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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) Application of AT&T Wireless PCS Inc., ) File No. 0000003067 Chicago MTA ) ) Application of Sprintcom Inc. ) File No. 0000002915 dba Sprint PCS, Chicago BTA ) MEMORANDUM OPINION AND ORDER Adopted: June 22, 1999 Released: June 23, 1999 By the Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. The Wireless Telecommunications Bureau ("Bureau") has before it applications from AT&T Wireless PCS Inc. ("AT&T") and Sprintcom Inc. doing business as Sprint PCS ("Sprint"), whereby the applicants seek to modify their licenses, in the "A" and "D" Blocks respectively, in the broadband PCS spectrum in the Chicago, Illinois area. The applicants seek to construct for their joint use a 123-foot high transmission tower in the unincorporated Township of Orland, Illinois. Because the proposed tower might have an effect on a nearby office building known as the Yunker Schoolhouse, a structure eligible for listing in the National Register of Historic Places ("National Register"), the applications seek review under the Federal Communications Commission's ("Commission") Rules implementing the National Environmental Policy Act of 1969 ("NEPA"), and the National Historic Preservation Act of 1966 ("Historic Preservation Act"). Objections to the proposed antenna structure were filed by several entities and individuals (jointly, "Petitioners"), arguing that the proposed tower and related facilities should not be allowed under historic preservation law because they will have an "adverse visual effect" upon the Yunker Schoolhouse building, and because AT&T and Sprint failed to consider all possible alternative sites for the tower. For the reasons set forth herein, the Enforcement and Consumer Information Division ("Division"), acting under delegated authority from the Bureau, denies Petitioners' objections and grants the AT&T and Sprint applications, conditioned as set forth in the Memorandum of Agreement ("MOA") discussed below. II. BACKGROUND A. Proposed Facilities 2. AT&T and Sprint seek to locate a 123-foot monopole tower and two associated equipment sheds on property ("the Riley Property") owned by Richard Conner Riley ("Riley") in the unincorporated Township of Orland, Cook County, Illinois. The Riley property is a parcel approximately 90 feet by 70 feet, located on a street corner in an area zoned "C-3 General Commercial." The Riley property is surrounded on two sides by the paved parking area of a strip shopping mall, and on two sides by public roads. Located across the respective streets are a gas station and a bank. Near the south front of the Riley property is the Yunker Schoolhouse, a one-story block structure measuring approximately twenty-four feet by seventeen feet. This structure was built in 1910 and was used until 1957 as a one-room schoolhouse. The Yunker Schoolhouse building was restored in 1986, although not to its original condition, and is currently used as a law office. The proposed tower and shelters would be located at the rear of the property, surrounded by lawn and two asphalt-paved lots. The proposed equipment shelters are to be ten feet by twelve feet by ten feet high, approximately forty feet apart, and approximately fifty feet from the subject building. The Yunker Schoolhouse building would be separated from the tower and shelters by three trees, two approximately forty feet high and one approximately sixty feet high, that would obscure the view of the lower part of the tower from some angles. 3. Because the proposed facilities may affect a historic site eligible for listing in the National Register, Section 106 of the Historic Preservation Act, and the FCC's implementing rules require that the environmental consequences of the proposal be assessed and that the State Historic Preservation Officer ("SHPO") and the Advisory Council on Historic Preservation ("Advisory Council") be consulted and their views be taken into account. In order to assess the effect of the proposed tower, the Bureau directed the applicants to prepare an Environmental Assessment ("EA") in accordance with 47 C.F.R.  1.1311, and initiate consultation with the SHPO. As detailed herein, as a result of such consultation, mitigation measures designed to minimize the effects of the tower on the nearby eligible historic site were considered. The SHPO and the Advisory Council determined that such measures resolved the historic preservation concerns under the Historic Preservation Act by successfully mitigating the effects of the proposed tower on the nearby eligible historic site. The proposed mitigation measures ultimately were memorialized as conditions in the MOA signed by Riley, Sprint, AT&T, the Illinois Historic Preservation Agency ("IHPA" or "SHPO"), the Commission and the Advisory Council. As discussed below, the Division has considered the historic concerns and reviewed the MOA and has found that, as a result of the mitigation measures agreed to by the applicants and incorporated in the MOA, there will be no adverse effect on the nearby eligible historic site. B. Environmental Review 4. Initially, the proposed tower on the Riley property was the subject of a public hearing on Sprint's application for variance before the Cook County Zoning Board of Appeals on July 1, 1998. That application was granted. At that same time, ATC, an environmental consultant for AT&T and Sprint, contacted the SHPO seeking its opinion as to the effect of the proposed facilities on the Yunker Schoolhouse building. The SHPO advised ATC that the Yunker Schoolhouse building was eligible for listing in the National Register and that construction of the tower would have "an adverse visual effect" upon the historic structure. The SHPO concluded that "the best alternative to avoiding the adverse effect would be to seek another location for the tower." ATC also at that time prepared for Sprint and AT&T the Joint EA, which was initially completed on August 3, 1998 and revised December 2, 1998. 