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 Federal  Communications  Commission  DA  01-  2245 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 STATE  OF  MARYLAND  DEPARTMENT  OF 
 BUDGET  AND  MANAGEMENT 


 Application  for  Antenna  Structure  Registration 
 Ellicott  City,  Maryland 


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 WTB  Tower  Registration  No.  A0191409 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  September  26,  2001  Released:  September  27,  2001 
 By  the  Deputy  Chief,  Commercial  Wireless  Division,  Wireless  Telecommunications  Bureau: 


 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order,  we  grant  an  application  for  antenna  structure 
 registration,  which  includes  an  environmental  assessment,  filed  by  the  State  of  Maryland,  Department  of 
 Budget  and  Management  (  Maryland  DBM),  1  and  we  deny  two  petitions  to  deny  the  Application.  The 
 Application  seeks  authorization  to  construct  a  340-  foot  public  safety  communications  tower  in  Ellicott 
 City,  Maryland.  Petitions  to  deny  were  filed  by  Dr.  Richard  D.  Bright  (  Dr.  Bright),  a  resident  of  Ellicott 
 City,  on  behalf  of  himself,  the  Patapsco  Heights/  Church  Road  Association,  and  Friends  of  the  Patapsco 
 Female  Institute,  2  and  by  Preservation  Howard  County.  3  Dr.  Bright  and  Preservation  Howard  County 
 contend  that  the  environmental  assessment  is  substantively  and  procedurally  defective,  and  that  the 
 proposed  tower  would  have  an  adverse  effect  on  various  historic  properties.  Dr.  Bright  and  Preservation 
 Howard  County,  therefore,  argue  that  grant  of  the  Application  and  construction  of  the  tower  would  be 
 inconsistent  with  the  Commissions  environmental  rules  4  implementing  the  National  Environmental  Policy 
 Act  of  1969  (  NEPA),  5  and  Section  106  of  the  National  Historic  Preservation  Act  of  1966  (  NHPA).  6 


 1  See  FCC  Application  for  Antenna  Structure  Registration  File  No.  A0191409  filed  May  16,  2001  (  Maryland 
 DBM  Application). 
 2  Response  to  Environmental  Assessment,  dated  May  16,  2001,  for  the  Communications  Tower  at  the  District 


 Court  in  Ellicott  City,  MD  21045,  filed  June  18,  2001  (  Bright  Petition);  Public  Response  to  the  Environmental 
 Assessment  dated  May  16,  2001  FCC  Application  for  Antenna  Structure  Registration  For  the  State  of  Maryland, 
 Department  of  Budge  and  Management  Ellicott  City  Public  Safety  Communications  Tower  3451  Courthouse 
 Drive,  Ellicott  City,  Howard  County,  Maryland  filed  July  2,  2001  (  Bright  Supplemental  Petition). 


 3  Letter  from  Mary  Catherine  Cochran,  President,  Preservation  Howard  County  to  Federal  Communications 


 Commission  (  Commission  or  FCC)  dated  July  2,  2001  (  Preservation  Howard  County  Objection). 
 4  47  C.  F.  R.    1.1301-  1.1319. 


 5  42  U.  S.  C.    4321-  4395  (1997). 
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 For  the  reasons  set  forth  herein,  the  Commercial  Wireless  Division  (  Division)  of  the  Wireless 
 Telecommunications  Bureau  (  Bureau),  acting  under  delegated  authority,  denies  the  petitions  filed  by  Dr. 
 Bright  and  Preservation  Howard  County,  makes  a  Finding  of  No  Significant  Impact  to  the  Environment, 
 and  grants  Maryland  DBMs  Application. 


 II.  BACKGROUND 
 2.  In  its  Application,  Maryland  DBM  seeks  antenna  structure  registration  for  a  340-  foot, 
 self-  supporting  lattice  tower  to  be  located  on  State  of  Maryland-  owned  property  adjacent  to  the  Maryland 
 District  Court  for  Howard  County,  3451  Courthouse  Drive,  Ellicott  City,  Maryland  (the  District  Court 
 site).  7  The  District  Court  site  is  located  on  a  hill  overlooking  historic  Ellicott  City,  next  to  two  parking 
 lots  at  the  District  Court  building.  It  is  approximately  700  feet  from  the  nearest  residential  building  and  is 
 screened  by  existing  trees  and  vegetation  on  three  sides  of  the  property.  The  fourth  side  of  the  property, 
 which  is  open,  faces  the  District  Court  building.  8  The  site  is  300  feet  from  the  boundary  of  the  Ellicott  City 
 Historic  District,  9  which  includes  the  Patapsco  Female  Institute  and  the  single-  family  dwellings  along 
 Church  Road  and  Sylvan  Lane.  10 


 3.  The  proposed  tower  is  intended  to  support  antenna  facilities  that  will  expand  and  upgrade 
 the  existing  public  safety  communications  systems  of  the  State  of  Maryland  and  Howard  County.  At 
 present,  Maryland  DBM  and  the  Howard  County  Department  of  Public  Works  (  Howard  County  DPW) 
 operate  multiple  communications  networks  in  Howard  County  pursuant  to  Commission  licenses.  These 
 existing  systems,  however,  are  inadequate  to  support  the  current  communications  requirements  of  the  State 
 of  Maryland  and  Howard  County.  11  To  remedy  this  situation,  the  State  of  Maryland  is  currently 
 constructing  a  statewide  communications  network  to  link  various  local  public  safety  organizations.  An 
 antenna  on  the  proposed  tower  would  serve  as  a  critical  microwave  relay  station  on  this  network,  running 
 westbound  through  Howard  County.  12  The  proposed  tower  would  also  contain  emergency  medical  services 


 (Continued  from  previous  page)  6 
 16  U.  S.  C.    470f. 


