Federal Communications Commission DA 97-1110 in Reply Refer To

Federal Communications Commission DA 97-1110

Federal Communications Commission Washington, D.C. 20554

In reply refer to: 1800B3-MFW May 23, 1997 Released: May 29,1997

Mr. David S. Gillespie, Director New York State Office of Parks, Recreation, and Historic Preservation Peebles Island, P.O. Box 189 Waterfbrd, New York 21288-0189 Howard J. Braun, Esq. Rrsenman & Colin Suite 200 1300 19th Street, N.W. Washington, D.C. 20036 Margot Polivy, Esq. Renouf &Polivy 1532 Sixteenth Street, N.W. Washington, D.C 20036 In re: WFUV(FM) Bronx, New York Fordham University BMPED-940509JC Environmental Assessment Emergency Petition for Order to Show Cause or, Alternatively, for Reconsideration Dear Mr. Gillespie, Mr. Braun, & Ms. Polivy: This letter refers to the above-captioned request for extension of time to construct the authorized facilities of station WFUV(FM), Bronx, New York ("WFUV"). It provides our conclusions pursuant to Section 106 of the National Historic Preservation Act.

Based on the record before us, we conclude that, at least with respect to the areas near the Enid A. Haupt Conservatory at the eastern border of the New York Botannical Garden ("Garden"), the

6774 ______Federal Communications Commission DA 97-1110 WFUV tower will adversely affect the Garden.1 Specifically, we conclude that it will alter the Garden©s setting by introducing a visual element out of character with the property and its setting under 36 C.F.R.. §800.9. We also conclude that, with respect to other nearby historic properties mentioned by WFUV in Section V.C of its EA, and likewise with respect to the Bronx Zoo, the tower will have no Section 106 "effect"2 Accordingly, pursuant to 36 C.F.R. §800.5(e), we will initiate a formal consultation with the New York State Office of Parks, Recreation, and Historic Preservation ("SHPO") - as well as the applicant, the Garden, and other commenting parties to seek ways to. avoid or ameliorate the effects of the WFUV tower on the Garden. Because the Advisory Council on Historic Preservation ("Council") has already demonstrated its interest in participating in such consultation,3 and because Council participation is mandatory in consultations regarding protection of National Historic landmarks such as the Garden,4 a representative from the Council will be invited to attend any meetings or participate in any telephone conferences. In order to facilitate a productive formal consultation process, we propose, prior to the formal consultation meeting required under 36 C.F.R. §800.5(e), to convene an initial session involving only WFUV, the Garden, the New York SHPO, and the Council. This session has tentatively been scheduled for Wednesday, June 18,19% at 10:00 a.m. at the Washington, D.C offices of the Federal Communications Commission, 1919 M Street, N.W., Washington, D.C 20554. At this preliminary session, which will be conducted pursuant to the Commission©s Alternative Dispute Resolution program,5 we will explore the possibility of mediating subsequent discussions regarding the WFUV tower©s effect on the Garden. The initial session and any subsequent mediation sessions will be chaired by Roberta L. Cook of the Commission©s Office of the General Counsel, Litigation Division, who is trained in the mediation process. The goal of the initial mediation session and any subsequent mediation sessions will be to facilitate the parties© fashioning a settlement among themselves; Ms. Cook will not function as a judge, will not issue a decision, and will not participate in the decisonmaking process regarding the WFUV tower. All discussion during the initial mediation session, as well as any subsequent mediation sessions that may occur, will be confidential and will not be a part of the record in this proceeding.

©Sss Attached Findings of Fact/Conclusions of Law. 2M. This letter constitutes notification of the Commission©s finding with respect to these properties pursuant to 36 C.F.R. §800.5(b). Any impact of the tower on these properties will receive no further consideration unless the New York state historic preservation officer objects within IS calendar days of the date of this letter. Should the officer register such a timely objection, we will conduct additional proceedings under Section 800.5 in the future with respect to any pertinent property. The consultation meeting called below will concern only the Garden.

3S££ Letter to William F. Caton. Acting Secretary, from Don L. Klima. Director Eastern Office of Review. Advisory Council on Historic Preservation, dated July 25, 1995.

43§s36C.F.R.§800.10(a).

5See Initial Policy Statement and Order in GC Docket No. 91-119, 6 FCC Red 5669 (1991).

6775 Federal Communications Commission DA 97-1110 At the conclusion of the mediation process, we will convene the formal consultation with the four parties listed above and any other interested party. At this meeting, we will present the terms of any agreement which resulted from the mediation sessions) and continue the discussion for the benefit of any interested parties choosing to attend the consultation. Our ultimate goal in formal consultation will be to reach an accord that can be memorialized in a Memorandum of Agreement, which we can then submit to the Council under 36 C.F.R. §800.6. Because we believe that their presence will foster efficient discussion, we strongly suggest that WFUV and the Garden be represented both at the mediation session(s) and at the formal consultation by their principals and not in absentia by counsel; while of course counsel are invited to attend, we believe mat the most meaningful discourse will occur if the interested parties themselves are present We also request that, if an interested party©s principals will be unable to attend, we be so informed within two weeks from the date of this letter; any person representing the principals of an interested party should accompany such notification with an affirmative representation regarding specifically when the mediation was discussed with the principals and why they will not attend We will shortly send to each party a letter detailing Ms. Cook©s plan for the mediation sessioa

Sincerely,

Linda Blair, Chief Audio Services Division Mass Media Bureau Attachment

6776 ______Federal Communications Commission _____DA 97-1110 FINDINGS OF FACT/CONCLUSTONS OF LAW

Findings of Fact

1. At issue is whether the WFUV radio tower will have an adverse efifect on a historic property. The Commission requested WFUV to submit an Environmental Assessment ("EA") on February 25, 1995; WFUV submitted the EA on May 3, 1995. 2. The authorized facilities. WFUV(FM) currently operates from an antenna mounted atop Keating Hall on the Fordham University ("Fordham") campus, with technical facilities of 50 kW effective radiated power ("ERP") at 216 feet antenna height above average terrain. These facilities exceed the minimum but are substantially less than the maximum allowable Class B facilities (50 kW @ 150 meters [492 feet] HAAT) under 47 C.F.R. §73.211. The station claimed to be experiencing "multipath" distortion and signal attenuation with its current facilities. 3. WFUVs Keating Hall operation substantially exceeds the Commission©s Radio Frequency Protection Guidelines. See 47 C.F.R. §§1.1307(b), 1.1310; se£ also, staff RF evaluation, submitted as part of Enclosure 3 to Commission©s September 5, 1995 response to the Garden©s FOIA request. WFUV therefore cannot receive a license renewal at that site. See WFUV license renewal application, File No. BRH-910129VP and Letter to Fordham University, reference no. 8900-LJY (Chief, Audio Services Division, April 17, 1991), copies of which are also submitted as part of Enclosure 3 to the Commission©s September 5, 1995 FOIA request response. 4. Additionally, Fordham has been advised that there is some structural deterioration of Keating Hall. Full assessment and repair of the deterioration, while not critical at this point, will necessitate the removal of the WFUV antenna and supporting tower, at least temporarily. (EA at §IV-2, Appendix (Engineer©s Report); WFUV Reply, "Comments and Responses," at P. 6.) 5. WFUV has received a construction permit (File No. BPED-831118AL, granted on December 7, 1992) to operate from a site on the western edge of campus with facilities of 50 kW at 480 feet HAAT. This permit authorizes WFUV to construct a 480-foot antenna tower. It will increase the station©s service contour by 2,271 square km. (WFUV application, June 22, 1992 amendment) and bring a first noncommercial educational FM radio service to 153,000 persons. (Polivy letter, March 3, 1996). 6. WFUV has partially constructed the tower, at a cost to Fordham University of approximately $750,000. Two of the three support legs currently reach a height of 240 feet; the third has reached 260 feet. The tower is constructed of grey galvanized steel and will be equipped with medium-intensity white lights for daytime use and standard red obstruction lighting for nighttime use. (EA, at S-l-2). The width of the tower©s three faces is 50 feet at the bottom and will taper to 12 feet at 380 feet above ground level and ultimately to 4 feet at 440 feet above ground. 7. The completed tower will have no exterior ladders, cables, guy-wires, or other appurtenances, and at this point will support only the WFUV antenna. (Reply, Comments and Responses, at p. 5, response to Comment 12.)

