218 P.3d 669 (2009)
Richard WAGNER, Appellant,
v.
Gregory WAGNER, Appellee.
Richard Wagner, Appellant,
v.
Gregory Wagner, Appellee.
Nos. S-13055, S-13175.
Supreme Court of Alaska.
October 16, 2009.
*670 S. Jason Crawford, Crawford Law Offices, LLC, Fairbanks, for Appellant.
John J. Connors, Law Office of John J. Connors, P.C., Fairbanks, for Appellee.
Before: FABE, Chief Justice, EASTAUGH, CARPENETI, and CHRISTEN, Justices. [WINFREE, Justice, not participating.].

*671 OPINION

FABE, Chief Justice.

I. INTRODUCTION
In exchange for his son Gregory Wagner's help obtaining a loan, Richard Wagner, who had previously filed for bankruptcy and had many creditors, agreed to give Gregory a portion of the royalty proceeds from his oil lease holdings. When Richard failed to honor this agreement, Gregory sued and in 2005 obtained a judgment for specific performance providing that he would be entitled to a share of Richard's royalties for as long as the subject oil wells continued producing. In two separate appeals, Richard contests the superior court's continuing enforcement of this judgment. Because Richard's arguments in both appeals are either untimely, procedurally barred challenges to the 2005 judgment or otherwise lack merit, we affirm the superior court's decisions in all respects.

II. FACTS AND PROCEEDINGS

A. Facts
This is not the first time Richard and Gregory Wagner have been before us.[1] We described the basic facts underlying their dispute in a recently published opinion:
Richard Wagner filed for bankruptcy in 1988. Richard's assets included royalties from oil and gas leases he possessed. Richard's creditors included Key Bank, whom Richard owed $2.5 million. The bankruptcy court issued Richard's final bankruptcy plan in 1994. The plan divided Richard's oil and gas lease royalties among his creditors. In 2001 Key Bank offered to settle Richard's $2.5 million debt for $1 million if Richard paid by December 31, 2001. Richard was unable to raise the money; he therefore asked his son Gregory Wagner to help him get a loan.
Gregory agreed to co-sign a $1,025,000 loan from Northrim Bank with Richard. Gregory and his wife put up their home as collateral and put their personal credit at risk. In exchange for Gregory's co-signature on the loan, Richard and Gregory entered into an oral agreement, which they later reduced to writing.
The written agreement provided that income from Richard's royalties that had secured the Key Bank loan would first pay the Northrim loan. Any remaining royalty income would be divided as follows: Gregory would get the first $2,500 per month, Richard would get the next $7,500 per month, and they would divide any remaining royalty income equally between them. The agreement did not take into account the portions of royalty income to be paid to other creditors under the bankruptcy plan.[[2]]

B. Prior Proceedings
We described the trial court proceedings that underlie the current appeals in the same recently published opinion:
In 2002 Richard defaulted in his payments to Gregory, and Gregory sued in 2003. The case went to trial in August 2005. At the end of trial, the jury returned the following answers to the following special interrogatories:
[Q:] Prior to the time the Wagners signed the loan documents at Northrim Bank on December 24, 2005, had they entered into an oral agreement? [A:] Yes.
[Q:] If yes, what were the terms of that agreement? [A:] In exchange for getting a $1,025,000 loan from Northrim bank to repay Richard Wagner's debt at Key Bank, Greg Wagner will receive a share of profits from Richard Wagner's oil royalties.
The jury found breach by Richard and awarded Gregory past damages of $139,180.39.
In November 2005 the superior court concluded that specific performance was an appropriate remedy and ordered Gregory to prepare a judgment for specific performance. The court held, contrary to Richard's argument, that the jury's failure to specify the terms of the oral agreement *672 did not prevent specific performance. The court reasoned that the jury must have used the terms of the written agreement to calculate its award of past damages, and therefore that the jury must have found the terms of the oral agreement consistent with the terms of the written agreement. The court wrote:
Applying the formula of the [written] agreement mechanically to the testimony of ... [a witness] and the other evidence of the oil revenues from Richard's shares of his oil leases introduced at trial, the past damages would be calculated at $141,124.00. That is within $2000.00 of what the jury actually awarded [$139,180.39]. The jury did not receive a lot of help from counsel in calculating past damages and their award to Greg is within reasonable mathematical error if they performed the calculations under the agreement themselves.... The difference could also be explained by the jury's determination that there were insufficient royalties to meet the complete payout of the agreement on one or more months.
The trial court said it would order Richard to pay Gregory according to the formula in the written agreement. The trial court also said it would calculate Gregory's payments without deducting amounts owed to creditors other than Northrim Bank, including the Weeks Foundation. In December 2005 the superior court entered judgment for specific performance against Richard.[[3]]
The superior court's partial final judgment for specific performance in December 2005 provided that Richard's future royalty income would be received in escrow and then distributed to Gregory, Richard's various creditors, and Richard according to detailed instructions described in the judgment. The superior court ordered that
[t]he allocation and distribution of the [royalty] income subject to this judgment shall continue as long as there is production from the oil and gas wells in which Richard Wagner holds royalty interests subject to this judgment.
As Gregory notes, "because Richard promised to pay Greg out of funds he had previously promised to ... other creditors," the judgment for specific performance prescribed one formula for determining Gregory's monthly royalty entitlement (under which Richard's debts to pre-existing creditors other than Northrim Bank were not factored in because Richard's agreement with Gregory had not taken them into account), and a different formula for actually distributing the monthly royalties (under which Richard's pre-existing creditors were paid first because their rights were prior in time to Gregory's). Gregory describes the result as "a monthly amount accrued [against Richard] in Greg's favor which could not be paid contemporaneously."
Richard appealed the 2005 judgment for specific performance in January 2006, and we later described the issues raised in that appeal as follows:
Richard challenged a number of the superior court's conclusions of fact and law. He generally did not state any legal grounds for those challenges, merely stating that the superior court "erred" in entering them. He challenged the superior court's conclusion of law that "[t]he contract between Richard and Greg is sufficiently clear and definite that the Court is able to enforce it without having to supply essential terms that the parties did not agree to." He also challenged the superior court's decision to order specific performance into the future, as well as the superior court's order that all Richard's royalty income be paid directly into an escrow account and directly disbursed from the escrow account, without ever passing through Richard's control.[[4]]
We ultimately dismissed Richard's January 2006 appeal for lack of prosecution.[5]
In April 2006 Gregory appealed the superior court's award of attorney's fees on the *673 December 2005 judgment for specific performance, arguing that his fees had been calculated improperly.[6] We affirmed the fee award.[7]
In March 2007 the superior court issued a writ of execution against Richard for arrears owed to Gregory under the judgment for specific performance, and Richard appealed from the issuance of that writ in April 2007.[8] Richard argued that (1) the trial court deviated from the jury award when it entered the 2005 judgment for specific performance, (2) the trial court erred in ordering specific performance rather than a lump sum judgment, and (3) the trial court miscalculated the amount of arrears Richard owed when it issued its March 2007 writ of execution.[9] We affirmed the superior court's decision to issue the writ, holding that Richard's first two arguments were time-barred challenges to the 2005 specific performance judgment that were covered by his earlier dismissed appeal, and that his third argument lacked merit.[10]