 7  Maryland  DBM  Application.  Under  the  Commissions  rules,  any  proposed  antenna  structure  that  requires 


 notice  of  proposed  construction  to  the  Federal  Aviation  Administration  (  FAA)  must  be  registered  with  the 
 Commission  prior  to  construction.  47  C.  F.  R.    17.4;  see  also  47  C.  F.  R.    17.  7  (requiring  registration  and  FAA 
 notification  for  antenna  structures  that  are  greater  than  200  feet  in  height  or  that  are  located  within  range  of 
 specified  distances  from  an  airport). 


 8  Amendment  to  the  FCC  Application  for  Antenna  Structure  Registration  For  the  State  of  Maryland,  Department 


 of  Budget  and  Management,  Ellicott  City  Public  Safety  Communications  Tower,  3451  Courthouse  Drive,  Ellicott 
 City,  Howard  County,  Maryland,  filed  May  16,  2001  as  an  attachment  to  the  Maryland  DBM  Application 
 (  Maryland  DBM  Environmental  Assessment). 


 9  Bright  Supplemental  Petition  at  2. 


 10  See  Memorandum  of  Agreement  between  the  Federal  Communications  Commission  and  the  Maryland  State 
 Historic  Preservation  Officer  Regarding  the  Joint  State/  County  Public  Safety  Antenna  Tower  in  Ellicott  City, 
 Howard  County,  Maryland,  dated  May  16,  2001  (  Memorandum  of  Agreement)  at  1. 


 11  Documentation  for  Submission  to  the  Advisory  Council  on  Historic  Preservation  in  accordance  with  36  C.  F.  R. 


 800.11(  e),  prepared  by  the  State  of  Maryland  and  Howard  County,  Maryland  at  1. 
 12  Id.  at  1,5. 
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 antennas  serving  the  communications  needs  of  the  Maryland  Institute  for  Emergency  Medical  Services,  the 
 State  of  Marylands  pre-  hospital  emergency  medical  care  system.  13  In  addition,  the  proposed  tower  would 
 be  the  hub  site  of  an  800  MHz  trunked  public  safety  communications  system  that  Howard  County  is 
 constructing  to  address  the  inadequacies  of  its  existing  network. 


 4.  Maryland  DBM  initially  planned  to  locate  the  proposed  tower  on  the  west  side  of  Rogers 
 Avenue,  approximately    of  a  mile  from  the  Ellicott  City  Historic  District.  Maryland  DBM  filed  an 
 antenna  registration  application  for  this  site,  known  as  the  Campus  site,  on  April  26,  2000.  14  However, 
 the  Campus  Site  was  subsequently  abandoned  by  Maryland  DBM  as  unsuited  to  its  needs,  and  the  District 
 Court  site  was  selected  instead.  15 


 5.  Under  the  Commissions  rules,  an  applicant  to  construct  facilities  must,  in  consultation 
 with  the  relevant  expert  agencies,  determine  whether  the  facility  falls  within  one  of  eight  categories 
 specified  in  the  Commissions  rules  that  may  significantly  affect  the  environment  and  thus  requires 
 preparation  of  an  environmental  assessment.  16  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.  17  During  its  review  of  the  District  Court  site,  the  Maryland  State  Historic  Preservation  Officer 


 (  Maryland  SHPO)  informed  Maryland  DBM  and  the  Commission  that  the  proposed  project  would 
 cause  adverse  effects  to  historic  properties  either  eligible  or  listed  in  the  National  Register  of  Historic 
 Places,  including  the  Church  Road  and  Sylvan-  Lane  houses.  18  In  light  of  this  correspondence,  the  Chief  of 
 the  Data  Management  Division  of  the  Bureau  set  aside  the  grant  of  the  antenna  structure  registration  for 
 the  District  Court  site  19  and  dismissed  Maryland  DBMs  application.  20  At  the  same  time,  the  Chief  of  the 
 Public  Safety  and  Private  Wireless  Division  (  PSPWD)  of  the  Bureau  directed  Maryland  DBM  to  meet 
 with  the  Maryland  SHPO  in  order  to  initiate  efforts  to  mitigate  the  adverse  effect  or  avoid  the  adverse 


 13  Id.  at  2. 
 14  See  Antenna  Structure  Registration  number  A0122353,  granted  April  26,  2000. 
 15  See  Technical  Analysis  prepared  by  Charles  Lacey  dated  March  6,  2001  (  Lacey  March  6,  2001  Study)  at  1-  5. 
 16  See  47  C.  F.  R.    1.1307(  a). 
 17  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. 


 18  See  Letter  from  J.  Rodney  Little,  State  Historic  Preservation  Officer  to  G.  Edward  Ryan  II, 


 Telecommunications  Division,  Department  of  Budget  and  Management  (dated  Jan.  8,  2001)  (  Maryland  SHPO 
 January  8,  2001  letter). 


