 2003, would have been timely.

8\. We agree however, with Albemarle's second procedural argument that
the objections were improperly filed as petitions to deny because they
were filed with the Deputy Chief instead of the Secretary's office, as
required by Sec. 1.939 of the Commission's rules. In the case of an
application to which Section 309(b) of the Communications Act applies,
formal objections based on environmental considerations shall be filed
as petitions to deny.[^14] Petitions to deny filed against an
application placed on public notice as accepted for filing must be filed
either electronically in the Universal Licensing System or manually with
the Secretary's office in accordance with Sec. 1.939 of the Commission's
rules.[^15] It is important for the orderly processing of applications
and petitions that parties adhere to the Commission's pleading practices
outlined in Part I of the Commission's rules. Therefore, we dismiss the
Trust's and PEC's objections for failure to file their pleadings as
petitions to deny in accordance with the Commission's rules.[^16]

9\. Our determination that the Trust's and PEC's pleadings were
improperly filed does not, however, end our consideration of Albemarle's
application and EA. 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.[^17] One of these categories is "\[f\]acilities
that may affect districts, sites, buildings, structures or objects,
significant in American history, architecture, archeology, engineering
or culture, that are listed, or are eligible for listing, in the
National Register of Historic Places."[^18] Section 1.1308 of the
Commission's rules requires applicants to prepare an environmental
assessment ("EA") for actions that may have a significant environmental
impact under any of these categories.[^19] The Bureau or Commission
conducts an independent review of the EA to determine whether the
proposed construction would have a significant impact on the human
environment.[^20] 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 that the proposed construction will have no
significant environmental impact. Albemarle filed an EA because it
determined, consistent with the NHPA, that the construction may affect
historic properties.[^21] As part of its EA, Albemarle filed an MOA that
included measures to mitigate the adverse effect on historic properties
under the NHPA. We find that, as mitigated, the construction will not
have a significant environmental impact on historic properties within
the meaning of NEPA. We further find, based on independent review of the
EA, that the project will have no other significant environmental
impact.

11\. Although, as noted above, we dismiss PEC's and the Trust's
objections as improperly filed, nothing in these pleadings changes our
conclusions. First, both PEC and the Trust assert that the EA does not
adequately depict the visual appearance of the proposed tower, including
the location and appearance of antennas and other equipment to be
located on the tower. As Albemarle notes, however, schedules D and H
attached to the EA specify the size of the tower and antennas, with a
site area photograph with digital representation of the antennas.[^22]
We agree with Albemarle that the application, EA and MOA fully describe
the visual effects of the proposed tower.

12\. PEC and the Trust also believe further mitigation is necessary
before the tower is built. Specifically, PEC and the Trust believe that
the tree buffer specified in the MOA is insufficient to shield the
antenna structure from view, and PEC suggests that Albemarle obtain the
rights to maintain a tree buffer on the adjoining property. Nothing in
these comments persuades us that the proposed tree buffer, agreed to by
the VASHPO in the MOA, is insufficient mitigation. Moreover, the
Commission does not have any jurisdiction over adjoining property
owners. In addition, the Trust asks the Commission to restrict the
number of dishes and antennas that can be added to the tower. However,
the MOA already requires that Albemarle notify the SHPO and consulting
parties and provide them with the opportunity to comment if Albemarle
proposes to add additional equipment to the tower site.[^23]

13\. In addition to measures directly related to the effect of
Albemarle's proposed facility, PEC and the Trust also request action to
mitigate the visual effect caused by an AT&T microwave facility that is
also located on Peter's Mountain. However, Albemarle has no control over
the AT&T facility, and these comments are beyond the scope of this
proceeding. Finally, PEC and the Trust request that the Commission
impose a license condition that, in the event any future application is
filed for an additional tower site to enhance Albemarle's 800 MHz public
safety radio system, the applicant will be required to conduct a formal
technical reevaluation of the need for the Peter's Mountain Tower and
due consideration will be given to its removal. We decline to impose any
condition based on this speculative argument. We also note that the MOA
includes a provision requiring Albemarle to dismantle the structure
within six months after its abandonment.

**IV. CONCLUSION**

14\. We dismiss PEC's and the Trust's objections as improperly filed.
Nonetheless, we have considered the issues raised in these pleadings in
evaluating the EA. Upon an independent review of the EA, and based on
the entire administrative record, we conclude that the construction and
operation of the facility proposed by Albemarle discussed herein, as
provided in the Memorandum of Agreement, will have no significant effect
on the human environment[^24] within the meaning of NEPA and Section
1.1307 of the Commission's Rules, nor an unmitigated adverse affect
pursuant to NHPA. We further conclude that allowing Albemarle to
construct a tower needed for public safety radio communications on
Peter's Mountain, Albemarle County, Virginia, would serve the public
interest, convenience, and necessity. Accordingly, we grant Albemarle's
application.