C. Current Proceedings

1. Appeal S-13055
Upon Gregory's motion, the superior court convened in January 2008 to determine the arrears Richard owed Gregory for the year 2007 under the judgment for specific performance. In February 2008 Superior Court Judge Mark I. Wood issued an order concluding that the arrears for 2007 totaled $393,688.30 and confirming that Gregory would be able to obtain a writ of execution in that amount. Richard now appeals from this February 2008 order, arguing that the order violates Richard's Chapter 11 bankruptcy plan and is inconsistent with the jury's verdict and the judgment for specific performance.

2. Appeal S-13175
In May 2008 Richard filed a "motion for return of funds," requesting that the superior court order Gregory to pay him $67,779.54 that he alleged had been "improperly paid over" to Gregory by the clerk of court, who was acting as the escrow agent distributing Richard's royalty income under the judgment for specific performance. Richard argued that certain royalty disbursements that he was owed as assignee of the claims of two of his bankruptcy creditors should have been paid to him by the clerk of court without being intercepted by Gregory's writ of execution for arrears. Richard contended that by paying those funds to Gregory under Gregory's writ of execution, the clerk of court violated the judgment for specific performance because that judgment provided that Richard was to receive those funds.
Gregory countered that there was no reason why the disbursements due Richard as assignee of those bankruptcy creditors' claims would be exempt from Gregory's writ of execution and that Richard's motion was untimely because Gregory had been executing on those disbursements for more than a year before Richard objected. Judge Wood agreed with Gregory and denied Richard's motion in late May 2008, noting that "there is no statutory or case law which supports Richard Wagner's untimely request for an additional exemption from execution." Richard now appeals from the denial of his motion.

III. STANDARDS OF REVIEW
We "review questions of law de novo[,] questions of fact for clear error," and "awards of specific performance for abuse of discretion."[11]

IV. DISCUSSION
To the extent that Richard's arguments substantively challenge the 2005 judgment for specific performance, they are untimely and procedurally barred. In Wagner II we declined to consider two out of three of *674 Richard's points on appeal for this very reasonthey were untimely, procedurally barred challenges to the 2005 judgment for specific performance that Richard has long since lost the opportunity to appeal.[12] The thirty-day deadline for appeal of the 2005 judgment passed more than two years before Richard filed current appeals S-13055 and S-13175 in 2008.[13] Though execution on the judgment has occurred continually since its entry, "[e]xecution does not give a party a second chance to appeal the merits more than thirty days after the entry of final judgment."[14] Moreover, as we also noted in Wagner II, "a party has only one appeal as of right," which Richard used when he filed the 2006 appeal (S-12205) that we dismissed for lack of prosecution.[15]
Thus, while Richard may argue that the judgment for specific performance is being improperly or inaccurately enforced, he may not substantively challenge the judgment. And if he wishes to attack the judgment on the basis that it is void ab initio because "the trial court was without proper authority and jurisdiction" in entering it, the proper vehicle for his argument would be a Civil Rule 60(b)(4) motion for relief from the judgment,[16] rather than an appeal from the superior court's actions in enforcing the judgment. Accordingly, we decline to consider the merits of any of Richard's arguments that challenge the 2005 judgment for specific performance.

A. The Superior Court Did Not Err in Determining that Richard Owed Gregory $393,688.30 in Arrears on the Specific Performance Judgment for the Year 2007 (Appeal S-13055).
Richard appeals the superior court's February 2008 order determining that he owed Gregory $393,688.30 in arrears for the year 2007 under the 2005 judgment for specific performance. He argues (1) that the order "effectively changed the material terms of the Chapter 11 [bankruptcy] plan ... without obtaining permission from the United States Bankruptcy Court for the District of Alaska," (2) that the jury verdict that formed the basis for the 2005 judgment for specific performance was not precise enough to support that judgment, and (3) that the superior court used the wrong formula in calculating Richard's arrears by "failing to deduct payments to Richard Wagner's pre-existing creditors."

1. The superior court did not err "in failing to obtain leave or permission to act outside of the Chapter 11 bankruptcy plan."
Richard asserts that the superior court "issued an order which effectively changed the material terms of the Chapter 11 plan and ... directed the reallocation of income used for plan payments (i.e., royalty from oil and gas well leases) without obtaining permission from the United States Bankruptcy Court...." But Richard provides no explanation as to how the superior court "effectively changed the material terms" of the bankruptcy plan.
If Richard intends to argue that the superior court's February 2008 order impermissibly changed the bankruptcy plan, his argument is waived due to inadequate briefing.[17] As Gregory points out, Richard "does not explain or cite any provision of his Fifth Amended Bankruptcy Plan that is or was in any way offended, or impaired.... Nor does he in any way, reference any specific bankruptcy laws that were offended." And as Gregory further notes, "the Trial Court took great pains not to vary the bankruptcy payment *675 stream to Richard's creditors in any way" and "all of the bankruptcy creditors received the royalty payments due them, on time and in accordance with the plan." (Emphasis in original.)
This appeal is not the proper context for an argument that the underlying 2005 judgment for specific performance impermissibly changed the bankruptcy plan. As discussed above, the time has long since passed for Richard to attack the 2005 judgment for specific performance on the merits. And if Richard wishes to challenge it on the basis that it is "void" because "the trial court was without proper authority and jurisdiction" in entering it, the proper vehicle for his argument would be a Civil Rule 60(b)(4) motion for relief from the judgment.[18]
Accordingly, we decline to consider Richard's argument that the superior court erred "in failing to obtain leave or permission to act outside of the Chapter 11 bankruptcy plan."