 19  See  FCC  File  No.  AO163699  (filed  January  26,  2001  and  granted  January  30,  2001). 


 20  See  Letter  from  John  A.  Chudovan,  Chief,  Data  Management  Division,  Wireless  Telecommunications  Bureau, 
 to  Geoffrey  J.  C.  Boyd,  Assistant  Attorney  General,  State  of  Maryland  Office  of  the  Attorney  General  (dated  Feb. 
 15,  2001)  (  Chudovan  February  15,  2001  letter). 
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 effect  by  relocating  the  tower  to  an  alternate  site.  21  PSPWD  further  instructed  Maryland  DBM  not  to 
 initiate  construction  of  the  tower  until  the  matter  was  resolved.  22 


 6.  On  February  23,  2001,  a  public  meeting  was  held  to  discuss  the  proposed  tower 
 construction.  23  This  public  meeting  was  attended  by  representatives  of  Maryland  DBM,  Howard  County 
 DPW,  the  National  Trust  For  Historic  Preservation  (  National  Trust),  the  general  public  (including  Dr. 
 Bright  and  Preservation  Howard  County)  and  the  Commission  staff.  24  The  public  meeting  focused  on 
 whether  there  was  any  reasonable  alternative  to  locating  the  tower  at  the  District  Court  site;  and,  if  not, 
 whether  mitigation  measures  were  available  to  minimize,  mitigate  or  avoid  the  adverse  effect  upon  the 
 identified  historic  sites.  Consulting  parties  were  identified,  including  Dr.  Bright  and  Preservation  Howard 
 County,  and  a  public  comment  period  was  established  to  further  develop  the  record.  In  order  to  facilitate 
 this  process,  as  well  as  minimize  expense  while  maximizing  information  flow,  certain  parties  were 
 identified  as  principal  consulting  parties,  charged  with  the  responsibility  of  keeping  other  participants  fully 
 informed  about  matters  in  the  proceeding. 


 7.  Thereafter,  on  February  26,  2001,  Commission  staff  formally  established  the  public 
 comment  period  up  to  and  including  March  12,  2001.  25  In  addition,  Commission  staff  formally  alerted  the 
 Advisory  Council  on  Historic  Preservation  (  Advisory  Council)  about  the  on-  going  Section  106 
 proceeding  involving  the  proposed  tower,  affording  the  Advisory  Council  the  opportunity  to  participate.  26 
 In  response  to  the  request  for  public  comment,  approximately  50  comments  were  received.  27 


 8.  During  the  course  of  the  public  meeting,  and  in  the  weeks  that  followed,  Maryland  DBM 
 and  the  tower  opponents  disagreed  on  whether  the  proposed  tower  could  alternatively  be  located  at  the 
 Campus  site.  On  March  2,  2001,  the  Maryland  SHPO  requested  further  investigation  regarding  the 
 possibility  of  constructing  the  tower  at  an  alternate  location.  28  In  addition,  the  parties  offered  technical 


 21  See  Letter  from  Dwana  R.  Terry,  Chief,  Public  Safety  and  Private  Wireless  Division,  Wireless 
 Telecommunications  Bureau,  to  Ruth  Newman  Fahrmeier,  Senior  Assistant  County  Solicitor,  Howard  County 
 Office  of  Law,  and  Geoffrey  J.  C.  Boyd,  Assistant  Attorney  General,  State  of  Maryland  Office  of  the  Attorney 
 General  (dated  Feb.  15,  2001).  See  also  36  C.  F.  R.    800.6(  a)  (agency  shall  consult  with  consulting  parties  to 
 develop  and  evaluate  alternatives  or  modifications  to  the  undertaking  that  could  avoid,  minimize,  or  mitigate 
 adverse  effects). 


 22  Id. 


 23  See  36  C.  F.  R.    800.2(  d)  (agency  shall  seek  and  consider  views  of  the  public). 
 24  See  Meeting  Sign-  In  Sheet  dated  February  23,  2001. 
 25  See  Memorandum  from  Dan  Abeyta,  Commercial  Wireless  Division,  to  the  Consulting  Parties,  dated  February 
 26,  2001. 
 26  See  Letter  from  Dan  Abeyta,  Commercial  Wireless  Division,  to  Don  L.  Klima,  Office  of  Planning  and  Review, 


 Advisory  Council  on  Historic  Preservation,  dated  February  26,  2001;  36  C.  F.  R.    800.6(  a)(  1)  (requiring  that 
 notice  be  sent  to  the  Advisory  Council). 


 27  These  comments  are  available  in  the  public  record. 


 28  Letter  from  J.  Rodney  Little,  State  Historic  Preservation  Officer,  to  Dan  Abeyta,  Commercial  Wireless  Division 
 (dated  Mar.  2,  2001). 
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 analyses  prepared  by  their  respective  experts.  29  Based  upon  the  request  in  the  Maryland  SHPOs  letter  and 
 upon  meetings  with  Dr.  Bright,  Maryland  DBM  and  Howard  County  DPW,  the  Division  agreed  that  the 
 Commission  would  conduct  a  technical  analysis  to  determine  the  feasibility  of  the  Campus  site. 


 9.  After  the  period  for  filing  written  comments  closed,  the  Division  convened  two 
 teleconferences  among  the  principal  parties  to  discuss  either  relocating  the  tower  or  developing  mitigation 
 measures  acceptable  to  the  parties.  The  teleconferences  were  conducted  on  April  19,  2001,  and  April  25, 
 2001.  30  At  each  of  the  teleconferences,  Division  staff  explained  that  findings  from  an  internal  engineering 
 analysis  did  not  support  the  Campus  site  as  a  reasonable  alternative  for  constructing  the  tower  because 
 achieving  comparable  coverage  at  the  Campus  site  would  require  a  structure  of  much  greater  height,  which 
 in  turn  would  create  harmful  interference.  The  Divisions  conclusions,  which  were  discussed  in  great  detail 
 at  each  of  the  teleconferences,  were  later  distributed  to  the  parties  in  a  written  memorandum.  31 


 10.  In  light  of  the  Divisions  determination  that  the  Campus  site  was  not  a  reasonable 
 alternative  for  the  proposed  tower  location,  discussions  during  the  two  teleconferences  focused  upon  the 
 negotiation  of  measures  designed  to  minimize,  mitigate,  and  /or  avoid  the  adverse  effect  recommended  by 
 the  Maryland  SHPO.  Throughout  the  Section  106  process,  various  parties  offered  mitigation  measures 
 designed  to  address  the  adverse  effect  upon  the  various  historic  sites  identified  by  the  Maryland  SHPO.  32 
 After  extensive  discussion  among  the  parties,  and  full  consideration  by  Division  staff,  the  Commission,  the 
 Maryland  SHPO,  Maryland  DBM,  and  Howard  County  entered  into  a  Memorandum  of  Agreement 
 containing  specific  measures  to  be  taken  by  Maryland  DBM  and  Howard  County  DPW  to  mitigate  the 
 towers  impact.  33  Dr.  Bright  and  Preservation  Howard  County  declined  the  opportunity  to  sign  the 
 Memorandum  of  Agreement  as  concurring  parties. 


 11.  On  May  16,  2001,  Maryland  DBM  filed  the  Application,  accompanied  by  an 
 environmental  assessment  and  the  Memorandum  of  Agreement.  The  Application  appeared  on  Public 


 29  Dr.  Bright  submitted  technical  studies  by  Charles  Lacey  dated  March  6,  2001,  April  18,  2001  and  June  26, 
 2001.  Maryland  DBM  and  Howard  County  DPW  submitted  a  technical  analysis  by  Motorola  Corporation  dated 
 March  28,  2001. 


 30  See  Letter  from  Dan  Abeyta,  Commercial  Wireless  Division,  to  Elizabeth  S.  Merritt,  Associate  General 


 Counsel,  National  Trust  for  Historic  Preservation  and  Dr.  Richard  D.  Bright,  Citizen  Coordinator  (dated  Apr.  20, 
 2001);  and  electronic  mail  message  from  Frank  Stilwell,  Commercial  Wireless  Division,  to  the  Consulting 
 Parties  (dated  Apr.  16,  2001). 


 31  See  Memorandum  from  Commercial  Wireless  Division,  Wireless  Telecommunications  Bureau,  to  the 


 Consulting  Parties  (dated  June  26,  2001). 
 32  See  Letters  from  Elizabeth  S.  Merritt,  Associate  General  Counsel,  National  Trust  for  Historic  Preservation,  to 


 Dan  Abeyta,  Commercial  Wireless  Division  (dated  Mar.  12,  2001  and  Apr.  30,  2001);  Robert  C.  Brown,  counsel 
 to  Richard  D.  Bright,  to  Dan  Abeyta,  Commercial  Wireless  Division  (dated  Apr.  20,  2001);  Alan  M.  Ferragamo, 
 Deputy  Director,  Department  of  Public  Works,  Howard  County,  to  Dan  Abeyta,  Commercial  Wireless  Division 
 (dated  Apr.  23,  2001  and  Apr.  30,  2001). 


 33  Memorandum  of  Agreement.  These  mitigation  measures  include,  among  other  things,  (1)  tower  design 


 specifications,  including  limitations  on  height,  number  of  antennas,  location,  advertising  logos,  and  lighting,  (2) 
 establishment  of  a  buffer  of  deciduous  and  evergreen  plant  materials  outside  the  perimeter  security  fence  of  the 
 tower  facility,  and  reforestation  of  the  area  at  the  base  of  the  tower,  and  (3)  the  monitoring  and  reporting  of 
 changes  in  technology  that  would  permit  reduction  of  the  visibility  of  the  tower. 
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 Notice  on  May  17,  2001,  as  accepted  for  filing.  34  Dr.  Bright  filed  a  petition  to  deny  the  Application  on 
 June  18,  2001,  35  followed  by  a  supplementary  filing  on  July  2,  2001.  36  Preservation  Howard  County 
 likewise  filed  an  objection  on  July  3,  2001.  37  Maryland  DBM  filed  a  brief  opposition  on  July  13,  2001, 
 arguing  that  the  record  is  sufficient  to  address  all  issues  raised  by  the  petitioners.  38  Neither  petitioner  filed 
 a  reply. 


 III.  DISCUSSION 
 12.  Section  1.1308  of  the  Commissions  rules  requires  applicants  to  prepare  an  environmental 
 assessment  (  EA)  for  actions  that  may  pose  a  significant  environmental  impact.  39  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.  40  In  performing  this  independent  review,  we 
 consider  the  entire  record,  including  all  petitions  and  objections  filed  against  the  environmental  assessment. 
 Here,  Dr.  Bright  and  Preservation  Howard  County  have  raised  both  substantive  challenges  to  the 
 environmental  assessment  and  objections  to  the  procedures  followed  in  this  matter.  For  the  reasons 
 discussed  below,  we  find  that  these  objections  are  without  merit,  and  we  further  conclude  that  the  proposed 
 construction,  as  conditioned  in  the  Memorandum  of  Agreement,  will  not  have  a  significant  environmental 
 impact.  We  therefore  deny  the  petitions  to  deny  and  grant  Maryland  DBMs  application. 