5. In a subsequent series of meetings and correspondence in August, 1998, involving the SHPO, ATC, Sprint, AT&T and Riley, the viability of other potential locations for the proposed facilities was considered. The SHPO found the submitted information to be insufficient and therefore requested that ATC, AT&T and Sprint supply a detailed explanation and further documentation of the efforts to which they had gone to assess alternative locations. According to the SHPO, ATC, AT&T and Sprint responded to that request by providing documentation of their efforts. Thereafter, the SHPO concluded that none of the eighteen other evaluated locations were viable alternatives to the Riley Property for the location of the tower. The SHPO then recommended that the adverse effect of the transmission facilities on the historic structure be accepted and that a memorandum of agreement be developed among the Commission, the Advisory Council, the SHPO and the appropriate concurring parties. In addition, the SHPO suggested certain methods of mitigation that it suggested should be contained in a memorandum of agreement to minimize the impact of the tower and related facilities on the Yunker Schoolhouse building. 6. On December 17 and 23, 1998, along with the Sprint and AT&T applications, copies of the MOA, signed by Sprint, AT&T, Riley and the SHPO, and the Joint EA were submitted to the Commission The MOA provided stipulations regarding the design of the tower and shelters corresponding closely to the suggestions made by the SHPO, including: 1) that the tower will be a single pole, with all utilities, waveguides, conduits and wires contained within the pole or underground to the extent possible; 2) that the shelters will replicate the appearance of an outhouse of the type originally employed at the site; 3) that no fencing will be installed; 4) that the facilities will be placed at the rearmost portion of the property so as to be visually associated with the shopping area behind the property; and 5) that landscaping will be done in consultation with the SHPO and will be designed to obscure the facility to the extent possible. On January 12, 1999, the MOA was signed by the Commission. On January 20, 1999, the MOA was approved by the Advisory Council. D. Objections to the Proposed Facilities 7. The AT&T application, containing a copy of the Joint EA and the partially executed MOA, was put on Public Notice as having been accepted by the Commission on December 23, 1998. The Sprint application, including the same documents, was likewise put on Public Notice on January 20, 1999. Objections to the licensing of the proposed facilities were received from Petitioners POCC, Orland Park, OHS, Orland Township, Scenic Illinois and five individuals. On March 5, 1999, AT&T and Sprint filed a Joint Opposition to Objection to Application ("Joint Opposition") responding to the objections filed by Orland Township, Orland Park, OHS and POCC. On March 17, 1999, POCC filed a reply to the Joint Opposition ("POCC Reply"). III. DISCUSSION 8. Petitioners' informal objectionsgenerally raise two points. First, Petitioners claim that the tower and related facilities will have an adverse visual effect on the Yunker Schoolhouse building and are thus inappropriate for this historic site. Second, they claim that there are other viable and more appropriate sites available in the area on which to place these facilities. For example, POCC provides information from persons affiliated with two of the possible alternative sites listed in the Joint EA, indicating interest from those persons in locating the tower on these properties. POCC claims that this information is in direct contradiction of the assertions in the MOA that "there is no practical alternative location [upon which] to place this communications facility," and therefore, POCC claims, this contradiction "may invalidate [the MOA.]" 9. We are convinced that the issues raised by the Petitioners were thoroughly considered by the SHPO, the Advisory Council, and the applicants. Moreover, as the record demonstrates, the process of considering these matters afforded members of the public adequate opportunity to receive information and express their views and, indeed, the views of many of the Petitioners were considered during the course of the process. First, with regard to the issue of examination of alternatives, we note that when the SHPO determined on July 17, 1998, that the undertaking would have an adverse visual effect on the Yunker Schoolhouse building, the SHPO suggested that an alternative site be found. AT&T and Sprint responded with the Joint EA and evidence that some eighteen other sites had been evaluated and found to be unavailable or otherwise not viable for technical and other reasons. 