2. The superior court did not err "in failing to enter an order setting forth definite terms for the duration and conclusion of specific performance."
Richard next argues that "the jury verdict at trial left an ambiguous term, without any specific amounts for economic damages," and that the superior court "erroneously assumed the role of fact finder" when it ordered specific performance in 2005 based on a formula "to which the jury made no reference." He also contends that "[b]y requiring specific performance indefinitely, instead of determining a specific amount for damages, the trial court has caused a manifest injustice to Richard Wagner by preventing him from knowing what the ramifications of any future conveyance of rights might be."
But these arguments inescapably constitute an untimely, procedurally barred challenge to the 2005 judgment for specific performance. Moreover, they are very similar to arguments Richard made in Wagner II. In Wagner II we rejected these arguments as "time-barred and barred by our dismissal of [Richard's] appeal from the 2005 judgment for failure to prosecute."[19] We now reject them once again for the same reasons.

3. The superior court did not err "in failing to deduct payments to Richard Wagner's pre-existing creditors."
Finally, Richard appears to argue that the superior court's February 2008 order enforcing the 2005 judgment was inconsistent with that judgment.[20] He asserts that "the Court's decision change[s] the formula the Court initially outlined in its Rule 54(b) Partial Final Judgment" and that the "decision to distribute funds using a formula which first sets out the payments between the parties then credits payments to other creditors directly from Richard's share of the proceeds[] was error." He complains that payments to his creditor Weeks should not have been deducted from his share of the royalty proceeds in the calculations underlying the February 2008 order. He argues that the superior court "should have first set aside the monies payable under the terms of the Chapter 11 plan, then calculated the division of remaining royalty funds between the parties." He further asserts that, having settled accounts with several of his bankruptcy creditors, he "should be entitled, as successor in interest for [those] creditors, to keep those funds paid according to the formula set forth in the bankruptcy plan, and then divide the remaining funds according to the trial court's formula adopted in its order on specific performance."
But this argument, made here in the context of Richard's opposition to the superior court's February 2008 order, is simply a revival of an argument Richard made in Wagner II regarding the superior court's issuance of Gregory's 2007 writ of execution. In Wagner II Richard asserted, using some of *676 the same language he uses here, that the superior court erred "by declining to deduct payments to Richard Wagner's pre-existing creditors prior to determining Gregory Wagner's share" when it "took the creditor payments (Weeks) from Richard's share of the royalties, instead of allocating payments to the creditors first and then following its previous calculations to distribute the remainder." We analyzed this argument in Wagner II and rejected it because the trial court's "calculation mirrored the jury's findings and because the trial court plainly stated, in both its November and December 2005 orders, that it would calculate amounts due Gregory without regard for the Weeks Foundation's claims."[21] We concluded that "calculating the amount due Gregory without deducting amounts owed to Richard's bankruptcy creditors, particularly the Weeks Foundation" is not inconsistent with the judgment for specific performance.[22] Thus, because we have already considered and decided this issue, albeit in the context of Richard's appeal from a different superior court order, Richard's argument in this regard is barred by the doctrine of issue preclusion, or collateral estoppel.[23]
But even if Richard's argument were not collaterally estopped, it would nonetheless fail. Richard complains that the royalty income should have been allocated to his creditors first (including, he argues, to him, seeing as he has bought out several of his creditors), with only the remainder then allocated between him and Gregory. But that is simply not what the 2005 judgment for specific performance requires. The superior court explicitly found that the agreement between Richard and Gregory did not take into account the claims of Richard's creditors other than Northrim Bank. The superior court thus ordered that the amount Richard owed Gregory each month would be determined based upon the total monthly royalty income minus only Richard's obligation to Northrim Bank. The superior court followed this formula in determining Richard's arrears for the February 2008 order.
Accordingly, we affirm the superior court's February 2008 order.

B. The Superior Court Did Not Err in Denying Richard's Motion for Return of Funds (Appeal S-13175).
Richard also appeals from the May 2008 order denying his motion for return of funds. Richard contends that the clerk of court, who was acting as the escrow agent distributing Richard's royalty income according to the 2005 judgment for specific performance, should have paid him the funds allocated to him as the assignee of the claims of two of his bankruptcy creditors instead of paying those funds directly to Gregory under Gregory's writ of execution. He thus contends that the superior court should have granted his motion requesting the return of those funds.
Richard makes three arguments as to why the clerk of court should not have honored Gregory's writ of execution: (1) "at the time the writ of execution was served, the clerk [of court] was not in possession of money `belonging' to Richard," nor was the clerk of court "`indebted' to" Richard, meaning that the writ of execution did not obligate the clerk of court to pay the funds to Gregory under AS 09.40.040 (emphasis omitted); (2) the clerk of court "had a conflict of interest in acting both as an escrow agent and in issuing writs of execution on the same funds over which the [c]lerk was charged with a fiduciary duty to protect and distribute according to the Court's final judgment"; and (3) the superior court "effectively changed the material terms of the Chapter 11 [bankruptcy] plan ... without obtaining permission from the United States Bankruptcy Court for the District of Alaska."
The last of these three arguments duplicates precisely the inadequately briefed and procedurally barred argument discussed above in our treatment of appeal S-13055. *677 We dispose of it in the same manner. Richard's other two arguments lack merit. As the superior court noted in denying Richard's motion, "there is no statutory or case law which supports Richard Wagner's untimely request for an additional exemption from execution."