**V. ORDERING CLAUSES**

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(b) and 1.1313(a) of the Commission's Rules, 47 C.F.R. §§ 1.939(b)
and 1.1313(a), the Objection and Comments filed by the National Trust
for Historic Preservation and the Piedmont Environmental Council 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. §§
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 4(i) and 309(a) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 309(a),
and Section 90.149 of the Commission\'s rules, 47 C.F.R. § 90.149, that
the application for Wireless Radio Station Authorization, filed by the
County of Albemarle, IS HEREBY GRANTED.

18\. 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 Albemarle County is to provide to the
community to be served by this facility notice of the finding herein of
no significant impact.

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, Commercial Wireless Division

Wireless Telecommunications Bureau

![](media/image1.wmf){width="6.944444444444445e-4in"
height="6.944444444444445e-4in"}

[^1]: 47 C.F.R. § 1.1307.

[^2]: 47 C.F.R. §§ 1.1308, 1.1311.

[^3]: 47 C.F.R. §§ 1.1301--1.1319.

[^4]: 42 U.S.C. §§ 4321-4395 (1997).

[^5]: 16 U.S.C. § 470f.

[^6]: *See* 47 C.F.R. § 1.1307(a).

[^7]: An informal public informational meeting was held on April 16,
    2001, at Grace Episcopal Church in Albemarle County. The Albemarle
    County Board of Supervisors and Planning Commission held public
    meetings on November 15, 2001, November 27, 2001, December 18, 2001,
    and January 9, 2002. In addition, the Board of Supervisors met with
    the County and representatives of the PEC on November 27, 2001.
    *See* EA, exhibit c, p.1.

[^8]: Public Notice, *The Daily Progress* newspaper, November and
    December 2001.

[^9]: In addition to PEC, three local residents particpated as
    consulting parties in the Section 106 process. The Trust did not
    participate as a consulting party.

[^10]: Mitigation includes, among other things: 1) Antennas and other
    equipment shall be limited to those needed by Albemarle to provide
    public safety radio service; 2) the top of the antenna structure
    shall not exceed 105 feet above ground level, excluding two whip
    antennas and grounding rods; 3) guy wires shall not be permitted; 4)
    the structure and appurtenances shall be painted dark brown; 5)
    outdoor lighting shall be shielded and limited to periods of
    maintenance, unless otherwise required by a government agency; 6)
    Albemarle shall not remove existing trees within 200 feet of the
    structure; and 7) trees shall be planted within a 200-foot buffer of
    the structure.

[^11]: *Public Notice,* rel. December 4, 2002, Report No. 1352.

[^12]: *Public Notice,* rel. December 11, 2002, Report No. 1358.

[^13]: 47 U.S.C. § 309(b)*; see also* 47 C.F.R. § 1.945(b) (applications
    subject to Section 309(b) and not subject to competitive biding will
    not be granted prior to the thirty-first day following public
    notice).

[^14]: *See* 47 C.F.R. § 1.1313(a). We note that PEC's letter is styled
    as "comments" rather than an "objection" or "petition to deny."
    Nonetheless, in substance it constitutes an objection to Albemarle's
    application, and we therefore treat it as such.

[^15]: *See* 47 C.F.R. § 1.939(b).

[^16]: Because we dismiss the objections for improper filing, it is not
    necessary to determine whether the parties demonstrate standing to
    file their objections. *See Friends of the Earth*, 17 FCC Rcd.
    201(CWD 2002), *app. for review pending.* In addition, because we
    would grant Albemarle's application even considering PEC's and the
    Trust's 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).

[^17]: *See* 47 C.F.R. § 1.1307(a).

[^18]: 47 C.F.R. § 1.1307(a)(4). The relevant expert agency with respect
    to this criterion is the appropriate State Historic Preservation
    Officer (SHPO) or Tribal Historic Preservation Officer (THPO). *See
    id.; see also* 36 C.F.R. § 800.5(a); Memorandum from John Fowler,
    Executive Director, Advisory Council on Historic Preservation to the
    Federal Communications Commission, State Historic Preservation
    Officers, Tribal Historic Preservation Officers, dated September 21,
    2000.

[^19]: 47 C.F.R. § 1.1308. In addition, the Bureau may require an EA,
    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* 47 C.F.R.
    §1.1307(c), (d).

[^20]: *Id*. If a Commission action will have a significant
    environmental impact, an Environmental Impact Statement must be
    prepared. 47 C.F.R. § 1.1305.

[^21]: *See* 47 C.F.R. §1.1307(a)(4).

[^22]: *See* letter from Robert M. Gurss to Marlene H. Dortch, FCC
    Secretary, dated February 3, 2003.

[^23]: *See* Memorandum of Agreement p. 2.

[^24]: *See* 47 C.F.R. §1.1308(d).