In Re Applications of MIDNIGHT SUN BROADCASTERS, INC., JUNEAU, ALASKA
For Construction of a Joint Tower for Stations KINY-TV and KINY (AM)
BPCT-4637 and BP-19,481
FEDERAL COMMUNICATIONS COMMISSION
43 F.C.C.2d 667
RELEASE-NUMBER: FCC 73-1062
OCTOBER 11, 1973
[*667] Mr. STEPHEN M. SIMS, Rural Route 3, Box 3607, Juneau, Alaska.
DEAR MR. SIMS: This refers to your objections to a grant of the pending applications of Midnight Sun Broadcasters, Inc., BPCT-4637 and BP-19,481, proposing the construction of a joint tower for stations KINY-TV and KINY (AM), on tideland property located on Douglas Island across the Gastineua Channel from Juneau, and your request for the issuance of an Environmental Impact Statement by this Commission.
Your objections raise questions concerning whether the proposed tower would constitute proper land use, a hazard to air navigation, a hazard to bald eagles, and aesthetic pollution. Moreover, you assert that there are alternate sites available which would serve the needs of Midnight Sun Broadcasters, Inc., without the mentioned disabilities.
After careful consideration of all the matters raised in your objections, including all the decisions of the various federal, state and local authorities who were required to pass upon the proposed site, we find that you have failed to make the threshold showing that the proposed tower would have significant affect upon the quality of the human environment, and, therefore, no Environmental Impact Statement is required. In making this determination the Commission also notes that each of your allegations was considered by the various authorities and ultimately rejected. The FAA found no hazard, the various zoning authorities found no improper land use, and the Fish and Wildlife Service found no permanent disturbance to the eagles' feeding station, and that the species mentioned were not on the endangered list. Moreover, Midnight Sun Broadcasters, Inc., submitted evidence which indicated that the alternate sites you mentioned were either not available, or would not be adequate for the proposed service.
Accordingly, the Commission has this day granted the applications, BPCT-4637 and BP-19,481, of Midnight Sun Broadcasters, Inc., and your objections ARE DENIED.
Commissioner Robert E. Lee was absent. Commissioner Johnson dissenting and issuing a statement.
BY DIRECTION OF THE COMMISSION, VINCENT J. MULLINS, Acting Secretary.
[*668] DISSENTING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
Texas may still be the largest non-glacial state in the Union, but Alaska does boast some 586,412 square miles, 319,074 more than Texas. And yet, this Commission is unable to find a suitable antenna tower location anywhere in the state of Alaska that can serve Juneau and still not adversely affect that city's environment or the safety of its citizens.
The Commission firmly concludes that the environment (both physical and aesthetic) will not be damaged by KINY's antenna tower. The majority also dismisses possible safety problems surrounding KINY's increase in tower height at a time when the recent television tower tragedy at Cedar Rapids, Iowa, is still in our minds. That 2,000-foot tower of KCRG-TV took the lives of three persons when it fell. In my judgment, the Commission should not be passing on these issues without the benefit of at least some policy guidelines on environmental impact.
Objections have been raised by Mr. Stephen M. Sims, who alleges that for the following reasons the public interest will not be served by this tower move:
1. The location of the tower in a residential area will change the character of the property and depreciate home values;
2. High winds common to the area raise the possibility that the tower could fall and destroy Mr. Sims's home endanger his family and neighbors;
3. The proposed site location, the Gastineau Channel, is a prominent landmark for visual flights, and a tower extending 950 feet above average terrain would create a sizable air hazard;
4. In the water close to the site are six pilings which are used daily as a resting and feeding place for bald eagles, and the proposed tower move would permanently alter the life styles of this endangered species; and
5. Available alternative sites would equally serve the licensee's needs. The majority has told Mr. Sims that his allegations:
"... have failed to make the threshold showing that the proposed tower would have significant affect [sic] upon the quality of the human environment."
Such a conclusion cries out for some reasonable support -- which the majority fails to supply. The staff provides a similar whitewash by first stating that a threshold showing must be made and then -- after pointing to various national, state, and local authorities' approval of the tower move -- concluding that Mr. Sims failed to meet his burden. Such a standard is unreasonably vague, meaningless for future cases, and unconscionably shifts the burden of proof from the applicant to a "friend of the court" who is trying to do what the Commission either cannot or will not do.
The majority points approvingly to a variety of prior federal, state, and local decisions regarding this tower move but fails to provide Mr. Sims or the public with any evidence of its own investigation into the matter. Has there been any? The staff and the majority are curiously silent on this point.
[*669] In a broader sense, today's decision illustrates the direction and philosophy of this Commission. If Alaska could be said to have a "media baron," Midnight Sun Broadcasters, Inc., is it. Midnight Sun is the licensee of Juneau's only TV station and once of its two standard broadcast stations. Midnight Sun is the licensee of three of Alaska's seven television stations and four of its 20 standard broadcast stations. It also owns cable interests. Could it be that a lesser broadcaster might have had more difficulty with such a proposal?