 34  Public  Notice,  Report  Number:  CWS-  01-  58,  May  17,  2001. 
 35  Bright  Petition.  Dr.  Bright  requested  additional  time  to  file  his  petition  to  deny,  arguing  that  he  had  not  been 
 notified  that  the  environmental  assessment  was  filed  on  May  16,  2001.  See  letter  from  Richard  D.  Bright  to  Dan 
 Abeyta,  Commercial  Wireless  Division,  dated  June  14,  2001.  An  opposition  to  Dr.  Brights  request  was  filed  by 
 Howard  County  DPW.  See  letter  from  Ruth  Newman  Fahrmeier,  Senior  Assistant  County  Solicitor,  to  Dan 
 Abeyta,  Commercial  Wireless  Division,  dated  June  15,  2001.  Although  rejecting  Dr.  Brights  argument  that  he 
 should  have  received  personal  notification  that  the  environmental  assessment  was  filed,  the  Division  granted  Dr. 
 Bright  additional  time  to  file,  up  to  and  including  July  3,  2001,  based  upon  technical  irregularities  with  the 
 Commissions  Universal  Licensing  System  that  had  hampered  Dr.  Brights  ability  to  access  the  environmental 
 assessment.  See  Letter  from  William  Kunze,  Chief,  Commercial  Wireless  Division,  to  Richard  D.  Bright  and 
 Mrs.  Sally  Bright,  dated  June  26,  2001  (  Kunze  June  26,  2001  letter).  For  the  same  reason,  requests  for 
 extension  of  time  filed  by  Mary  Catherine  Cochran  and  Preservation  Howard  County  (Letter  from  Mary 
 Catherine  Cochran  to  Dan  Abeyta,  Commercial  Wireless  Division  (dated  June  18,  2001));  and  Jennifer  Held 
 Matthaei  of  the  Patapsco  Female  Institute  (Letter  from  Jennifer  Held  Matthaei  to  Dan  Abeyta,  dated  June  18, 
 2001)  were  likewise  granted.  See  Letter  from  William  W.  Kunze,  Chief,  Commercial  Wireless  Division  to 
 Jennifer  Held  Matthaei  and  Mary  Catherine  Cochran,  dated  June  26,  2001. 


 36  Bright  Supplemental  Petition. 


 37  Preservation  Howard  County  Objection. 
 38  See  letter  from  G.  Edward  Ryan,  II,  Assistant  Director,  Wireless  Communications,  Maryland  Department  of 
 Budget  and  Management,  to  Ms.  Magalie  Salas,  Office  of  the  Secretary,  Commission,  dated  July  13,  2001 
 (  Maryland  DBM  Opposition). 


 39  47  C.  F.  R.    1.1308. 


 40  Id.  If  a  Commission  action  will  have  a  significant  environmental  impact,  an  Environmental  Impact  Statement 
 must  be  prepared.  47  C.  F.  R.    1.1305. 
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 A.  Challenges  to  the  Environmental  Assessment 
 13.  Dr.  Bright  first  contends  that  the  environmental  assessment  contains  several  errors  and 
 omissions  in  identifying  affected  historic  sites  and  the  potential  effect  of  the  tower  on  those  sites.  In  this 
 regard,  Dr.  Bright  argues  that  the  Church  Road-  Sylvan  Lane  historic  district  was  erroneously  identified  as 
 an  eligible  historic  site  rather  than  a  listed  historic  site.  41  Moreover,  the  Maryland  SHPO,  he  contends, 
 failed  to  identify  a  number  of  other  historic  sites  within  the  Area  of  Potential  Effects  (  APE)  for  the  tower 
 construction.  42  He  further  notes  that  the  Maryland  SHPO,  the  Maryland  DBM,  and  the  Commission  have 
 failed  to  acknowledge  that  the  upper  Church  Road-  Sylvan  Lane  historic  area  was  identified  by  Preservation 
 Howard  County  as  one  of  the  most  endangered  historic  sites  in  Howard  County  and  that  the  tower  may  be 
 near  a  scenic  road.  43  In  addition,  Dr.  Bright  argues  that  Maryland  DBM  should  have  prepared  a  photo 
 simulation  of  the  tower  to  fully  assess  its  impact. 


 14.  Dr.  Bright  is  correct  to  note  that  the  Church  Road-  Sylvan  Lane  historic  district  is  listed  on 
 the  National  Register  of  Historic  Places.  This  fact,  however,  is  immaterial  to  the  sufficiency  of  the 
 environmental  assessment.  Regardless  of  whether  a  site  is  listed  or  eligible  for  listing,  the  inquiry  under  the 
 NHPA  is  whether  and  how  it  would  be  affected  by  the  proposed  undertaking,  and  how  any  adverse  effect 
 can  be  mitigated  or  avoided.  In  this  case,  consistent  with  the  Advisory  Councils  rules,  Maryland  DBM 
 and  the  Commission  consulted  with  the  Maryland  SHPO  regarding  the  identification  of  listed  or  eligible 
 sites  within  the  APE  and  the  effects  of  the  proposed  undertaking  on  those  sites.  44  Indeed,  the  environmental 
 assessment  adopts  the  Maryland  SHPOs  recommendation  on  these  matters.  45  Nothing  in  the  petitions 
 persuades  us  that  the  Maryland  SHPO  failed  to  consider  relevant  factors  or  otherwise  erred  in  making  its 
 determinations.  We  further  note  that  the  record  is  replete  with  photo  documentation  of  this  site,  so 
 preparation  of  a  photo  simulation  would,  at  best,  have  been  duplicative. 


 15.  Dr.  Bright  next  argues  that  the  Campus  site  is,  in  fact,  a  reasonable  alternative  to  the 
 District  Court  site.  46  Dr.  Bright  initially  notes  that  Maryland  DBM  originally  planned  to  locate  at  this  site 
 and,  indeed,  even  registered  the  site  with  the  Commission.  47  Citing  the  reports  of  his  expert,  Charles  Lacey, 
 Dr.  Bright  argues  that  the  Campus  site  would  provide  comparable  coverage  to  the  Ellicott  City  area.  48 
 Finally,  Dr.  Bright  states  that  the  Campus  site  would  have  none  of  the  same  historic  and  other 


 41  Bright  Supplemental  Petition  at  2;  Bright  Petition  at  3. 
 42  Bright  Supplemental  Petition  at  8. 
 43  Id.  at  2. 
 44  See  36  C.  F.  R.    800.4,  800.5. 
 45  See  Maryland  SHPO  January  8,  2001  letter  (identifying  the  Church  Road-  Sylvan  Lane  District  as  an  eligible 
 district  and  concluding  the  project  would  have  an  adverse  effect  on  this  site);  Memorandum  of  Agreement  at  1 
 (concluding  that  sites  identified  in  the  Memorandum  of  Agreement  were  the  only  sites  adversely  affected). 


 46  Bright  Supplemental  Petition  at  4-  6;  Bright  Petition  at  2-  3. 


 47  Bright  Supplemental  Petition  at  4,5. 
 48  Id.  at  4-  6. 
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 environmental  effects  as  the  District  Court  site.  49  Preservation  Howard  County  similarly  argues  that  the 
 analysis  of  the  Campus  site  as  an  alternative  was  insufficient.  We  disagree. 


 16.  The  subject  of  constructing  the  tower  at  the  Campus  Site  has  been  frequently  discussed 
 throughout  our  consideration  of  this  matter.  Maryland  DBM  and  Howard  County  DPW  have  offered 
 substantial  testimony,  including  original  documentation  from  their  contractor,  Motorola  Corporation, 
 tending  to  show  that  the  Campus  site  is  insufficient  for  their  needs.  50  Charles  Lacey,  on  behalf  of  Dr. 
 Bright,  argues  that  the  Campus  site  would  afford  adequate  coverage  to  the  target  area.  51  After  reviewing 
 certain  documentation  supplied  by  Howard  County,  52  however,  he  notes  that,  at  its  originally  proposed 
 height  of  340  feet,  there  might  be  an  interference  problem  at  the  Campus  site.  53  He  further  notes  that 
 Maryland  DBM,  while  initially  choosing  this  site,  elected  instead  to  use  the  District  Court  site.  54 


 17.  The  analysis  conducted  by  Division  staff  explains  why  Maryland  DBM  abandoned  the 
 Campus  site  and  why  it  is  not  a  satisfactory  alternative.  A  340-  foot  tower  at  the  Campus  site  would  be 
 inadequate  to  serve  the  multiple  needs  to  be  addressed  by  the  proposed  construction.  In  particular,  due  to 
 topography,  a  340-  foot  tower  at  the  Campus  site  would  not  provide  adequate  signal  strength  for  public 
 safety  coverage  in  the  Ellicott  City  historic  district.  These  needs  could  only  be  satisfied  at  the  Campus  site 
 by  a  500-  foot  tower.  However,  antennas  at  this  height  would  encounter  interference  caused  by  distant  co-channel 
 signals,  which  itself  might  compromise  the  health  and  safety  of  Ellicott  City  residents,  and  would 
 create  interference  to  distant  signals.  55  In  addition,  as  Preservation  Howard  County  concedes,  the  Campus 
 site  would  require  additional  expense  in  the  form  of  longer  fiber  optic  cable  connections.  56  We  also  note 
 that  the  record  does  not  permit  us  to  conclude  with  certainty  there  are  no  environmental  or  historic 
 preservation  issues  in  connection  with  possible  construction  at  the  Campus  site.  In  sum,  the  petitioners 
 have  offered  nothing  to  persuade  us  that  the  Campus  site  is  a  reasonable  alternative  to  the  District  Court 
 site,  or  that  further  investigation  is  necessary. 


 18.  Dr.  Bright  and  Preservation  Howard  County  also  argue  that  the  mitigation  measures 
 adopted  in  the  Memorandum  of  Agreement  are  inadequate  to  minimize,  mitigate  and/  or  avoid  the  adverse 
 effect  finding  by  the  Maryland  SHPO.  57  Trees  planted  near  the  site,  Dr.  Bright  states,  cannot  possibly 


 49  Id.  at  4. 


 50  Letter  from  James  N.  Robey,  Howard  County  Executive,  to  Dan  Abeyta,  Commercial  Wireless  Division  (dated 
 Mar.  12,  2001). 
 51  Bright  Supplemental  Petition  at  5;  Bright  Petition  at  3. 


 52  As  explained  in  the  Lacey  analysis,  Howard  County,  in  response  to  a  Freedom  of  Information  Act  request  from 
 the  Patapsco  Heights-  Church  Road  Association,  released  documentation  regarding  the  Campus  Site.  Lacey 
 March  6,  2001  Study  at  1. 


 53  Id.  at  2. 


 54  Id.  at  3. 
 55  Memorandum  to  Consulting  Parties  dated  June  26,  2001. 
 56  Preservation  Howard  County  Objection  at  2. 
 57  Bright  Supplemental  Petition  at  3;  Bright  Petition  at  2. 
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 buffer  the  towers  impact  on  the  neighborhood  nor  avoid  the  towers  intrusive  lights.  58  Reasonable 
 mitigation  measures  suggested  by  the  parties  were  ignored,  he  argues,  resulting  in  a  tower  that  completely 
 disrupts  the  environment  of  the  historic  district.  59  Preservation  Howard  County  argues  that  the 
 Commission  should  require  Maryland  DBM  to  include  in  the  environmental  assessment  the  amount  of 
 revenue  it  will  save  if  it  constructs  at  the  District  Court  site,  and  then  use  this  revenue  to  promote  historic 
 preservation  in  the  County.  60  Preservation  Howard  County  also  argues  that  the  environmental  assessment 
 has  to  consider  that  the  proposed  tower  is  a  controversial  matter  in  the  community.  61 


