*Pages 1--3 from Microsoft Word - 33189* Federal Communications Commission FCC 03- 277 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Friends of the Earth, Inc. and Forest Conservation Council, Inc. Various Objections and Petitions to Deny against Applications to Register Antenna Structures (FCC Form 854) with Environmental Assessments ) ) ) ) ) ) ) ) ) File Nos. A0160814 et al. MEMORANDUM OPINION AND ORDER Adopted: November 4, 2003 Released: November 10, 2003 By the Commission: Commissioner Copps issuing a statement. 1. The Commission has before it an Application for Review, filed jointly on January 30, 2002, by Forest Conservation Council and Friends of the Earth (Forest/ FoE). 1 Forest/ FoE seek review of a Memorandum Opinion and Order (Order) 2 by the Commercial Wireless Division (Division) of the Wireless Telecommunications Bureau, dismissing Forest/ FoE's petitions to deny (Petitions) against twenty- nine Applications to Register Antenna Structures on FCC Form 854 (Applications). Forest/ FoE argued that the Applications should be denied because the environmental assessments (EAs) attached to the applications did not support a Finding of No Significant Impact (FONSI) under the National Environmental Policy Act of 1969 3 and the Commission’s rules. 4 The Division dismissed the petitions to deny (Petitions) because Forest/ FoE failed to demonstrate standing. Specifically, the Division found that Forest/ FoE had not alleged sufficient facts to demonstrate that the proposed antenna structures would cause Forest/ FoE to suffer an injury, and that in light of the hundreds of EAs received by the Commission each year, efficient conduct of the Commission’s business requires that the Commission limit its attention to petitions that make specific allegations of harm to the petitioners. 2. Forest/ FoE present no arguments in their Application for Review that would lead us to change the Division’s Order. For the most part, Forest/ FoE merely repeat arguments that were addressed and 1 See Application for Review, filed by Forest/ FoE on Jan. 30, 2002. See also Oppositions to the Application for Review, filed Feb. 19, 2002, by American Tower Corporation and Louisiana Unwired LLC, Reply to the Opposition to the Application for Review, filed Feb. 26, 2002, by Forest/ FoE. 2 See In the Matter of Forest Conservation Council and Friends of the Earth, Memorandum Opinion and Order, 17 FCC Rcd. 201 (WTB/ CWD 2002). 3 42 U. S. C. § 4321. 4 47 C. F. R. § 1.1301- 1. 1319. 1 Federal Communications Commission FCC 03- 277 2 rejected by the Division. We agree with the Division that given the lack of specificity in the Petitions and the failure to show a nexus to any injury, the Petitions were appropriately dismissed. 3. Forest/ FoE also argue that their Petitions should have been accepted under the doctrine of associational standing. 5 Forest/ FoE incorrectly applies the doctrine of associational standing because the relief they request requires an individual member to show how the proposed antenna structure would directly or indirectly injure the individual. 6 The Commission requires that associations submit affidavits from local residents or competitors to meet the party in interest threshold to establish standing. 7 In each one of their petitions, Forest/ FoE failed to provide a single affidavit or letter from a local resident residing in or who visits the area where one of the proposed antenna structures would be located. 8 We therefore affirm the Division’s decision for the reasons stated therein. 4. ACCORDINGLY, IT IS ORDERED, pursuant to Section 5( c)( 5) of the Communications Act, as amended, 47 U. S. C. § 155( c)( 5), and Section 1.115( g) of the Commission's rules, 47 C. F. R. § 1.115( g), that the Application for Review filed by Forest Conservation Council and Friends of the Earth IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 5 See Hunt v. Washington State Apple Advertising Commission, 432 U. S. 333, 343 (1977). 6 Id. 7 See In Re Application of KGET( TV), Inc. for Renewal of License of Station KGET( TV), Bakersfield, CA, Memorandum Opinion and Order, 11 FCC Rcd. 4168, 4169 (1996) and Eagle Radio, Inc., 9 FCC Rcd. 836, 839 (1994). 8 See Order at 204- 205. 2 Federal Communications Commission FCC 03- 277 3 STATEMENT OF COMMISSIONER MICHAEL J. COPPS RE: Forest Conservation Council and Friends of the Earth (Application for Review). Adherence to Commission precedent on matters of standing results in my approving this item. I write separately to note that the Commission today does not find that the Forest Conservation Council and Friends of the Earth (FC/ FoE) Petition has substantive flaws. We find instead that FC/ FoE: (1) did not make the showings we need to determine that they are interested parties; and (2) that they have not alleged injury with enough specificity. This does not mean that an environmental group will always lack standing in these cases. A petitioner will be deemed to have standing so long as a sufficient showing of both injury and causation is made. While the concept of injury is fairly broad, in the instant case FC/ FoE’s claims do not provide a sufficiently specific claim of injury. A future petitioner, for example a bird watcher who lives or visits the area of a proposed tower, could assert harm if birds were killed. This person could begin to meet our requirements by filing a complaint alleging that there would be bird kills at the proposed site if the proposed tower was built. The injury prong of our test might also be met if, for example, the petitioner claims that his bird watching would therefore be detrimentally affected in the area where the proposed tower would be built. In addition, the petitioner would have to provide some evidence of causation. The petitioner would have to show, for example, a direct link between the individual antenna structures and bird kills. This could be done if the petitioner demonstrates that bird kills resulted when similar existing towers were built in other areas similar to the proposed site. The petitioner would not, of course, have to show that bird kills occurred in the exact spot proposed for the new tower, as the new tower would not yet be built. But the need for specific allegations is particularly great in this context, because, as explained in the recent Notice of Inquiry, the Commission will consider the general scientific evidence on causation to be uncertain until additional evidence is gathered in the NOI process. An environmental association, in addition to the individual citizen described above, could have standing in a future case, as well. The association similarly would have to assert harm caused by the proposed tower. For example, the association could assert harm in the form of loss of the aesthetic benefits of watching birds if birds were killed. The association would have to demonstrate that some of its members live near or visit the area near the tower (with affidavits), and allege that specific features of the tower, such as proximity to migratory bird paths, height, and lighting, would contribute to bird deaths. I hope that the Commission’s ongoing NOI on this issue will relieve some of the burden currently placed on individual citizens in providing us with detailed scientific information in these matters. These are serious matters which merit close Commission attention. 3