10. The SHPO informed the applicants on August 27, 1998, that the evidence submitted would "not be sufficient documentation of consideration of other alternatives without a written paper trail." Therefore, the SHPO requested to see the offering letter from AT&T or Sprint to each of the owners of potential alternative properties and each owner's written notice of rejection. Sprint responded with a letter explaining that "no proposal letters from the service providers or letters of non-interest from the property owners are ever sent or received." Sprint explained that the site acquisition process moves quickly and such written procedures are rarely used. Sprint also reiterated the reasons why the eighteen sites were either not viable or not available. Thereafter, on October 5, 1998, the SHPO reported that over the preceding months AT&T and Sprint had provided the appropriate documentation for assessment of alternative locations, and that of the eighteen potential alternative sites evaluated, the SHPO had concluded that "none appear to be viable locations due to either radio frequency problems or lack of owner interest." 11. With regard to the asserted contradictory evidence offered by POCC, the record does not support POCC's assertions. First, POCC states that the Orland Township Highway Department garage at 110125 So. Wolf Road is a viable alternative, contrary to the representations of AT&T and Sprint. POCC provides letters purportedly indicating that the Township was amenable to the tower but Sprint rejected the proposal only because the Riley property had already been chosen. Records submitted by Sprint, however, suggest that this site was disapproved by the Sprint RF Regional Engineer, not because the Township was not receptive, but because the site's RF (radio frequency) coverage characteristics were unacceptable from an engineering standpoint. Second, POCC rejects as untrue Sprint's assertion that the Orland Park Fire Station #3, located at 15100 S. Wolf Road, was rejected as a site by the Fire Chief. POCC quotes Robert Sullivan of Orland Park as saying that the Village "may, in fact consider the tower at this site due to the fact that there is an existing tower on the property." While it is true that Sprint originally represented to the SHPO that the Fire Chief had rejected a tower at this location, it is not clear when this representation was made. In the Joint Opposition, Sprint and AT&T represent that although an agreement to use this site was in fact reached with the Fire Protection District, that agreement was rejected by the Village of Orland Park, including by Village Manager, Bob Sullivan, apparently the same Mr. Sullivan on whose positive statements about accepting the tower POCC relies. 12. POCC's assertions about the viability and availability of alternative sites are thus called into question. We need not, however, resolve each dispute in the record over these issues. The assessment of alternatives in an EA, while important to the historic evaluation process, need not be exhaustive or exacting; only a reasonable choice of alternatives is required. Therefore, Sprint and AT&T were not required to exhaust every possible alternative site in order to meet this test. Similarly, Sprint and AT&T were not required to explore and prove the lack of availability or viability for each of the alternatives suggested by petitioners in order to demonstrate a reasonable assessment of alternatives. We conclude that in this case, based upon the facts before us, including the number of alternatives assessed by the applicants, the extra effort by the SHPO to confirm the lack of viable alternatives and the eventual determination reached by the SHPO based upon its evaluation and expertise, that the analysis, procedure and ultimate choice were reasonable. After determining that no practical alternative to this tower existed, the SHPO recommended that the adverse effect be accepted and suggested that a memorandum of agreement be developed among the parties. 13. The record further indicates that the public was afforded a full opportunity to express their views in this process. As early as the day of the hearing before the Cook County Zoning Board of Appeals, petitioner Orland Township submitted to the Zoning Board of Appeals a letter signed by Orland Township Trustee Shirley Fazio objecting to the granting of the variance. The zoning hearing and resulting grant of variance were the subject of local press coverage, as evidenced by an article in a local newspaper, The Regional News, dated July 16, 1998, fully describing the project and some of the local opposition. The article quotes Trustee Fazio and the Planner for petitioner Orland Park, Rod Zenner. In addition, the article describes the consideration process, the role of the SHPO, and the further proceedings yet to be commenced before the Commission. In addition, all the correspondence from the SHPO to ATC in this matter was copied to Mr. Zenner in his capacity with an entity referred to as Orland Park Historic Preservation. This record is replete with evidence that individuals and organizations representing the public in Orland Township were well aware of this matter and had a full opportunity to participate. 14. The record discloses that the Yunker Schoolhouse building is located in a commercially zoned area, bounded on two sides by a small strip shopping mall containing restaurants, shops and professional offices with related electrically lighted signage and pole-mounted lighting and utilities. The property is bounded on two other sides by municipal streets, across which are located a gas station and a bank. It appears, therefore, that this site is already visually affected by much that is not of historic character, including by modern construction, by asphalt paved parking areas bordering on two sides as well as on the rear of the Riley Property itself, and by metal utility poles and above-ground utility wires. Within twenty-five feet of the schoolhouse building is a metal pole supporting a traffic semaphore over Wolf Road. In the rear of the property where the tower will sit, the property contains another utility pole, a telephone pedestal and a telephone utility box. The SHPO suggested several stipulations that it believed should be included in the memorandum of agreement in order to minimize the adverse visual effect of the tower and facilities. The SHPO suggested that the tower be located at the rear of the lot, in order to create a separation between the historic building and the tower; that the equipment shelters be designed in consultation with the SHPO in accordance with the Secretary of the Interior's Standards for Rehabilitating and Guidelines for Rehabilitating Historic Buildings; that appropriate landscaping be designed in consultation with the SHPO; and that no fencing be installed. Each of these recommendations, as well as certain additional provisions, were included in the MOA. Therefore, we find nothing in the record that causes us to challenge the conclusions of the SHPO, concurred in by the Advisory Council, that under these circumstances the adverse effect of the proposed tower on the Yunker Schoolhouse building will be eliminated or reduced to a minimum by the mitigation measures required by the MOA. 15. In the present case, Petitioners' objections were thoroughly considered by the SHPO and addressed in the MOA and appropriate mitigation measures were approved by the Advisory Council. Moreover, the record demonstrates that adequate opportunity for members of the public to receive information and express their views was afforded during the consideration process leading to the execution of the MOA. Thus, through the process described above, the Commission has taken into account the effect on the Yunker Schoolhouse building of the tower and related facilities proposed for the Riley Property. In addition, the SHPO and the Advisory Council have been consulted and those agencies have agreed to the proposed facilities as conditioned in the MOA. Accordingly, for the reasons given above, we conclude that although the proposed tower and related facilities on the Riley Property will have some effect on that site, because of the mitigation measures required by the MOA, that effect will have been eliminated or reduced to a minimum so as to render such effects insignificant and to allow the undertaking to proceed under the provisions of the Historic Preservation Act, and the Advisory Council's and the Commission's rules. By signing the MOA, the SHPO and the Advisory Council affirmed their conclusion that the historic preservation issues, including those ultimately raised by the various petitions, had been fully addressed. IV. CONCLUSION 16. We find from an evaluation of the entire administrative record in this matter, for the reasons stated above, that the construction and operation of the facilities proposed by Sprint and AT&T for the Riley property will have no significant effect on the human environment within the meaning of NEPA and Section 1.1307 of the Commission's Rules. 1. We further conclude, given the lack of significant effect from this undertaking on the human environment and the need for these facilities to provide competitive PCS services to persons and businesses in the Orland Township area, that allowing AT&T and Sprint to proceed with the construction of the proposed tower, subject to the terms of the MOA, would serve the public interest, convenience and necessity. Accordingly, the applications of AT&T and Sprint should be and are granted and the objections of Petitioners should be and are denied. V. ORDERING CLAUSES 17. Having fully considered AT&T's and Sprint's applications and pleadings, Petitioners' objections and the pleadings and record in this matter, 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) and 309(a), Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C.  470f, Sections 1.1308 and 1.1312 of the Commission's Rules, 47 C.F.R.  1.1308 and 1.1312, and Part 800 of the regulations of the Advisory Council on Historic Preservation, 36 C.F.R.  800.1-800.15, that the applications for Mobile Radio Service authorizations filed by AT&T Wireless PCS Inc. and Sprintcom Inc. dba Sprint PCS described herein ARE HEREBY GRANTED, subject to applicants' compliance with the terms provided in the Memorandum of Agreement identified herein. 18. 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), and Section 1.41 of the Commission's Rules, 47 C.F.R.  1.41, that the petitions filed by the Township of Orland, the Village of Orland Park, the Orland Park Historical Society, the Palos-Orland Conservation Committee, Scenic Illinois, Mary Correa, Diane T. VanEck, Karen S. Buchler, Mare Adeszko, and William A. VanEck for informal Commission action seeking to have the Commission deny the subject applications filed by AT&T and Sprint ARE HEREBY DENIED. 19. 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 applicants Sprint and AT&T are to provide to the community to be served by these facilities notice of the Commission's finding herein of no significant impact. 20. 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 Catherine W. Seidel Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau