On April 10, 2000, the Federal Communications Commission invited public comment on a November 4, 1999 petition by Lake Cedar Group LLC (Channels 4, 6, 7, 9, and 20) to preempt County Commissioner denial of a proposed supertower on residential Lookout Mountain. The request is for the FCC to expedite “special relief” by federal order. LCG contends that “the County’s adverse action is preempted by the Supremacy Clause because it unreasonably frustrates important federal policies and places LCG’s member television licensees in a position in which compliance with both state and federal regulations is impossible.”

Background

The National Association of Broadcasters (NAB) worked with the electronics and wireless industries for eight years to write the Telecommunications Act. The industries donated millions to congressional campaigns (especially Commerce Committee members) to gain passage into law in February, 1996.

The NAB lobbied to gain $70 billion of digital spectrum FREE and radiation emission limits 40 times higher than Russia. Digital TV technology can split one “channel” into many over-the-air channels to compete with cable, fiberoptic and satellite services. Broadcast TV networks have also lobbied to command fees from satellite and cable services for carrying their “universal free” signals.

Corporations that own Denver stations began planning to add digital signals in the early 1990s. The stations formed a limited liability company, Lake Cedar Group, to build a 825-foot supertower, topped by a 50-foot “starmount” triangle, and 35,000 sq.ft. industrial building for digital TV transmitters and rental space for many more antenna owners “without limitation.” With an FCC “mandate” (which the industry had lobbied to gain) to offer digital service by November, 1999, Denver stations filed a rezone proposal in August, 1998.

The JeffCo Planning Commission recommended approval on January 20, 1999. After 35 hours of public hearings, the JeffCo Commissioners denied the proposal on July 13, 1999. The compelling testimony by citizen professionals (300 to 500 attended all six hearings) who recommended denial was not reported by Denver mass media. The County Commissioners denied the proposal because was not compatible with: “residential uses in the surrounding area... the JeffCo TelCom Plan... Central Mountains Community Plan... zoning resolutions... and is not in the best interest of the health, safety, morals, convenience, order, prosperity, and welfare of the residents of Jefferson County.”

LCG filed a District Court appeal on August 12, 1999, stating that citizen testimony presented “prejudicial and irrelevant testimony” and that the “Tower PD Regulations are invalid and void on its face.” LCG delayed payment for JeffCo public hearing transcripts and documents ordered for trail and filed the FCC preemption petition in November.

LCG Consultant submits alternative site evaluations to FCC in March, 2000

Michigan consulting engineer John F.X. Browne evaluated five tower sites based on “financial considerations” of Denver TV stations. Economic impact on residential communities surrounding each site were not considered. Browne claims Lookout is the least costly tower site for the broadcasters.

Professional electrical engineers Al Hislop, Ron Larson and Jim Martin volunteered extensive time to prepare a CARE rebuttal to Browne’s claims. The citizen volunteers wrote “We found the report contains a number of unsupported and incorrect claims and speculations...” that focus primarily on the business of tower siting. The community volunteer engineers provided technical evaluations of 1) the Table Mountain “quiet zone,” 2) co-location with analog (not technically required), 3) shadowing and multipath technology, 4) potential radio frequency radiation results at each site, 5) residential and business RF interference, 6) comparisons of Eldorado, Squaw, Sedalia, Lookout, and Browne’s theoretical “Site D.”

The Browne report did not consider safety, property values, aesthetics, signal strength, and historic properties surrounding each tower site. CARE’s rebuttal evaluated coverage of Denver metro, RFR & Interference, FCC issues, NEPA & Historic properties, and costs to the industry and/or citizens. Their summation indicates Lookout would be cause the least economic burden to broadcasters and greatest economic burden to the community surrounding the site.

CARE sends 50-page brief & public documents

Attorneys Scott Albertson and Deb Carney prepared Mt. Vernon Canyon’s community response to the FCC. “CARE joins the Colorado legislature and Jefferson County in contesting the jurisdiction of the FCC to take any action on this petition for preemption, other than immediately dismissing it... Quite simply, the members of the FCC were not appointed to make local land use decisions, and that power has not been delegated to them.”

CARE claims that the Browne tower site evaluation, submitted after the JeffCo tower denial, is a violation of due process. “LCG’s filing of this Browne report is analogous to asking for a new trial on the ground of newly discovered evidence.” The brief informs the FCC that Browne was paid to testify at Jefferson County public hearings when LCG had the burden of proving it could locate ONLY on Lookout Mountain.

The CARE brief informs the FCC that 3,000 citizens signed a petition and 300 letters sent requesting denial of the supertower. Sixty-four of the 79 witnesses that testified opposed the tower. The 15 witnesses who supported the proposal were industry employees and consultants.

LCG Washington attorney Edward Hummers told a different story in the past. When Hummers represented Mountain Contours in a denied supertower proposal on Lookout in 1993, he demanded that broadcasters should not be relicensed because they would not allow Channel 14 on their towers. Three separate tower proposals (for what most of the same land proposed by LCG in 1999) were denied from 1983 to 1990. TV station members of Lake Cedar Group then claimed that “Lookout Mountain is not a unique site.”

CARE wrote “The Broadcasters have, like chameleons, now ‘changed colors.’ Now the Broadcasters state that Lookout Mountain is the only site suitable for a new DTV supertower and antennae. But, the prior inconsistent statements of the broadcasters provide the acid test and belie their current assertions. The Broadcasters ‘... dogged pursuit of Lookout Mountain to the exclusion of all other sites defies sound business judgment,’ as well as the truth of their past admissions to the contrary.”