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Braun, Esquire Rosenman & Colin, Suite 200  X -1300 19th Street, N.W. #Xj\  P6G; XP#Washington, D.C. 20036 Margot Polivy, Esquire Renouf & Polivy 1532 Sixteenth Street, N.W. Washington, D.C 20036  Xb-x` `  hh@In re:hWFUV(FM) Bronx, New York x` `  hh@hFordham University x` `  hh@hFile No. BMPED940509JC  X-x` `  hh@hEnvironmental Assessmentxx 0(#(#Xx` `   x` `  hh@hEmergency Petition for Order to Show x` `  hh@h Cause or, Alternatively, for x` `  hh@h Reconsideration x` `  hh@hMotion to Hold Proceeding in x` `  hh@h Abeyance, as Supplemented Dear Mr. Braun & Ms. Polivy: This letter refers to the abovecaptioned request for extension of time to construct the authorized facilities of station WFUV(FM), Bronx, New York ("WFUV"). It disposes of  X-several ancillary and procedural pleadings currently pending before the Commission, i.e., (1) the "Emergency Petition for Order to Show Cause or, Alternatively, for Reconsideration" ("Emergency Petition") filed on behalf of the New York Botanical Garden ("Garden") on September 27, 1994; (2) WFUV's October 26, 1994 "Petition to Dismiss" that pleading and the Garden's November 9, 1994 Opposition thereto; (3) WFUV's "Reply to NYBG Comments on Environmental Assessment for Proposed WFUV Tower" and attached "Comments and Responses on Environmental Assessment for Proposed WFUV Transmitter Tower," filed on January 11, 1996; and (4) the Garden's January 26, 1996 "Motion to Strike" those pleadings and the related responsive pleadings engendered by them. This letter also addresses the "#'0*0*0*%" Garden's June 5, 1996 "Motion to Hold Proceeding in Abeyance," as supplemented on  X-October 29, 1996, as well as responsive pleadings related to those filings.nX2 yOb-#X\  P6G;IP#э#C\  P6QIP# These include: (1) Fordham's June 18,1996 Opposition to the Garden's motion; (2) the Garden's July 1, 1996 reply; (3) Fordham's November 5, 1996 Opposition to the Garden's October 29 supplement; and (4) the Garden's November 7, 1996 reply thereto.n  X-  X-The Emergency Petition. In the Emergency Petition, the Garden requests the Commission to issue a show cause order why WFUV's permit should not be revoked for failure to comply  X-with the Commission's environmental rules, 47 C.F.R. 1.1301 et seq. Alternatively, the Garden requests that the Commission reconsider its December 7, 1992 grant of the WFUV's application (BPED831118AL) for modification of facilities. On February 1, 1995, we required that WFUV submit an environmental assessment ("EA") evaluating the effects of its tower on the surrounding area, specifically including the Garden.  X -Letter to Ms. Margot Polivy, reference  "@B 1800B3MFW (Chief, Audio Services Division, February 1, 1995). The letter also instructed WFUV not to continue constructing the tower until the environmental matters raised by the Garden had been resolved. In light of WFUV's May 3, 1995 submission of an EA "@   "@ as well as subsequent materials, and in light of our consideration of these materials and our conclusions attached here, we are conducting the  X-environmental review sought in the Emergency Petition.2 yO)-#C\  P6QIP#э In a companion letter, we are issuing our conclusions under Section 106 of the National Historic Preservation Act. Accordingly, we believe that we need neither issue an Order to Show Cause nor reconsider the grant of WFUV's application. The Emergency Petition therefore IS DISMISSED.  X4-WFUV Reply Comments. On January 11, 1996, WFUV submitted a response and additional materials responsive to the Garden's August 4, 1995 Comments on its EA. The Garden subsequently moved to strike those filings. We believe that our determination regarding the environmental effects of the WFUV tower should be based on as complete a record as possible. To the extent WFUV's EA arguably was deficient, consideration of WFUV's  X-supplemental information is appropriate. See, e.g., Baltimore County, Maryland, 5 FCC Rcd 5615, 5616 (1990). The record here as supplemented by the Garden, WFUV, and other commenting parties is, we believe, comprehensive and affords sufficient information to reach a determination on the tower's impact. Accordingly, the Garden's Motion to Strike IS DENIED.  X7-Motion to Hold Proceeding in Abeyance. On June 5, 1996, the Garden filed a "Motion to Hold Proceedings in Abeyance" for 60 days in order for the Commission and Fordham to review two alternate site proposals for the WFUV tower. Subsequently, on October 29, 1996, the Garden filed a supplement to the motion, proffering an alternate tower design supporting the WFUV antenna between two 145foot "flagpole"type supports and three possible sites at which erection of such a structure would be feasible. Fordham opposed each" @0*((" of these pleadings, arguing in each case either that: (1) the proposed structure/site would cause an unacceptable reduction in WFUV's coverage area when compared with the currently authorized facilities; or (2) the attendant delay or additional cost involved in implementing the proposals was unacceptable. A detailed summary of these pleadings is attached as an Appendix to this letter. While ostensibly proffered in a spirit of compromise and conciliation in order to enable the parties to settle their differences, the Garden's alternative sites and tower design were not discussed or negotiated with Fordham prior to their submission to the Commission. Additionally, the Garden admits in its November 7, 1996 Reply that it   is not asking the Commission to approve any of the Garden's alternative tower and site proposals. These proposals are merely offered to show that Fordham has not exhausted all reasonable alternatives to its present tower and site, and that it is patently unreasonable for Fordham to cursorily reject all alternatives and try to force the Commission to accept Fordham's tower and site as "the only game in town" (emphasis omitted).    November 7 Reply, at 2. We will grant the Garden's Motion to the extent that we will make its alternative site and tower proposals part of the record of this proceeding. We see no benefit to withholding action on the underlying environmental issue, however, especially in light of the fact that the  X-Garden expressly does not seek the Commission's impri matur on any of the proposals. Moreover, the passage quoted above indicates that the Garden's motion and supplement were premised on a faulty legal conclusion: the Commission has held that "[t]he study of alternatives in an [environmental assessment], while critical to an adequate assessment of a particular proposal, need not be exhaustive or exacting; only a reasonable choice of  X|-alternatives is required." Baltimore County, Maryland, 5 FCC Rcd at 5617 (footnotes omitted). As detailed in the findings of fact and conclusions of law appended to the companion letter of this same date, Fordham's search for alternate sites was at the very least "reasonable." We will not withhold further action on the issue of the environmental impact of WFUV's authorized tower pending further consideration of the Garden's alternate site and tower proposals. Accordingly, the Garden's June 5, 1996 Motion to Hold Proceeding in Abeyance, as supplemented on October 29, 1996, IS GRANTED to the extent that the information " 0*(("   contained therein will be retained as part of the permanent record in this case, and IS  X-DENIED in all other respects. x` `  hh@Sincerely, x` `  hh@ x` `  hh@Linda Blair, Chief x` `  hh@Audio Services Division x` `  hh@Mass Media Bureau Attachment  X -X` hp x (#%'0*,.8135@8: