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.