 19.  During  the  course  of  the  February  23,  2001  public  meeting,  during  the  public  comment 
 process,  and  before  and  during  the  various  teleconferences,  mitigation  measures  were  solicited,  and  always 
 considered  by  the  Commission  and  the  other  parties  involved.  While  it  is  important  for  all  mitigation 
 measures  to  be  considered,  there  is  no  requirement  that  all  of  them  be  adopted  as  part  of  a  Memorandum  of 
 Agreement.  Here,  the  Maryland  SHPO,  the  Commission,  Maryland  DBM  and  Howard  County  DPW 
 agreed  to  a  reasonable  solution  under  the  circumstances.  We  conclude  that  neither  petitioner  suggests 
 additional  mitigating  measures  that  would  better  address  any  adverse  effects  of  the  project.  In  particular, 
 we  consider  unwarranted  and  beyond  the  scope  of  mitigation  Preservation  Howard  Countys  suggestion 
 that  Maryland  DBM  devote  the  money  that  it  would  have  spent  to  construct  at  the  Campus  site  to  historic 
 preservation.  In  addition,  to  the  extent  that  the  environmental  assessment  fails  to  address  the  controversial 
 nature  of  this  proceeding,  we  note  that  the  Division  has  reviewed  the  news  articles  identified  by 
 Preservation  Howard  County  and  incorporates  them  into  the  record  of  this  proceeding. 


 20.  Finally,  Dr.  Bright  raises  certain  challenges  to  the  environmental  assessment  that  are  not 
 related  to  historic  preservation.  Specifically,  Dr.  Bright  argues  that  the  environmental  assessment  fails  to 
 address  the  adverse  effect  caused  by  the  towers  lighting  and  the  adverse  impact  on  the  community  caused 
 by  radio  frequency  emissions  from  transmitters  at  the  tower  site.  62  However,  the  Commissions  rules 
 require  the  filing  of  an  environmental  assessment  only  when  high  intensity  white  lights  are  to  be  employed 
 in  a  residential  neighborhood.  63  Here,  the  tower  is  to  be  equipped  with  a  dual  medium-  intensity  lighting 
 system,  64  not  high  intensity  white  lights,  and  will  employ  the  least  intrusive  lighting  permitted  by  the  FAA 
 in  terms  of  candela  (luminescence)  and  number  of  light  tiers.  65  With  respect  to  radio  frequency  emissions, 
 the  Maryland  DBM  Environmental  Assessment  certifies  compliance  with  the  Commissions  rules,  and  we 


 58  Id. 
 59  Bright  Supplemental  Petition  at  7-  9. 
 60  Preservation  Howard  County  Objection. 
 61  Id.  at  1. 
 62  Bright  Supplemental  Petition  at  10,11;  Bright  Petition  at  3. 
 63  47    C.  F.  R.  1.1307(  a)(  8). 
 64  See  Maryland  DBM  Application  question  38;  FAA  study  number  00-  AEA-  3082-  0E  (dual  medium  intensity 
 lighting;  white  lights  by  day  and  red  lights  by  night) 
 65  See  Memorandum  of  Agreement  at  3. 
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 have  no  reason  to  believe  that  the  Commissions  radio  frequency  emissions  guidelines  will  be  exceeded.  66 
 Therefore,  we  find  that  the  facility  will  have  no  significant  environmental  impact  in  either  of  these  respects. 


 21.  An  Environmental  Impact  Statement  is  required  only  when  an  undertaking  will  have  a 
 significant  effect  upon  the  quality  of  the  human  environment.  67  Because  we  find  no  adverse  impact  caused 
 by  lighting  or  radio  frequency  emissions,  and  because  the  adverse  effect  upon  historic  sites  will  be 
 mitigated,  an  Environmental  Impact  Statement  need  not  be  prepared  for  this  project.  We  therefore  reject 
 Dr.  Brights  argument  to  the  contrary.  68 


 B.  Procedural  Arguments 
 22.  In  addition  to  his  substantive  challenges  to  the  environmental  assessment,  Dr.  Bright 
 contends  that  he  and  other  members  of  the  public  were  denied  due  process  because  no  draft  environmental 
 assessment  was  prepared  upon  which  they  could  comment;  69  they  were  not  notified,  except  via  the 
 Commissions  Universal  Licensing  System  (  ULS)  network,  that  the  environmental  assessment  had  been 
 filed;  70  and  the  extension  of  time  afforded  the  parties  herein  was  too  short  to  be  meaningful.  71  Moreover,  he 
 argues,  due  process  was  not  afforded  to  the  parties  because  the  Advisory  Council  did  not  participate  in  the 
 negotiation  of  the  Memorandum  of  Agreement.  72  We  disagree. 


 23.  Dr.  Bright  and  other  members  of  the  public  have  had  ample  opportunity  to  participate 
 throughout  the  process  surrounding  this  proposed  tower.  As  discussed  above,  Dr.  Bright  participated  in 
 numerous  meetings  and  teleconferences,  and  filed  pleadings,  during  the  negotiation  of  the  Memorandum  of 
 Agreement  and  prior  to  filing  of  the  environmental  assessment.  In  the  course  of  this  process,  he  had  the 
 opportunity  to  address  virtually  all  of  the  issues  later  raised  in  the  environmental  assessment.  Nothing  in  the 
 Commissions  rules  or  guidelines  of  the  Council  on  Environmental  Quality  (  CEQ)  requires  the 
 Commission  to  publish  a  draft  environmental  assessment  as  part  of  this  preliminary  process.  Moreover, 
 once  the  environmental  assessment  was  filed,  we  promptly  issued  a  public  notice  establishing  a  30-  day 
 comment  period  and  made  the  filing  available  on  ULS.  This  30-  day  comment  period  is  clearly  consistent 
 with  CEQ  guidelines  and  is  sufficient  here.  Moreover,  nothing  in  the  rules  of  the  Commission  nor  the  CEQ 
 requires  individual  notice  to  members  of  the  public  when  an  environmental  assessment  is  filed.  Indeed,  we 
 note  that  the  Memorandum  of  Agreement,  with  which  Dr.  Bright  was  intimately  familiar,  placed  him  on 


 66  See  47  C.  F.  R.    1.1307(  b),  1.1310.  The  Maryland  DBM  tower  will  be  used  by  public  safety  licensees.  Each 
 licensee  is  required  to  certify  on  FCC  Form  601  (FCC  Application  for  Wireless  Telecommunications  Bureau 
 Radio  Service  Authorization)  that  the  licensees  operation  complies  with  the  Commissions  limits  on  radio 
 frequency  emissions. 