6777 ______Federal Communications Commission DA 97-1110 8. The tower is approximately 150 feet from the West Gate of the New York Botanical Garden ("the Garden"), separated primarily by a four-lane undivided roadway, the Dr. Theodor Kazimiroff Boulevard. The tower is approximately 400 feet from the nearest point of the Enid A. Haupt Conservatory, which is located in the northwest corner of the Garden. (Garden Comments, at 4; WFUV Reply, Comments and Responses, at 2-4.) 9. The affected area. The Garden, one of the largest and most significant botanical gardens in the United States is a National Historic Landmark. It is also listed in the National Register of Historic Places, primarily for its educational and scientific value, i.e.T- its outstanding role in botanical research. See National Register of Historic Places Inventory Nomination Form, submitted, among other places, as Exhibit B to the Garden©s August 4, 1995 "Comments" on WFUVs Environmental Assessment ("EA"). It was created by an act of the New York State legislature signed into law by Governor David B. Hill in April of 1891 and is currently a privately endowed nonprofit corporation; maintenance costs are funded by the City of New York. The Garden also contains the largest herbarium in the United States, sixteen specialty gardens, a pinetum with over 200 species of evergreens, and a 40-acre virgin hemlock forest on its 230 acres. The Nomination Form also indicates that "the appearance of the Garden is still essentially that of its youth," the architectural integrity of the buildings and grounds is "extremely good" and, while new buildings will be added, the guiding principle of the Garden©s directors is to preserve the appearance and spirit of its founders. However, the nomination form does not give any historic or other significance of the nature of the area surrounding the Garden. 10. The Enid A. Haupt Conservatory, completed in 1902, is one of the earliest extant examples of "glass houses" in the United States. The Conservatory is described as being a graceful neo- Italian Renaissance design composed of prefabricated metal parts supporting a glass structure creating a lightweight and transparent structure. It is 512 feet long and contains an 85-foot-high central dome. The Conservatory is not listed in the National Register of Historic Places but, according to the unsupported (but unchallenged) claim of the Garden©s counsel, is eligible for such listing. It has been designated as a New York City Landmark. The Findings of the New York City Landmarks Preservation Commission, dated October 16, 1973, indicate that the Conservatory has a special character, special historical and aesthetic interest and value as part of the development, heritage and cultural characteristics of New York City . . . The Commission [finds] that [the central, circular Palm House] has an unusual and boldly expressed structural system, that it displays handsome architectural ornament characteristics of the turn of the century, that it is well-related to its natural park surroundings, and that it continues to serve its original function. Findings of New York City Landmarks Preservation Commission, Exhibit 2 appended to the Garden©s September 27, 1994 "Emergency Petition for Order to Show Cause or, Alternatively, for Reconsideration," at 2. 11. Local zoning actions. In June of 1994, with the tower approximately 50% completed, the New York City Department of Buildings issued a "Stop Work Order" stating that the structure

6778 i______Federal Communications Commission DA 97-1110 constituted an unpermitted obstruction within the sky exposure plane contrary to Section 24-522 of the New York City Zoning Resolution. The order was affirmed on further review on September 27, 1994, but rescinded on November 17, 1994 in response to Fordham©s amended plan, which proposed moving the tower approximately 25-50 feet back from its current location.

12. Fordham subsequently appealed the Department of Buildings© finding that the WFUV tower could be an "unpermitted obstruction"; this appeal was denied. Notwithstanding this denial, the local zoning authority held that the construction of a broadcast tower on Fordharris campus was a "proper accessory use" of the property. The Garden©s subsequent appeal of this determination was denied. In re Application of the New York Botannical Garden. No. 60506 (Supreme Court of New York, Apellate Division, First Department, April 15, 1997). Thus, WFUV currently has two alternatives under the local zoning authority: either reduce the tower height to 380 feet at its current location, or move the tower back 25-50 feet, at which spot it may be constructed to the authorized height of 480 feet. (Polivy letter, March 3, 1996).

13. The Commission has ordered WFUV not to continue with construction of the tower until it, in consultation with the proper state and federal authorities, resolves the historic preservation issue. (February 1, 1995 letter from the Chief, Audio Services Division, Reference 1800B3- MFW.)

14. Visual impact of the FCC-authorized facility. The tower is currently visible and when completed will be visible from the vicinity of the Conservatory. The completed tower will rise well above the Conservatory. (EA, Figure V.D-3, V.D-8; Garden Comments, Photo/simulations.)

15. The completed tower will be visible from the Daffodil Hill area of the Garden. The 30-story Keith Tower residential building is also partially visible at the horizon from the Daffodil Hill area Keith Tower is shorter, and thus less exposed, but it is wider and more solid-looking than the tower. (EA, Figure V.D-10; Garden Comments, Photo/simulations.) The view of Keith Tower is much more pronounced from the trails south of Daffodil Hill, nearer the building. (EA, Figure V.D-4.)

16. The completed tower will be visible from the Rose Garden area of the Garden, as is the Keith Tower. Both structures are approximately equidistant from the Rose Garden area, once again with the WFUV tower being taller but more lightweight and transparent, while the Keith Tower is shorter but broader and more substantial. (EA, Figure V.D-11; Garden Comments, Photo/simulations.) 17. The completed tower will be intermittently visible from various points along the walkways throughout the Garden, sometimes shielded by trees and foliage. (EA, Figures V.S-2, V.S-3.) 18. The completed tower will not be visible from the Garden©s museum building. (EA, Figure V.S-1.) 19. At the edge of the Garden, other modern structures are clearly visible. For example, across

6779 ______Federal Communications Commission DA 97-1110 the Dr. Kazimiroff parkway are the university s metal bleachers and broad, three-story Lombardi Memorial Center housing the University©s indoor athletic facilities. (EA, Figure V.D-2). Across Fordham Road south of the Garden is a dense but low-lying commercial district. North of the Garden, also across Kazimiroff Boulevard, is the street-level Metro North train track, behind which are several-story high industrial/storage buildings. Beyond these (across Webster Avenue) are residential buildings including the 38/40-story Tracy Towers. (EA, Figure V.D-4.; amendment entitled "Urban Neighborhood Context," dated January 11, 1996.) 20. Local controversy. The issue of historic preservation in connection with the WFUV radio tower was not raised until June 30, 1994, when the Garden objected to the partially completed tower. The Garden also filed an informal objection to WFUVs application (File No. BMPED- 940509JC) for extension of time to completed construction on September 27, 1994. 21. There is currently a local controversy regarding whether or not this project would have an adverse effect on the Garden. 22. Among those supporting the WFUV project, apart from the University©s administration and individual trustees, are musician Christine Lavin as well as individual business people and private citizens. They indicate that they do not favor me termination of WFUVs excellent and diverse programming. Additionally, several commenters express concern that disallowing the WFUV tower will "send the wrong message" to investors and potential investors in Bronx development efforts. (WFUV Reply, Appendix A; individual letters.) 23. Among those opposing the WFUV project, apart from the Garden, are The New York Landmarks Conservancy, The National Trust for Historic Preservation, The Riverdale, Nature Preservancy, The New York State Historic Preservation Office, The Parks Council, The Municipal Arts Society of New York, the New York City Landmarks Preservation Commission, and several private citizens and New York legislators. Their comments range from the opinion that the WFUV tower is and will be an "eyesore" to the opinion that WFUVs Environmental Assessment was inadequate and the station should be required to submit a full Environmental Impact Statement (Garden Comments, Exhibits J-U.) 24. Among the local media, The Riverdale PressT New York Newsday. and The New York Daily News have opposed the WFUV tower in editorials run on July 21, 1994, November 28, 1994, and May 16, 1995, respectively. (Garden Comments, at Exhibits E, F, H.) 25. Bronx Borough President Fernando Ferrer has (on September 14,1995) changed his opinion from believing that WFUV should prepare an Environmental Impact Statement to a belief that the Commission "can make a reasoned determination without such a study." (Enclosure to Rev. Joseph A. O©Hare letter dated September 25, 1995.) 26. Alternate sites. WFUVs difficulties in finding an acceptable means of improving its facilities are legioa The station originally filed an application on November 18,1983, but it was not granted until December 7,1992 as part of a multi-station facilities improvement/interference mitigation plan for the metropolitan New York City area. See September 30,1992 letter. During

6780 _____ Federal Communications Commission DA 97-1110 the pendency of its application, Fordham amended its proposal to change its transmitter site (among other changes) three times, ultimately proposing the currently authorized site on June 22, 1992. (September 30, 1992 letter.)

27. In its EA, WFUV lists and summarizes 27 alternate sites which it considered and rejected for various reasons. EA, Section IV-C, Table IV-1. When the Garden challenged the sufficiency of the summary discussion in its August 4 Comments, WFUV provided extensive discussion (with documentation, as available) in Appendix D to its January 16, 1996 Reply. The reply also included discussion of one site erroneously omitted from the EA section on alternate sites and several sites which it discovered and investigated subsequent to the submission of the Garden©s Comments.

28. Of these 27 sites:

10 were eliminated from consideration either because WFUV was outbid for the site in a "restricted public auction" sale (site # 3), or because the site owner or Bronx Economic Development Corporation (or its predecessor, the Public Development Corporation) rejected the proposed use (site ##©s 7, 8, 9, 10, 11, 19, 20, 23, 24).

One site (site #2) was eliminated because, while it was zoned for manufacturing use, it was contiguous to a "rehabilitated" plot of land zoned for multi-family residential use. The New York City Department of Real Estate ("DRP") and the EDC informed WFUV that it did not favor development at this point, and refused to release the parcel of land for auction.

5 were eliminated because development would, in the station©s view, be prohibitively expensive (in terms of construction or provision of utilities) (site ##*s 1, 5, 26, 27) or because the site owner did not accept WFUVs bid for the property (site # 15).

3 were eliminated because WFUV was advised by Mr. John Alien, its FAA consultant, that the necessary tower height would not be approved by the FAA (site ##©s 16, 17, 18). 2 were eliminated due to both the cost of development and because the site bordered an exclusive residential neighborhood, whose ire the station did not wish to provoke (site ##©s 21, 22); WFUV also claims that these sites are outside the area outlined by the station for protection of other broadcast frequencies. 2 sites were eliminated for radiation exposure concerns under the Commission©s ANSI standards: site # 14 was eliminated because the site would not meet Commission radiofrequency radiation exposure standards or FAA electromagnetic interference ("EM") standards as currently configured; the lessor also refused to consider building a taller antenna tower on the building to alleviate some of the exposure concerns. Site # 25, on Fordham©s campus, was eliminated due to the possible exposure to radiation of students and adjacent residential property owners as well as to avoid land use and property value

6781 .______Federal Communications Commission DA 97-1110 issues.

29. The Garden did not specifically challenge the elimination of these 23 sites. However, applying its own matrix of site-screening factors to 13 of the eliminated sites,1 the Garden concluded that four sites (site ##©s 1, 4, 6, 13) were viable.2 The Garden also charged that additional sites, as well as alternative tower heights and antenna configurations should be evaluated in terms of specific goals to be attained by WFUVs modification of facilities (which, it claims, were not identified in the EA) for additional screening purposes. 30. In its Reply comments, WFUV indicates that these four sites were rejected for the following reasons. Site # 1 was rejected as non-viable due to a combination of the following factors: (1) the initial asking price for the land was considered "exorbitant" (approximately $750,000); (2) access to utilities would be difficult and expensive; (3) the New York City Fire Department opposed development of property not "fronting" a mapped street, which in this case would have to be constructed; and (4) the city of New York was planning to condemn part of the property for an easement to ensure continued access to the site for purposes of repairing the Melrose Avenue Viaduct bridge over the rail yards. Site # 4 also was rejected due to perceived excessive development costs involved in the requisite (pursuant to sale restrictions) removal of several fences and "a tremendous amount" of rubble from the site. Additionally, the site©s isolation, which gave rise to security concerns, and the site©s uneven topography contributed to WFUVs decision to reject this site, even though it was closer to Manhattan and thus theoretically more desirable from a signal transmission standpoint Site #6 was rejected, after lengthy consideration, for several factors: (1) the process of securing approval from Community Board #3 took over one full year, (2) security concerns regarding vandalism and the "attractive nuisance" its tower might pose to neighboring schoolchildren; (3) the possibility that development of the site would require yet another approval, this time from the New York City Board of Standards and Appeals, since the tower might not constitute a true "accessory use" of the permit; and

1-nie Garden©s two-level site-screening analysis is described in its August 4,1995 Comments, at Part fl, pages 13-18. The first level involved a "fatal flaw" analysis involving the following factors: (1) lack of precise site location; (2) compliance with FAA and FCC boundaries; (3) site size; (4) compliance with ANSI standards with respect to existing and future development based on zoning regulations. Eight of the 13 sites studied survived this analysis. The second-level screening tested each of the eight sites against various environmental criteria (land use, impact on neighborhood cliaracter/natural features/historic resources) and assigned numerical values and rankings to the sites. 2The Garden©s analysis was predicated on a 300-foot tower which, it claimed, would (1) be approximately 80 feet taller than the facilities currently in use by WFUV and thus improve the station©s coverage; (2) present a more conservative constraint with respect to ANSI standards; and (3) have less of a visual and land-use impact, since it \vas nearly 200 feet lower than the currently authorized tower.

6782 Federal Communications Commission DA 97-1110 (4) the insistence of a neighboring business that WFUV assume primary liability for any interference to its radio-controlled manufacturing activities, regardless of what other services used the tower. Site # 13 was removed from consideration because, in WFUVs view, it was too small an area on which to construct an antenna and transmitter building. Additionally, development plans included residential housing a block away from the proposed site, thus giving rise to the concerns regarding locating the tower in a residential area discussed above. 31. Subsequent to the filing of the Garden©s August 4 comments, WFUV recalled one site which it had investigated but not listed. It also considered and rejected three additional sites which were brought to its attention by governmental entities or realtors: Tech II Building on the Bronx Community College Campus. This site carries the broadcast antenna for New York University©s campus radio station. Its use was rejected based upon the opinion by WFUVs engineering consultant that the site would not provide sufficient protection to stations on adjacent frequencies to the west and southwest of the WFUV contour. It was essentially excluded as being oitside the FCC-established boundary, i.e.. the area in which unacceptable levels of interference to nearby stations would be prevented pursuant to the September 30,1992 Audio Services Division letter. This decision by Fordham is not challenged by the Garden. Exhibit D to WFUV Reply, at p. EM. Block 2391/Lot 7 (Park Avenue at 183d Street near [10 blocks] site #3). WFUV rejected this site because of its irregular shape and location in the midst of a residential community (although it was zoned for rnanufacturing purposes). It also had a low elevation (and would thus require a higher tower to effectuate a coverage improvement). M-, at p. D-15. Block 3021/South of Cross Bronx Expressway. The site was eliminated from consideration due to lack of utility availability and lack of site access (the site is said to be "landlocked" by the Bronx River, Amtrak Railroad tracks, and New York City Transit Authority property). Additionally, WFUV noted concerns voiced by Local Community Board 9 about placing a tower adjacent to a residential community. The concerns were exacerbated by the fact that, since the site was at a lower elevation than the authorized site, a taller tower would need to be built to achieve a similar coverage improvement. Hart Island. This site, suggested by the Garden, would place the proposed tower on an island in Long Island Sound. It was rejected because there was no access other than boat to the site; WFUV concluded that development of and ongoing operation from this site would thus be prohibitively expensive. 32.© Mitigation. WFUV indicates that it will undertake the following mitigation measures: (1) landscaping around the tower to reduce the visual presence of its base to close viewers; (2)

6783 ______Federal Communications Commission DA 97-1110 painting the tower with a "camouflage" pattern; and (3) planting large trees in front of the Conservatory to screen views of the tower from areas near the Conservatory. Due to the angle of viewing, WFUV indicates that the trees need not be as tall as the tower to screen it effectively. (EA, at Section V.F.I; WFUV Reply, at 29.) This view is consistent with WFUVs position that the attention of visitors to the Garden and Conservatory will be focused down - toward the flora which creates and maintains visitor interest - rather than upward at the broadcast tower.

Legal Considerations. 33. Commission requirements. The Commission must evaluate proposals which may have a significant effect on the quality of the human environment. This includes facilities which may affect sites or structures which are listed or eligible for listing in the National Register of Historic places. 47 C.F.R. §1.1307(a)(4). In undertaking such evaluation, the Commission shall solicit and consider the comments of the State Historic Preservation Officer ("SHPO") and the Advisory Council on Historic Preservation ("Council"), in accordance with their established procedures. 47 C.F.R. §1.1308(b), Note. 34. If, upon review of the EA and completion of any mandatory consultations, the Commission finds that the proposal will have a significant effect upon the quality of the human environment, it will inform the applicant and provide it an opportunity to amend its application to reduce, minimize, or eliminate environmental problems. 47 C.F.R. §§1.1308(c), 1.1309. 35. If the environmental problem is not or can not be mitigated or eliminated, the Commission will undertake preparation of a Draft Environmental Impact Statement. 47 C.F.R. §1.1308(c). 36. Until the Commission makes the determination that the environmental problem can not be mitigated or eliminated, the Garden©s insistence (see August 4, 1995 Comments, at 2-3) that an Environmental Impact Statement ("EIS") be prepared appears to be premature. 37. Council procedures. Under the Council©s established procedures, the Commission is to: (1) apply the Criteria of Effect to determine whether or not the proposed facility will have an "effect" on an historic property; and, if so, (2) apply the Criteria of Adverse Effect to determine whether or not that effect will be "adverse." 36 C.F.R. §800.5. 38. If there is such an adverse effect, the Commission shall notify the Council and consult with the SHPO to seek ways to avoid or reduce the effects. The Council may participate in such a consultation. 36 C.F.R, §800.5(e). If the consultation involves a National Historic Landmark, the Council must participate. 36 C.F.R. §800.10(a). 39. An undertaking has an "effect" on a historic property when the undertaking may alter characteristics of the property that may qualify the property for inclusion in the National Register. Alteration of a property©s setting may be relevant depending on a property©s significant characteristics. 36 C.F.R. §800.9(a). 40. An effect is considered "adverse" when it may diminish the integrity of the property©s

6784 ______Federal Communications Commission DA 97-1110 location, design, setting, materials, workmanship, feeling, or association. Adverse effects include the alteration of a property©s setting when that setting contributes to the property©s qualification for the National Register or the introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting. 36 C.F.R. §800.9(b). 41. Concerns under NEPA/NHPA. As noted, the Commission©s environmental rules were promulgated to give effect to the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§4321-4335. See Implementation of the National Environmental Policy Act of 1969, ("NEPA Implementation"^ 49 FCC 2d 1313 (1974). Commission review under NEPA is undertaken in cases where any "Commission action may or will have a significant effect on the quality of the human environment" seg 47 C.F.R. §1.1303, which includes communications facilities which may affect districts, sites, buildings, structures or objects, significant in American history, architecture, archaeology or culture, which are listed in the National Register of Historic Places or are eligible for such listing. NEPA Implementation. 49 FCC 2d at 1320, 47 U.S.C. §1.1307(aX4). The NHPA "Section 106 procedures" are triggered when a "federal undertaking" will have an adverse effect on the quality of the human environment. Federal courts have held the "federal action" and "federal undertaking" standards to be equivalent McMillan Park Committee v. National Capital Planning Commission. 759 F. Supp. 908,915 n. 8 (D.D.C. 1991); Vieux Carre Property Owners. Residents, and Associates, Inc. v. Brown. 875 F.2d 453, 464-65 (5th Cir. 1989), gejl. den. (1990). Conclusions of Law 42. Construction of the WFUV tower, which requires FCC approval and will be funded in part by a grant from the National Telecommunications Information Administration, is a "federal undertaking" which triggers NHPA Section 106 analysis and Commission review under NEPA pursuant to 47 C.F.R. §1.1303. 43. Public interest benefits to completion of the WFUV tower. While they are not relevant to the issues of whether the WFUV tower will have an "effect" on the garden and whether that effect will be "adverse" under 36 C.F.R. §800.9, there are substantial public interest benefits which would derive from completion of WFUVs authorized construction. Among these are: (1) eliminating a radiation hazard created by the station©s existing operation; (2) improving both the signal quality and coverage area of WFUVs broadcast service; (3) providing a first noncommercial educational FM service to 153,965 persons; and (4) maximizing the efficient use of the scarce noncommercial educational FM broadcasting spectrum in the New York City metropolitan area by permitting WFUV (as well as 4 other existing stations) to maximize its facilities according to the comprehensive plan approved by the Commission on September 30, 1992.3

3Apart from WFUV, the involved stations are: WFMU(FM), Ossining, New York; WSHU(FM), Fairfield, Connecticut; WWNJ(FM), Dover Township, New Jersey, and WXCI(FM), Danbury, Connecticut This action also enabled the provision of new noncommercial educational broadcasting services to Ossining, New York (File No. BPED-840423IC) and Manahawkin, New Jersey (File No. BPED-910715MG).

6785 ______Federal Communications Commission DA 97-1110 44.. Operation with lesser facilities will not provide WFUV with the maximum facilities which it desires and to which it is theoretically entitled under the Rules, nor will it effectuate an efficient use of the noncommercial educational FM spectrum. 45. Furthermore, WFUV has investigated and documented its search for alternate sites, and both its search for alternate sites and its decision to locate on campus appear to be reasonable. Baltimore County. Maryland. 5 FCC Red 5615, 5617 (1990). 46. WFUV tower effects re: the Garden. Based upon our review of the submissions filed in this rraitter, we conclude that the WFUV tower will not alter the characteristics of the Garden which qualified it for inclusion in the National Register or identification as a National Landmark; it will have no effect on the quality of research done at or the educational programs offered by the Gzirden, and it will not directly impact the quality of the Garden©s herbarium, pinetum, or hemlock forest, see ^[ 9, supra. The Garden©s claim that the tower will result in a decline of visitors leading to a decreased pool of contributors and ultimately a substantial revenue decrease that will necessitate a reduction in research and educational programs is speculative and unsubstantiated: the Garden presents no breakdown of the current funding sources for its research and educational programs. 47. Nonetheless, we conclude that construction of the WFJV tower will introduce an obtrusive visual element into the setting of the Garden, at least in ©die area of the Conservatory, such as to constitute an "effect" under 36 C.F.R, §800.9. This area is-significant because visitors are drawn to the property by the aesthetic appeal of the Garden©s flora and the Conservatory©s unique and historically significant architecture. We also conclude that such effect will be "adverse" under 36 C.F.R, §800.9. The presence of the tower will substantially alter visitors© experience of the Garden by the introduction of an unavoidable (from much of the Garden) visual element out of character with the property. 48. In this connection, we note that the New York City Department of Buildings has determined that construction of the WFUV tower at its authorized site and height would constitute an "unpermitted obstruction" and has forbidden its completion under the authorized specifications. Furthermore, pursuant to the staffs solicitation of comments under the Note to 47 C.F.R. §1.1308(b), the New York SHPO submitted a letter indicating that the WFUV tower "represents an Adverse Effect" on the Garden. See SHPO letter to the Council dated June 20, 1995. The Council has concurred in this assessment See Council letter to William F. Caton dated July 25, 1995. 4!?. This conclusion attaches only to the currently authorized 480-foot WFUV tower which does not have the approval of the New York City Department of Buildings. We make no finding here regarding any shorter tower at the current location or any tower constructed, as suggested by the Department of Buildings, 25-50 feet further back from the Garden.

Other Historic Properties 50. In its EA, WFUV mentions several other sites of possible historical significance within a

6786 ______Federal Communications Commission______DA 97-1110 one-half mile radius of the tower site. Among these are: (1) Keating Hall (a potential historic site), Rose Hill (a site listed as a New York City Landmark), University Church (a New York City Landmark), St. John©s Residence Hall (a New York City Landmark), and Alumni House (a New York City Landmark), all on the Fordham University campus; (2) the Lorillard Snuff Mill (National Register, New York City Landmark); (3) 52d Police Precinct House and Stable (National Register, New York City Landmark); (4) Mosholu Parkway (potential historic site); (5) East 198th Street Historic District (potential); (6) Academy of St. Ursula (potential); (7) 2796 Pond Place (potential); (8) Fordham Road Train Station (eligible for National Register listing); and (9) Botanical Garden Train Station (eligible for National Register listing). 51. WFUV concludes that there will be no impact upon these sites for the following reasons, taken from the EA, at Executive Summary pp. S-7 - S-8 and Section C, pp. V.C-1 - V.C-8: Fordham Campus sites. The tower is located 700 feet from Keating Hall. However, removal of the antenna from atop Keating Hall will actually improve its historical appearance as well as allow its structural repair. The other historic resources are further away from the tower and at least partially blocked by intervening buildings and trees. WFUV concludes that the tower thus would not offset the character or setting of these resources. Lorillard Snuff Mill. The Snuff Mill is in the gorge of the Bronx River in a heavily wooded area of the Garden; the tower will not be visible from the mill or its terrace. 52d Street Police Station. The tower is "barely visible" in the view from the Precinct House. Its setting also includes the elevated roadway of Mosholu Parkway immediately adjacent to the station, as well as the Metro North train tracks to its west and a new four-story school to its east. Mosholu Parkway. The tower is visible from the roadway as it passes over the Metro-North Tracks, but for most of its 1.3-mile length, the tower will not be visible or will be screened by roadside trees. East 198th Street Historic District. The tower will be visible from the street, but "busy Webster Avenue" and the Metro-North train line are "closer neighbors." Another, shorter transmitting antenna is clearly visible to the left of the WFUV tower. WFUV concludes that the tower will not affect this potential historic district because its existing context includes the commercial district along Webster Avenue as well as the Metro- North train tracks. Mount St Ursula. WFUV indicates that from the Academy©s buildings in mid- block on 198th street, all views of the tower are blocked or screened by intervening residential buildings. 2796 Pond Place. WFUV avers that, as with Mount St. Ursula, there is "no direct

6787 ______Federal Communications Commission DA 97-1110 visual connection to the tower," as the house is located mid-block in a dense residential neighborhood. Fordham Road Train Station. WFUV asserts that the tower will not be visible from the train station. Botanical Garden Train Station. WFUV indicates that the view from this train station will be distant and partially screened by trees. WFUV states that "it is not expected" that this historical resource will be visually affected by the tower. 52. The Garden appears to take no issue with these specific conclusions, save for two references regarding the East 198th Street Historic District. While not emphasizing the historic value of the area, the Garden states that "the partially completed tower has already altered the visual Landscape in nearby neighborhoods," including its own photograph of the view (Garden Comments, at p. 6). Additionally, the Garden states that "[t]he proximity of ©busy Webster Avenue1 does not offset visual dominance of the proposed 480-foot tower on the district" (Garden Comments, at 8, Comment addressed to "S-8"). 53. In its response, WFUV states: "In a photograph, the activity of Webster Avenue is not as apparent as it is on-site. In fact, the tower is quite distant from this block of 198ih Street, while Webster Avenue is near. The EA text is accurate." (Reply, Comments and Responses, at 22, Response to Comment 61). 54. We conclude that, for the unrebutted reasons set forth in Fordham©s EA, there will be no NHPA Section 106 "effect" on sites 1-4 and 6-9 listed in Paragraph 57 above. 55. We also conclude that there will be no effect on the 198th Street Historic District. The WFUV tower is clearly not the only modern intrusion in the East 198th Street sightlines, and the New York City Department of Buildings has already approved the erection of a 380-foot WFUV tower at its present location. The distance of the tower from the district (over one-quarter mile from its nearest point) and other modem intrusions (another apparent antenna tower, the commercial district along Webster Avenue, and the Metro North Train tracks), in conjunction \vith the approval of the Department of Buildings for an even taller tower at the present site than currently exists, lead us to conclude that there will be no effect on this site, even were we to consider it as a possible historic property within the guidelines set forth in 36 C.F.R. §800.4. :56. Finally, the Wildlife Conservation Society ("WCS") has expressed concern about the effects of the WFUV tower on the Bronx Zoo, which it operates. (WCS letter to William F. Catoa June 26, 1995.) The letter objects to WCS1 exclusion from consideration in the EA, and states that it "assume[s]" that a 480-foot tower will be visible from "a significant part of the Zoo." Given i:he tower©s distance (more than one-half mile to the nearest point of the Zoo grounds) and the existence of modern high-rise residential developments at the periphery of the Zoo grounds, we conclude that the WFUV tower will have no NHPA Section 106 "effect" on the operation of the Zoo.

6788 ______Federal Communications Commission____ DA 97-1110

Conclusion 57. As stated in Paragraph 54 above, we conclude that the authorized WFUV tower will have an adverse effect on the New York Botanical Garden. Accordingly, as detailed in the letter accompanying these findings, we will initiate a formal consultation under 36 C.F.R. §800.5(e). We will shortly send to all interested parties a memorandum confirming the meeting and setting forth certain guidelines and an agenda for the meeting. Comments taken at the consultation meeting will be restricted to means to avoid or ameliorate the effects of the WFUV tower on the Garden. With respect to our conclusion that the WFUV tower will have no effect on the other properties discussed above, these properties will receive no further consideration unless the SHPO objects within 15 calendar days of the release of this decision. S§£ footnote 1 of the accompanying letter.

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