$// MO&O, County of Leelanau, MI, FCC 94-282//$ 
                                        
                                RECORD ONLY

                                Before the
                    Federal Communications Commission 
                         Washington, D.C. 20554
                                                            FCC 94-282

In the Matter of                    )
                                    )
County of Leelanau, Michigan        )
                                    )
                                    ) File Nos.  267839, 269291, 269292,       
                                    )            273392, 790529, and  790530   
                                    )  
Applications For Licenses in the    )
Private Land Mobile and Operational )
Fixed Microwave Radio Services)

                    MEMORANDUM OPINION AND ORDER

     Adopted:November 4, 1994             Released:November 4, 1994

By the Commission:

      1.  The Commission has before it an Application for Review filed jointly
by the Citizens for Existing Towers (CET), Michigan Audubon Society (MAS),
National Audubon Society (NAS), and the National Parks and Conservation
Association (NPCA) (hereinafter collectively referred to as "CET") on January 21,
1994:  an Opposition to the Application for Review filed by the County of
Leelanau, Michigan (Leelanau County) on February 7, 1994;  a Reply to the
Opposition to the Application for Review filed by CET on February 17, 1994;  a
Motion to Expedite Review filed by Leelanau County on June 29, 1994;  a Response
to the Motion to Expedite filed by CET on July 8, 1994; and a Reply to the
Response to the Motion to Expedite filed by Leelanau County on July 14, 1994. 

      2.  On December 21, 1993, the Private Radio Bureau (Bureau) issued (without
a written decision) conditional permits and granted Leelanau County's six land
mobile and microwave applications to update its public safety system.  The
proposed public safety system will consist of five existing County operated
towers and the construction of a new tower at the Jurica site, which will house
the radio transmitting and receiving antennae.  CET opposes the construction of
the Jurica tower on environmental grounds.  Specifically, CET contends that the
Jurica tower will be located in a migratory bird corridor and will result in the
"taking" of migratory birds in violation of the Migratory Bird Treaty Act, 16
U.S.C. Section 703.  Additionally, CET asserts that the Jurica tower will
adversely affect the aesthetic nature of the nearby national park system,
Sleeping Bear Dunes National Lakeshore (National Lakeshore).   Finally, CET
maintains that the Bureau failed to consider alternative sites and failed to
issue a Finding of No Significant Impact, in violation of the requirements of the
National Environment Policy Act (NEPA) and the Commission's rules. 

      3.  We note that prior to issuing Leelanau County's licenses, the Bureau
required Leelanau County to prepare an Environmental Assessment, and supplements
thereto, and reviewed the opinions of expert agencies such as the United States
Fish and Wildlife Service (USFWS) and the United States Forest Service, as well
as CET's submissions, regarding the impact of the Jurica tower on threatened,
endangered species and migratory birds, as well as the nearby National Lakeshore. 
Implicit in the Bureau's grant of the licenses was its determination that
Leelanau County's proposed public safety system would not likely have a
significant impact on the environment.  Based on our review of the record, we
affirm the Bureau's grant of conditional licenses, but as discussed below impose
several additional conditions.  We further explicitly find that the action will
not have a significant environmental impact, and thereby correct the technical
defect pointed out by CET.   

             Need for an Updated Public Safety Communications System
                                  
      4.  Leelanau County had sought authorization to update its existing public
safety communications system, which utilizes eleven multiple tower sites and
relies upon a low-band system with repeaters connected by leased telephone
circuits and which has proven to be unreliable and expensive to operate.  
Leelanau County maintains that its existing system is no longer suitable because
of coverage problems, and has recited a litany of critical safety problems that
exemplify and demonstrate its need for an improved, effective public
communications system.  Various public safety groups, such as the Leelanau
County's Sheriff Department, the Leelanau County Office of Emergency Management,
the Lake Leelanau Volunteer Fire Department, the Northport Emergency Medical
Services, the Glen Arbor Township Fire Rescue and the Cedar Fire Department, all
have submitted comments supporting Leelanau County's proposal, recounting the
daily crisis and utter chaos and emphasizing the dramatic need for an updated
public safety communications system.   

      5.  For example, the Northport Emergency Medical Services states that the
current low band system suffers frequent radio failures and that dead spots are
scattered throughout the county.  Indeed, it points out that due to the extensive
hills and valleys in Leelanau Township, there are several areas where the rescue
and fire units cannot contact the base station.  Likewise, the Glen Arbor
Township Fire Rescue notes that reception in its area is nonexistent, with three
firepersons and one rescue person unable to receive any calls.  The Leelanau
County Office of Emergency Management states that major fires have occurred where
numerous fire departments were involved, but were unable to communicate among
themselves.  The Lake Leelanau Volunteer Fire Department cites to several serious
problems that have been experienced by paging fire or rescue personnel.  The
Cedar Fire Department refers to the many situations where public safety
communications have failed due to storms, power outages and other causes, at
times when such communications were needed most.  The Cedar Fire Department also
complains that during emergencies, there is often interference with excess radio
traffic as the four counties attempt to share the frequency.  

      6.   Leelanau County's proposed system would remedy the current problems
by providing  excellent county-wide mobile and portable coverage that could be
used as a collection point for single channel radio frequency links for receivers
and fire transmitters located elsewhere in the county.  The main feature of the
proposed system is the ability to use multiplexed microwave radios and link all
of the system back to the central dispatch site at Jurica.  The proposed 480 foot
steel guyed Jurica tower will house radio transmitting and receiving antennae,
and will be designed to hold a variety of communications antennae that could be
used in the future to support other county-wide mobile systems such as road
commission and local government communications.  The proposed system requires
line-of-site paths for radio frequency links from other subordinate sites around
Leelanau County and a strong microwave path from the central Jurica site to the
Leelanau County Jail in Leland, Michigan.

                Effect on Endangered Species and Migratory Birds

         7.   Section 7 of the Endangered Species Act of 1973, 16 U.S.C. Section
1531, requires agencies to consult with the USFWS when proposals may jeopardize
threatened or endangered species.  Pursuant to the Act and the Commission's own
environmental regulations, the Bureau initiated formal consultation with the
USFWS to assess the effects of the Jurica tower on the Piping Plover, the Bald
Eagle and the Peregrine Falcon, three species identified by CET as federally
listed threatened or endangered species that are in the area.   As part of the
consultation process, and at the recommendation of the USFWS, Leelanau County
submitted extensive data on the effects of towers on the three designated
species, as well as migratory birds generally, since the Jurica site is located
within a migratory bird corridor.  The USFWS, fully apprised of the data
collected, concluded "that the proposed Commission licensing action is not likely
to adversely affect the piping plover, bald eagle, or peregrine falcon," noting
"that the probability of collision by these three federally listed species with
the proposed tower would be insignificant," and terminating consultation.  The
Bureau conditioned Leelanau County's authorization by requiring the County to
monitor and report the loss of any threatened or endangered species, as
recommended by the USFWS.  The USFWS, however, did not reach any explicit finding
with respect to the effect of the tower on migratory birds. CET raises no
objections to the USFWS's conclusions, and recommended conditions, concerning the
threatened and endangered species.  

      8.  The issue thus becomes whether the Jurica tower will significantly
affect the migratory bird population.  CET contends that the Jurica tower will
result in an annual estimated loss of 2,500 migratory birds based on a 1979 study
by Richard C. Banks, an abstract of which was provided by Leelanau County.  CET
contends that such loss constitutes a taking under the Migratory Bird Treaty Act
(MBTA), 16 U.S.C. Section 703.  At the outset, as Leelanau County pointed out,
the 1979 Banks analysis, which set forth the 2,500 avian mortality figure, was
based on studies of towers considerably taller than the Jurica tower and located
in completely different migratory flyways, and thus does not have direct bearing
on the impact of Leelanau County's proposed tower.   Moreover, it is not clear
whether the MBTA, which is primarily a "hunting" statute that prohibits the
"pursuing, hunting, taking, capturing and killing" of migratory birds, would even
apply to a federally authorized tower structure.  Nevertheless, consistent with
our overall obligations to consider the impact of our authorized facilities on
the environment, we will address and determine whether the proposed Jurica tower
would pose a significant, adverse impact on the migratory bird population. 
Based on our review of the complete record and our imposition of further
conditions on Leelanau County's authorization as set forth below, we have
determined that the Jurica tower will not result in a significant loss of
migratory birds.   

      9.   Based on all of the submissions furnished by both Leelanau County and
CET, it appears that any appreciable danger to the migratory bird population by
the proposed Jurica tower would be during periods of low visibility, when the
birds become disoriented. We will thus condition Leelanau County's
authorization on its marking the tower and guyed lines with appropriate balls
and/or streamers, which, as we have found in the past, increases the structure's
visibility and thus ameliorates the impact of a tower on the migratory bird
population.   Moreover, recent studies have indicated that bird casualties
would be dramatically reduced by the utilization of red beacon flashing lighting
on towers.  Apparently, the alternating periods of light and darkness enable
the birds to adjust, become aware of their surroundings, and avoid tower
structures.  Accordingly, we will further condition Leelanau County's
authorization on the installation of such lighting features.  Finally, we will
condition Leelanau County's authorization on a comprehensive monitoring
requirement that will require the County to continually monitor and report to the
Bureau any and all migratory bird casualties, in addition to the existing
conditions regarding threatened and endangered species.  We believe that the
conditions thus imposed will address CET's concerns, and more importantly, will
significantly ameliorate any impact of the proposed Jurica tower on the migratory
bird population. 
                  
                   Affect on the National Lakeshore

      10.  The proposed Jurica site consists of 40 acres of undeveloped land. 
The Jurica tower will be located 1.5 miles northeast from the northern tip of the
National Lakeshore, a national park system that hosts several designated
wilderness areas and is administered by the National Park Service.  CET contends
that the Jurica tower will infringe upon the "natural and cultural resources," 
adversely impact the "view shed," and interfere with the "visitor experience." 
CET also asserts that the very presence of such a structure may preclude future
wilderness designation of the Good Harbor Basin area.  

      11.  In assessing aesthetic concerns, the Commission accords considerable
weight to local planning decisions that have addressed such matters, and other
expert agencies that are familiar with and responsible for overseeing and
administering this nation's natural, cultural and historic resources.  The
National Park Service has considered Leelanau County's proposal, and has found
that: 

      While the proposed communications tower is taller than others
      located  within visual distance of the . . . National
      Lakeshore, the impact is not anticipated to be significantly
      different from the other intrusions already impacting the
           viewshed [sic].  For example,  the developments at Sugar Loaf
      Mountain and at the Homestead Resort,  the major electrical
      power lines cutting across the Miller Hill ridge, the FAA
      radar dome at Empire, etc.   
           
     The National Park Service concluded, by stating that it did not "anticipate any
direct impacts to the natural or cultural resources within the boundaries of the
. . . National Lakeshore" and "strongly" supporting Leelanau County's proposal,
which represents an "equitable solution that will resolve the [County's]
communications problems."  We note that CET did not support or document its
claim that the tower would adversely affect the National Lakeshore, and did not
provide any evidence to refute the National Park Service's finding of no impact. 
We thus accord due deference to the National Park Service's findings and conclude
on the record before us that the Jurica tower will not have a significant,
adverse impact on the National Lakeshore.   We further find that there is no
record evidence to support CET's speculative assertions that the erection of the
Jurica tower will have a detrimental effect on, or preclude, any future wildlife
or wilderness designations.   

                      Consideration of Alternative Sites 

      12.  The study of alternative sites and systems, while critical to an
adequate assessment of the particular proposal under consideration, need not be
exhaustive or exacting, only a reasonable choice of alternatives is required. 
Contrary to CET's assertions that alternative sites were not addressed, the
alternative site analysis was reasonable and reflected a detailed consideration
of alternative sites and systems.  Moreover, as discussed below, the
alternative site analysis demonstrated that the alternative systems and sites
were not selected due to either infeasibility or unavailability. 

      13.  The County initially had considered a proposal to utilize and upgrade
its eleven existing sites, the proposal most favored by CET.   However, such a
proposal would not have corrected many of the operational problems associated
with Leelanau County's current multiple transmitters.  Most importantly, such a
proposal would necessitate a zoned system for police operations which would
require police officers to change channels on the radios to stay in touch with
the dispatcher -- a method considered to be both cumbersome and unsafe. 
Moreover, the existing towers would have to be replaced with much taller
structures and additional relay sites would be needed to support the microwave
radio operations, at great expense to the County.  
 

      14.  Given the constraints of updating and utilizing the current system,
the alternative site analysis examined proposals based on the construction of a
central tower site, supported by several existing tower sites.  Specifically, the
alternative site analysis considered an already existing Leelanau County site,
known as Maple City, as a potential central tower site.  That site proved not to
be a viable option, because the County was unable to acquire the additional land
that would have been necessary to accommodate the taller, replacement tower and
its supporting guy wires.  The alternative site analysis also considered the
possibility of  utilizing the tower located at, and leased by, Central Michigan
University, as central tower site.  However, the alternative analysis points out
that concerns were raised as to whether the University tower could support
additional microwave dish antennae, and more importantly, whether the public
safety communication system could afford to hinge on a lease that is subject to
periodic renewal and possible future termination.  The alternative site analysis
further considered as a possible central tower site an area located on land owned
by the County's Road Commission, known as the "gravel pit" site.  The gravel pit
site was subject to zoning restrictions, however, and an attempt to have the
property rezoned failed.  

      15.  Based on the alternative site analysis, we believe that Jurica site
represents the best, most viable option for the location of a central tower site. 
In contrast to the other alternatives considered, the Jurica site, which has been
acquired by Leelanau County, meets all the technical requirements for the central
tower site proposal, in that it:  1) is centrally located in Leelanau County; 
2) has enough acreage to accommodate the tower and supporting guy wires;  3) is
at least 900 feet above mean sea level; and  4) it is also properly zoned.  We
further believe that the proposed system design, which utilizes the Jurica
central tower site and four existing tower sites, will best achieve Leelanau
County's objectives.  

                               Conclusion
                              
      16.  We affirm the Bureau's conditional grants issued to Leelanau County
on December 21, 1993.  As discussed in para. 9, we will further condition
Leelanau County's grants.  We find that the imposition of such conditions will
ameliorate any impact the Jurica tower might have on the migratory bird
population, and that the tower thus will not significantly impact the
environment.  We also find that the Jurica tower will not significantly affect
the National Lakeshore.  Finally, we find that grant of Leelanau County's
applications will serve the public interest, convenience and necessity by
enabling it to provide a necessary reliable and effective public communications
system necessary to protect and safeguard the County's citizens, as  well as  the
National Lakeshore's visitors.  

      17.  Accordingly, IT IS ORDERED THAT CET's Application for Review IS
DENIED, and that the Bureau's grant of Leelanau County's six land mobile and
microwave applications IS AFFIRMED.  WE FURTHER ORDER that Leelanau County's
authorizations will be subject to the additional following conditions: 

         1. The licensee shall conduct monitoring at the Jurica site
         on a regular basis to evaluate the impact of the tower
         structure and supporting guy wires on the migratory bird
         population.   The licensee shall record any losses or other
         casualties of migratory birds on an annual basis to the
         Private Radio Bureau.  
         
         2. The licensee shall utilize strobe red beacon lightning
         and install other appropriate markings such as balls and/ or
         streamers, at the Jurica tower for the protection of the
         migratory bird population.   
         
         
                              FEDERAL COMMUNICATIONS COMMISSION

                              William F. Caton
                              Acting Secretary