 67  47  C.  F.  R.    1.1305. 


 68  See  Bright  Supplemental  Petition  at  2. 
 69  Bright  Supplemental  Petition  at  7;  Bright  Petition  at  3. 
 70  Bright  Supplemental  Petition  at  7,8. 
 71  Id.  at  1. 
 72  Id. 
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 notice  that  an  environmental  assessment  was  to  be  filed  within  thirty  days  .  .  .  73  Failure  on  Dr.  Brights 
 part  to  exercise  due  diligence  is  not  justification  for  an  extension  of  time.  74  Nonetheless,  the  Division 
 granted  Dr.  Bright  and  other  parties  a  15-  day  extension  of  time  in  recognition  that  temporary  technical 
 irregularities  with  ULS  may  have  hampered  Dr.  Brights  ability  to  access  the  environmental  assessment 
 during  the  period  immediately  preceding  the  initial  filing  deadline.  75  Under  the  circumstances,  this 
 extension  of  time  was  more  than  enough  to  afford  all  the  parties  a  fair  opportunity  to  comment. 


 24.  Finally,  as  required  in  the  Advisory  Councils  rules,  76  Commission  staff  informed  the 
 Advisory  Council  that  negotiations  in  this  matter  were  on-  going.  77  After  receiving  this  notice,  the  Advisory 
 Council  determined  not  to  participate  in  the  consultation.  78  The  Advisory  Councils  rules  state  that  where 
 the  Advisory  Council  does  not  join  in  a  consultation,  the  agency  shall  proceed  directly  with  the  consulting 
 parties,  as  was  done  here.  79  Thus,  non-  participation  by  the  Advisory  Council  is  not  a  violation  of  Dr. 
 Brights  right  to  due  process. 


 IV.  CONCLUSION 
 25.  Upon  independent  review  of  the  environmental  assessment,  and  based  on  the  entire 
 administrative  record,  we  conclude  that  the  construction  and  operation  of  the  facilities  proposed  by 
 Maryland  DBM  and  discussed  herein,  as  conditioned  in  the  Memorandum  of  Agreement,  will  have  no 
 significant  effect  on  the  human  environment  (47  C.  F.  R.    1.1308(  d))  within  the  meaning  of  NEPA  and 
 Section  1.1307  of  the  Commissions  Rules,  nor  an  adverse  effect  pursuant  to  NHPA.  We  further  conclude 
 that  allowing  Maryland  DBM  to  construct  a  public  safety  tower  in  the  Ellicott  City,  MD  area  would  serve 
 the  public  interest,  convenience,  and  necessity.  Accordingly,  we  grant  the  Maryland  DBM  application,  and 
 deny  the  petitions  of  Dr.  Bright  and  Preservation  Howard  County. 


 V.  ORDERING  CLAUSES 
 26.  Accordingly,  IT  IS  ORDERED,  pursuant  to  Sections  4(  i)  and  309(  a)  of  the  Communications 
 Act  of  1934,  as  amended,  47  U.  S.  C.    4(  i),  309(  a),  Section  106  of  the  National  Historic  Preservation  Act 
 of  1966,  16  U.  S.  C.    470f,  Sections  1.1308  and  1.1312,  and  17.4  of  the  Commission's  rules,  47  C.  F.  R.   
 1.1308,  1.1312,  17.4  and  Part  800  of  the  regulations  of  the  Advisory  Council  on  Historic  Preservation,  36 
 C.  F.  R.    800.1-  800.16,  that  the  application  for  antenna  structure  registration  at  3451  Courthouse  Drive, 
 Ellicott  City,  Maryland,  filed  by  Maryland  DBM,  IS  HEREBY  GRANTED. 


 27.  IT  IS  FURTHER  ORDERED  that  the  Division  finds  the  proposed  antenna  structure  will 
 73  Memorandum  of  Agreement  at  4,  5. 
 74  See  Kunze  June  26,  2001  letter. 
 75  Id.  We  note  that  ULS  is  utilized  by  thousands  of  Commission  customers  on  a  weekly  basis. 
 76  See  36  C.  F.  R.    800.6(  a)(  1). 
 77  See  Footnote  28,  supra. 
 78  See  36  C.  F.  R.    800.6(  a)(  1)(  iii)  and  Appendix  A. 
 79  See  36  C.  F.  R.    800.6(  a)(  1)(  iv),  (b)(  1). 
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 have  no  significant  impact  on  the  Ellicott  City  community. 
 28.  IT  IS  FURTHER  ORDERED,  pursuant  to  Sections  1501.4  and  1506.6  of  the  regulations 
 of  the  Council  on  Environmental  Quality,  40  C.  F.  R.    1501.4-  1506.6,  and  Section  1.1308  of  the 
 Commission's  Rules,  47  C.  F.  R.    1.1308,  that  applicant  Maryland  DBM  is  to  provide  to  the  community  to 
 be  served  by  this  facility  notice  of  this  finding  herein  of  no  significant  impact. 


 29.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  309(  d)(  2)  of  the  Communications  Act 
 of  1934,  as  amended,  47  U.  S.  C.    309(  d)(  2),  that  the  petitions  to  deny  the  application  filed  by  Richard  D. 
 Bright  and  by  Preservation  Howard  County  ARE  HEREBY  DENIED. 


 30.  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 
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