1. It was proper for the clerk of court to pay Gregory, under Gregory's writ of execution, royalty distributions allocated to Richard.
Richard's bankruptcy plan provided for the payment of Richard's debts to various creditors. Richard has since settled with some of these creditors, meaning that the royalty distributions owed to them under the bankruptcy plan were assigned to Richard. In crafting its 2005 judgment for specific performance, the superior court did not disturb this arrangement, providing that Richard would be allocated and paid the distributions owed to the bankruptcy creditors whose claims he had purchased.
But Richard owed Gregory a substantial sum in back payments on their contract under both the initial damages judgment and the judgment for specific performance. Gregory obtained successive writs of execution for the arrears he was owed. Pursuant to one of Gregory's writs, the clerk of court, who had received Richard's royalties as the escrow agent under the judgment for specific performance, distributed to Gregory the share of the royalties that Richard was owed as the assignee of two of his bankruptcy creditors' claims. Richard now argues that by distributing those funds to Gregory rather than Richard, the clerk of court violated the obligation to obey the 2005 judgment for specific performance.
Alaska Statute 09.40.040 requires that "[a]ll persons having in their possession personal property belonging to the [debtor] or owing a debt to the [debtor]" must honor a creditor's writ of execution.[24] Richard contends that "at the time the writ of execution was served" the clerk of court "was not in possession of money `belonging' to Richard Wagner," and was not "`indebted' to" Richard (emphasis omitted). He argues that this means that "pursuant to AS 09.40.040 the clerk was not under any duty to pay Gregory Wagner under the writ of execution." Richard's position thus seems to be that his interest in the royalties flowing into the escrow account managed by the clerk of court was not subject to execution by Gregory and should have been paid to Richard.
But the single case Richard cites undermines his position. In von Gemmingen v. First National Bank of Anchorage we rejected the argument that a debtor's interest in certain escrow accounts was not property subject to execution because no proceeds were held in the accounts at the time of levy.[25] We held that "`property' liable to execution includes not only funds within named escrow accounts, but also the rights of and duties owed to judgment debtors pursuant to the terms of those accounts," and that "[f]unds deposited in escrow accounts then subject to a valid levy are encumbered at the time of deposit."[26] Thus any interest Richard held in the royalties flowing into the escrow account managed by the clerk of court was subject to Gregory's writ of execution, and the clerk of court acted properly under AS 09.40.040 in honoring that writ and paying the funds to Gregory rather than Richard.

2. The clerk of court did not have an impermissible conflict of interest.
Richard also argues that the clerk of court "had a conflict of interest in *678 acting both as an escrow agent and in issuing writs of execution on the same funds over which the [c]lerk was charged with a fiduciary duty to protect and distribute according to the Court's final judgment." But this argument is inadequately briefed, as it is contained in a single conclusory sentence, without citation to any authority.[27] Moreover, it was not raised in his pleadings below, and "[a]s a general rule, an issue that was not raised in the trial court will not be considered on appeal."[28]
Accordingly, we affirm the superior court's May 2008 denial of Richard's motion for return of funds.

V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court's decisions in all respects in both appeals.
NOTES
[1]  See Wagner v. Wagner (Wagner II), 205 P.3d 306 (Alaska 2009); Wagner v. Wagner (Wagner I), 183 P.3d 1265 (Alaska 2008).
[2]  Wagner II, 205 P.3d at 308 (footnote omitted).
[3]  Id. at 308-09 (footnote omitted and alterations in original).
[4]  Id. at 309 (alteration in original).
[5]  Id.
[6]  Wagner I, 183 P.3d at 1266-67.
[7]  Id. at 1268.
[8]  Wagner II, 205 P.3d at 309.
[9]  Id. at 307.
[10]  Id. at 309-10.
[11]  Id. at 309 (citing Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979); Moran v. Holman, 501 P.2d 769, 771 (Alaska 1972)).
[12]  205 P.3d at 309-10.
[13]  See Alaska R.App. P. 204.
[14]  Wagner II, 205 P.3d at 310.
[15]  Id. at 309.
[16]  Alaska Rule of Civil Procedure 60(b) provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
. . . .
(4) the judgment is void....
[17]  See A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995) ("[Superficial briefing and the lack of citations to any authority constitutes abandonment of the point on appeal.").
[18]  See supra note 16.
[19]  205 P.3d at 307.
[20]  It is possible Richard actually intends to challenge the underlying 2005 judgment for specific performance. But as discussed above, to whatever extent Richard intends to challenge the 2005 judgment for specific performance, his arguments are untimely and procedurally barred.
[21]  205 P.3d at 310.
[22]  Id.
[23]  See McElroy v. Kennedy, 74 P.3d 903, 907 (Alaska 2003) ("[I]ssue preclusion, or collateral estoppel, renders an issue of fact or law which has already been decided by a court of competent jurisdiction conclusive in a subsequent action between the same parties, whether on the same or a different claim.").
[24]  AS 09.40.040 provides:

All persons having in their possession personal property belonging to the defendant or owing a debt to the defendant at the time of service upon them of the writ and notice shall deliver, transfer, or pay the property or debts to the peace officer, or be liable to the plaintiff for the amount of the property or debts until the attachment is discharged or a judgment recovered by plaintiff is satisfied. Debts and other personal property may be delivered, transferred, or paid to the peace officer without suit, and the receipt of the officer is a sufficient discharge.
See also von Gemmingen v. First Nat'l Bank of Anchorage, 789 P.2d 353, 354 n. 2 (Alaska 1990) ("Alaska Statute 09.40.040, which defines third party liability for improperly resisting attachment,... applies to writs of execution.").
[25]  Id. at 354.
[26]  Id. at 355-56.
[27]  See supra note 17.
[28]  Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997).


451 F.Supp. 7 (1977)
MICHIGAN PARALYZED VETERANS OF AMERICA, a Michigan non-profit Corporation, et al., Plaintiffs,
v.
William COLEMAN, Jr., Secretary of Transportation, et al., Defendants.
Civ. No. 5-71114.
United States District Court, E. D. Michigan, S. D.
November 3, 1977.
Sheldon Wachler, Southfield, Mich., and Barry C. Brown, East Lansing, Mich., for plaintiffs.
James K. Robinson, U. S. Atty., and Thomas Woods, Asst. U. S. Atty., Detroit, *8 Mich., for the federal defendants Secretary of Transportation, Urban Mass Transportation Administrator, and General Services Administrator.
Frank J. Kelley, Atty. Gen. of Michigan, Lansing, Mich., and Robert L. Krause, Asst. Atty. Gen., Detroit, Mich., for defendant Director of Michigan Department of Highways and Transportation.
Walter H. Clements, and Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., for defendants Chairman and General Manager, Southeastern Michigan Transit Authority.
W. Mack Faison, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendants Conrad Mallett and Michael Glusak, Southeast Michigan Congress of Governments.
Roger E. Craig, Corp. Counsel, and William Dietrich, Asst. Corp. Counsel, Detroit, Mich., for defendant Mayor Coleman Young of the City of Detroit, Michigan.

OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND ALLOWING PLAINTIFFS TO AMEND THEIR COMPLAINT
KEITH, Chief Judge.
The federal defendants have moved, in a motion joined in by the state and municipal defendants, to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment pursuant to Rule 56 on the ground that there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law. Briefs, supplemental briefs, affidavits and exhibits were filed in support of and in opposition to this motion. The matter came on for a hearing on October 26, 1976. At the conclusion of the hearing, the Court announced it would deny the motion to dismiss, and take under advisement the motion for summary judgment. Additional information regarding the issues raised by this action and the motion under consideration were brought to the Court's attention by each party after the hearing had been held and while the summary judgment motion was under advisement. The Court received a supplemental memorandum from the plaintiffs on April 19, 1977, and copies of the amendments to the Urban Mass Transportation Administration regulations from the federal defendants on September 27, 1977. The Court is now fully advised in the premises.
This action was brought by and on behalf of elderly and handicapped persons seeking injunctive and declaratory relief to prevent the Southeastern Michigan Transportation Authority (SEMTA) from planning, approving, issuing money for, contracting for, or fulfilling existing contracts for, the purchase of any diesel transit buses, other public transportation vehicles or related facilities which are inaccessible to mobility handicapped persons where said purchases are to be funded in whole or in part by the United States Department of Transportation, unless and until the defendants comply with those federal and state laws and agency regulations designed to protect the rights of the mobility handicapped to public transportation facilities. Complaint at 1-2. On June 19, 1975, the Court denied plaintiffs' request for a temporary restraining order to halt SEMTA's procurement of buses with funds derived from Urban Mass Transportation Capital Improvement Grant No. MI-03-0030. The defendants subsequently filed their motion to dismiss or for summary judgment.
The Complaint alleges seven causes of action. Plaintiffs assert that the defendants have violated: 1) section 16(a) of the Urban Mass Transportation Act, 84 Stat. 962, 49 U.S.C. § 1612(a) (1970); 2) section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 3) Public Law 90-480, 42 U.S.C. §§ 4151 et seq.; 4) the Federal Aid Highway Amendments of 1974, 88 Stat. 2283, Public Law 93-643; 5) the Department of Transportation and Related Agencies Appropriations Act of 1975, 88 Stat. 768, Public Law 93-391; 6) Act 327 of Michigan Public Acts of 1972, M.S.A. *9 § 9.1097(10c), M.C.L.A. § 247.660b; and 7) the due process and equal protection clauses of the United States and Michigan Constitutions. In Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977), a case decided subsequent to the hearing on defendants' motion to dismiss or for summary judgment, the Court held that section 504 of the Rehabilitation Act of 1973 does confer upon private parties a cause of action to compel compliance by government authorities with the Urban Mass Transportation Act and the regulations promulgated thereunder, 548 F.2d at 1284-1287, and that doctrines of primary jurisdiction and prior administrative agency review do not bar consideration of such claims by a federal district court. 548 F.2d at 1287. See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) (opinion construing section 601 of the Civil Rights Act of 1964, an analogous predecessor statute to section 504 of the Rehabilitation Act of 1973, as providing a private cause of action); Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (opinion setting out the four factors relevant to a determination of whether a private remedy is implicit in a statute which does not specifically provide for one). Thus, defendants' motion to dismiss this action was properly denied by this Court.[1]
*10 In support of their alternative motion for summary judgment the defendants contend that neither section 16(a) of the UMT Act nor section 504 of the Rehabilitation Act of 1973 require every transit bus purchased by a local transit authority in whole or in part with federal funds to be fully accessible to the mobility handicapped. Instead, they assert, these acts only require them to make "special efforts" to assure the effective utilization by the elderly and the handicapped to mass transportation facilities (section 16(a)), and that no otherwise qualified handicapped individual be denied, solely because of his handicap, the benefits of, or be subjected to discrimination under, any program or activity receiving federal assistance (section 504). The plaintiffs respond by asserting that buses which are accessible to the mobility handicapped (called Transbus) do exist, and are available for purchase by SEMTA with UMTA funds. Pls'. Exhibit B attached to their Reply to Defs'. Supp.Memo. They assert that SEMTA's failure to purchase such buses is a failure to make the special efforts required by section 16(a), and the plaintiffs are therefore being discriminated against in federally funded public transportation programs in violation of section 504.
In United Handicapped Federation v. Andre, 409 F.Supp. 1297 (D.Minn.1976), vacated and remanded, 558 F.2d 413 (8th Cir. 1977), and Snowden v. Birmingham-Jefferson County Transit Authority, 407 F.Supp. 394 (N.D.Ala.1975), affirmed, 551 F.2d 862 (5th Cir. 1977), cases relied upon the federal defendants in their supplemental brief, the district courts found that the state of the art in transit bus technology was such that the defendants therein could not be required to purchase buses which were completely accessible to mobility handicapped persons. In Andre the court noted:
It would seem unreasonable to interpret the statute [section 16(a)] as requiring total accessibility since no bus manufacturer in the United States presently manufactures a standard-size transit bus especially equipped to transport, with safety, those confined to wheelchairs.
409 F.Supp. at 1300. And in Snowden, the court stated:
Special efforts have been made by BJCTA by the installation of special equipment and features such as stanchions, grab-rails, step-well lighting, power-assisted doors, etc. to aid handicapped persons other than those confined to wheelchairs in boarding and alighting from its buses. Modern technology has not progressed to the point of doing any more for those persons confined to a wheelchair than is already being done by BJCTA. In view of the present state of available bus technology, as above described, it would seem inherently unreasonable to bring all new bus procurement to a halt while new equipment is being designed, developed, tested and produced. Such a course of action would harm the general public without in any way aiding plaintiff and the class she represents.
407 F.Supp. at 397. But since these cases were decided, at least one municipal transportation authority, the Southern California Rapid Transit District, did receive bids from three bus manufacturers in the United *11 States for buses which had wheelchair accessible options. Pls'. Exhibit B attached to their Reply to Defs'. Supp.Memo. Also, on May 19, 1977, Secretary of Transportation Brock Adams announced at a press conference on Transbus that the Department of Transportation was going to require all new buses purchased with DOT grants to be designed for easy access by elderly and handicapped persons. He acknowledged that there was some opposition to the Transbus concept on the ground that it was not within the capacity of the industry to produce a low-floor, ramped bus which could operate safely and efficiently in day-to-day transit service. Statement of Secretary Adams, Press Conference on Transbus, May 19, 1977, at 2. But he supported the Transbus idea:
A review of the record convinces me that, at a minimum the three major domestic bus manufacturers could begin Transbus deliveries within 3½ years. This date allows almost 2½ years for development before bidding would begin, and approximately 15 months thereafter before the buses are actually delivered.
Ibid. at 2. See 123 Cong.Rec. S-10556  S-10567 (June 23, 1977). Thus, the technology which did not exist when Andre, supra, and Snowden, supra, were decided in the district courts now exists. The question remains whether the defendants are required by the Urban Mass Transportation Act or the regulations promulgated thereunder to order such buses immediately.
In addition, the Urban Mass Transportation Administration has amended its regulations regarding the transportation of elderly and handicapped persons to conform to the aforementioned decision of the Secretary of Transportation. These amendments provide that as of September 9, 1977, the effective date of the amendments,[2] all procurement solicitations made on or before September 30, 1979, by UMTA grantees for new, standard, full-size buses must provide for a bus design which permits the addition of a wheelchair accessible option for each bus, and the bidder must provide assurances that it offers wheelchair accessibility options for its buses.[3] All procurement solicitations by UMTA grantees containing UMTA approved specifications issued after September 30, 1979, for new, standard, full-size urban transit buses must utilize the Transbus Procurement Requirements of UMTA's bid package.[4]
It remains for the Court to consider the effect of these amendments to 49 CFR § 609.15 (1976) on this action. The Court must review the sufficiency of these regulations in light of section 16 of the Urban Mass Transportation Act, taking into account the discretion conferred by this Act upon the Secretary of Transportation to implement the Congressional policy. Should these regulations be sustained as being neither arbitrary, capricious, or an abuse of discretion, the question is presented whether SEMTA is in fact soliciting bids on buses which do permit the addition of the wheelchair accessibility option.
For the foregoing reasons, the Court is of the opinion that defendants' motion for summary judgment is premature and must be denied without prejudice.
The Court will allow the plaintiffs to amend their complaint to add or delete causes of action in conformity with this opinion and in light of developments in the law since this motion was argued.
IT IS SO ORDERED.
NOTES
[1]  In holding that this action should not be dismissed for failure to state a claim upon which relief can be granted, the Court finds that the action is properly brought pursuant to section 16(a) of the Urban Mass Transportation Act, 49 U.S.C. §§ 1612(a), 49 U.S.C.A. § 1612(a) (1976), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, 29 U.S.C.A. § 794 (1975). 49 U.S.C.A. § 1612(a) reads as follows:

(a) It is hereby declared to be the national policy that elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special effort shall be made in the planning and design of mass transportation facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured; and that all Federal programs offering assistance in the field of mass transportation (including the programs under this chapter) should contain provisions implementing this policy.
"Handicapped person" is defined in 49 U.S.C. § 1612(d) as follows:
(d) for purposes of this chapter, the term "handicapped person" means any individual who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability, is unable without special facilities or special planning or design to utilize mass transportation facilities and services as effectively as persons who are not so affected.
29 U.S.C.A. § 794 provides as follows:
No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
However, the plaintiffs have failed to state a cause of action against the Administrator of the General Services Administration, a named defendant herein. Complaint at 6, 17. The General Services Administrator is required by 42 U.S.C.A. § 4152 (1977), to prescribe, after consultation with the Secretary of Health, Education and Welfare, standards for the design, construction, and alteration of buildings, to insure whenever possible that physically handicapped persons will have ready access to, and use of, such buildings. The term "building" is defined in 42 U.S.C.A. § 4151 as follows:
§ 4151. Definitions.
As used in this chapter, the term "building" means any building or facility (other than (A) a privately owned residential structure not leased by the Government for subsidized housing programs and (B) any building or facility on a military installation designed and constructed primarily for use by able bodied military personnel) the intended use for which either will require that such building or facility be accessible to the public, or may result in the employment or residence therein of physically handicapped persons, which building or facility is
(1) to be constructed or altered by or on behalf of the United States;
(2) to be leased in whole or in part by the United States after August 12, 1968;
(3) to be financed in whole or in part by a grant or a loan made by the United States after August 12, 1968, if such building or facility is subject to standards for design, construction, or alteration issued under authority of the law authorizing such grant or loan; or
(4) to be constructed under authority of the National Capital Transportation Act of 1960, the National Capital Transportation Act of 1965, or title III of the Washington Metropolitan Area Transit Regulation Compact.
The plaintiffs claim that the term "facility" defined above includes "vehicular facilities" such as transit coaches or buses, Complaint at 17, and that the GSA Administrator has failed to effectively promulgate guidelines required by 42 U.S.C. § 4152 with respect to federally funded mass transit vehicles. Complaint at 17. This is a rather tortured interpretation of the statute. It finds no support in the language of the statute, in its legislative history, 1968 U.S. Code Cong. & Admin.News pp. 3215-3217, 90th Cong., 2nd Sess., S.Rep.No. 538, or in the regulations of the General Services Administration interpreting this statute, 41 CFR §§ 101-19.000 et seq. Regulations and standards concerning the accessibility of buses to mobility handicapped persons are within the purview of the Urban Mass Transportation Administration and the Federal Highway Administration of the Department of Transportation. 41 Fed.Reg. 18224-18421 (1976), 49 CFR §§ 609 et seq. (1976). Therefore, the Court is of the opinion that this action may be dismissed as to the General Services Administrator since the third cause of action in the Complaint does not state a cause of action.
Because of the Court's decision with regard to plaintiffs' first two causes of action, the Court will not here consider the issues presented by the plaintiffs' fourth, fifth, sixth and seventh causes of action.
[2]  42 Fed.Reg. 48339 (1977).
[3]  42 Fed.Reg. 48340 (1977). "The term `wheelchair accessibility option' means a level change mechanism (e. g. lift or ramp), sufficient clearances to permit a wheelchair user to reach a securement location, and at least one wheelchair securement device." Ibid.
[4]  42 Fed.Reg. 48340 (1977). "The technical specifications section of that package [Transbus Procurement Requirements] require a stationary floor height of not more than 22 inches, an effective floor height including a kneeling feature of not more than 18 inches, and a ramp for boarding and exiting." Ibid.


183 Cal.App.2d 342 (1960)
THE PEOPLE, Respondent,
v.
LLOYD SERGENT, Appellant.
Crim. No. 6852.
California Court of Appeals. Second Dist., Div. One.
July 29, 1960.
 Earl Klein, under appointment by the District Court of Appeal, for Appellant.
 Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Elizabeth Miller, Deputy Attorney General, for Respondent.
 FOURT, J.
 This is an appeal from an order denying a motion for a new trial and the judgment wherein defendant was convicted on two counts of forgery.
 In an information filed in Los Angeles County the defendant was charged in Count I with a violation of section 470 Penal Code in that he did, on or about February 20, 1959, with intent to cheat certain named persons, forge a check for the payment of money in the sum of $96.41 and did then pass the same knowing that such check was forged. In Count II the defendant was charged with committing substantially the same offense as set forth in Count I, on February 22, 1959. He pleaded not guilty. A jury trial was properly waived. On stipulation the matter was submitted on the testimony contained in the transcript of the preliminary hearing and further that both sides could present additional testimony. The defendant was found guilty and sentenced to the state prison.
 With reference to Count I, the evidence disclosed that Mr. Katzman was the proprietor of a surplus goods store in Burbank on February 20, 1959, and that on that date a Mr. Deering presented to him a form of printed check with the name "Sergent's Body Shop" printed at the top. The check was to the order of Deering for $96.41 and was signed "W. B. Sergent" as the maker and drawn on the Security First National Bank of Los Angeles, Burbank Branch. Deering endorsed the name "John W. Deering" on the check in Katzman's presence and in exchange therefor Katzman gave Deering merchandise and cash. Katzman never received payment on the check.
 With reference to Count II, the evidence disclosed that Paul Frazier was the owner of an automobile sales company in Los Angeles on February 22, 1959. On that date a check in the *344 same form and amount as the check referred to in Count I was presented by Deering to Frazier for a 1950 model automobile and some cash. Deering endorsed the check in Frazier's presence at the place of business.
 The checks as presented to Frazier and Katzman were of the type customarily used in the business of Bill Sergent, the proprietor of Sergent's Body Shop. The checks in question were missing from the place of business of Sergent on February 22, 1959. Only Marian Sergent and Bill Sergent were authorized to sign checks against the account at the bank and the signature "W. B. Sergent" on each of the checks was not the signature of Bill Sergent or Marian Sergent and no one was authorized or had permission to sign the name of W. B. Sergent. The defendant was the brother of Bill Sergent. There was no employer-employee relationship between the defendant and Bill Sergent.
 The defendant was arrested in Phoenix, Arizona on or about March 4, 1959. On March 7, 1959, Officer Koskie of the Glendale Police Department talked with the defendant at the jail in Phoenix. The defendant was shown reproductions of the checks in question and defendant stated to the officer that he "had made out the face of these checks in their entirety, and at no time had he been authorized by his brother Bill Sergent to sign his name on any checks or to sign his name on any papers."
 On March 10, 1959, at the Glendale jail the officer showed the checks in question to the defendant and the defendant identified the handwriting on the faces of the checks as being his and "again stated he had never (sic) permission to sign his brother's name on checks."
 The defendant was an escapee from the Ohio State Prison, having been committed there for grand larceny in 1953 and having escaped in 1956. He said he had come to California about five months before the date of the trial.
 [1] The appellant asserts that because the deputy district attorney in identifying the check used in the Frazier transaction on one occasion inadvertently referred to the check as being one signed by "Lloyd Sergent" that he could not be convicted of forgery, because all he did, according to the statement of the deputy district attorney, was to sign his own name. The check itself, which we have examined, is signed "W. B. Sergent." Further, it is apparent from the record that the prosecutor mistakenly used the name "Lloyd" instead of "W. B. Sergent" in the one instance. In every other place *345 in the transcript the check is correctly described as having been signed "W. B. Sergent."
 Appellant's next contention is that the extradition procedure by which he was brought into this state violated his constitutional rights. He testified that he was arrested in Phoenix, Arizona without a warrant and that he signed a blank waiver of extradition, that he assumed that he was to go back to Ohio to finish out his prison term in that state with the added charge of escape. Further he stated that he was not advised in Phoenix of his right to counsel and he was not taken before a court in that city. His theory is that because of what was done to him in Arizona his return to California was illegal and therefore the court in California had no jurisdiction to proceed with the matter of the charges set forth in the information.
 [2] The court in People v. Pratt, 78 Cal. 345, 349-350 [20 P. 731] stated:
 "The defendant being before the proper court, which had jurisdiction of his offense, it matters not how he may have entered into the presence of the court, it was its duty to try him."
 " 'The jurisdiction of the court in which the individual is found is not impaired by the manner in which the accused is brought before it.' (Mahon v. Justice, 127 U.S. 708 [8 S.Ct. 1204, 32 L.Ed. 283], and cases cited.)"
 " 'It would indeed be a strange conclusion if a party charged with a criminal offense could be excused from answering the government whose laws he had violated, because other parties had done violence to him, and also committed an offense against the laws of another state.' (Mahon v. Justice, 127 U.S. 712 [8 S.Ct. 1204, 32 L.Ed. 283]; Ex parte Ah Men, 77 Cal. 198 [19 P. 380, 11 Am.St.Rep. 263].)"
 "The governor of the state cannot oust the courts of the commonwealth of their right to try an individual charged with an offense over which they have jurisdiction, because of the fact that he has been instrumental in having the defendant there, by violation of his personal rights. It will not do to say that a fugitive from justice can escape the punishment for his crime because the governor of a state may have violated some law. The people of a state are not bound by any illegal act of their governor, nor should they be."
 [3] Even assuming that the defendant was in effect "kidnapped" and brought to California for trial without proper extradition proceedings, it would be no ground for the reversal *346 of the judgment in this case. The defendant received a fair and impartial trial in this state, with adequate constitutional safeguards, and the evidence of his guilt is overwhelming. (See Pettibone v. Nichols, 203 U.S. 192, 206 [27 S.Ct. 111, 51 L.Ed. 143]; People v. Millwood, 150 Cal.App.2d 154, 156 [309 P.2d 495]; People v. Youders, 96 Cal.App.2d 562, 568 [215 P.2d 743].)
 In the case of Frisbie v. Collins, 342 U.S. 519 [72 S.Ct. 509, 96 L.Ed. 541], Collins, in a petition in habeas corpus alleged that while he was living in Chicago, Michigan officers forcibly seized, handcuffed, blackjacked and took him to Michigan where he was convicted of murder and was then serving a life sentence. Collins claimed that the trial and conviction under such circumstances were in violation of the due process clause of the 14th amendment. The court stated:
 "This Court has never departed from the rule announced in Ker v. Illinois, 119 US 436, 444, 30 L ed 421, 7 S Ct 225, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will."
 In the note immediately following the opinion it is set forth:
 "Where a person accused of crime is found within the territorial jurisdiction wherein he is so charged, and is held under process legally issued from a court of that jurisdiction, neither the jurisdiction of the court nor the right to put him on trial for the offense charged is impaired by the manner in which he was brought from another jurisdiction, whether by kidnaping, illegal arrest, abduction, or irregular extradition proceedings. Ker v. Illinois (1886), 119 US 436, 30 L ed 421, 7 S Ct 225 (kidnaping in foreign country); Mahon v. Justice (1888) 127 US 700, 32 L ed 283, 8 S Ct 1204 (kidnaping in sister state); Cook v. Hart (1892) 146 US 183, 36 L ed 934, 13 S Ct 40 (kidnaping in sister state); Lascelles v. Georgia (1893) 148 US 537, 37 L ed 549, 13 S Ct 687 (defendant's trial for offense other than that specified in the requisition for his extradition from sister state); Re Johnson (1897) 167 US 120, 42 L ed 103, 17 S Ct 735 (recognizing rule); Adams v. New York *347 (1904) 192 US 585, 48 L ed 575, 24 S Ct 372 (recognizing rule); Pettibone v. Nichols (1906) 203 US 192, 51 L ed 148, 27 S Ct 111, 7 Ann Cas 1047, followed in Moyer v. Nichols (1906) 203 US 221, 51 L ed 160, 27 S Ct 121 (irregularity of proceedings for extradition from sister state). See annotation in 165 ALR 947. See also notes in 27 Ind LJ 292 (1952); and 27 Notre Dame Law 280 (1952) ...."
 In Mahon v. Justice, 127 U.S. 700 [8 S.Ct. 1204, 32 L.Ed. 283], Mr. Justice Field, speaking for a majority of the court, said for the court:
 "So in this case, it is contended that, because under the Constitution and laws of the United States a fugitive from justice from one State to another can be surrendered to the State where the crime was committed, upon proper proceedings taken, he has the right of asylum in the State to which he has fled, unless removed in conformity with such proceedings, and that this right can be enforced in the courts of the United States. But the plain answer to this contention is that the laws of the United States do not recognize any such right of asylum, as is here claimed, on the part of a fugitive from justice in any State to which he has fled; nor have they, as already stated, made any provision for the return of parties who, by violence and without lawful authority, have been abducted from a State. There is, therefore, no authority in the courts of the United States to act upon any such alleged right. In Ker v. Illinois the court said that the question of how far the forcible seizure of the defendant in another country, and his conveyance by violence, force, or fraud to this country could be made available to resist trial in the state court for the offense charged upon him, was one which it did not feel called upon to decide, for in that transaction it did not see that the Constitution, or laws, or treaties of the United States guaranteed to him any protection. So in this case we say that, whatever effect may be given by the state court to the illegal mode in which the defendant was brought from another State, no right, secured under the Constitution or laws of the United States, was violated by his arrest in Kentucky, and imprisonment there, upon the indictments found against him for murder in that State."
 It is apparent that there is no merit to either of the contentions of the appellant.
 The order denying the motion for a new trial is affirmed. The judgment is affirmed.
 Wood, P. J., and Lillie, J., concurred.


205 F.3d 82 (2nd Cir. 2000)
CELLULAR PHONE TASKFORCE, et al., Petitioners,CELLULAR TELECOMMUNICATIONS INDUSTRY ASSOCIATION, NATIONAL ASSOCIATION OF BROADCASTERS, ASSOCIATION FOR MAXIMUM SERVICE TELEVISION, INC., ELECTROMAGNETIC ENERGY ASSOCIATION, and AT&T WIRELESS SERVICES, INC., Intervenors,v.FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents.
Docket Nos. 97-4328(L); 98-4003(Con); 98-4005(Con); 98-4025(Con); 98-4122(Con).August Term 1998
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
Argued April 5, 1999Decided: February 18, 2000

Petitioners appeal from two final orders of the Federal Communications Commission ("FCC"): (1) Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C. Rcd. 15123 (1996); and (2) Procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C. Rcd. 13494 (1997). By these orders, the FCC promulgated guidelines for health and safety standards of radio frequency radiation, established streamlined procedures for meeting requirements under the National Environmental Policy Act for FCC licensees in compliance with the guidelines and retained for the FCC exclusive ability to regulate the relevant radio facility operations.
Affirmed.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
JAMES R. HOBSON, Esq., Donelan, Cleary, Wood & Maser, P.C.,  Washington, DC, (Mark F. Wilson, Esq., The Communications Workers  of America, Washington, DC, on the brief), for Ad-Hoc  Association, The Communications Workers of America, AFL-CIO, CLC  and CWA Local 7810, Petitioners,
JOHN E. SCHULZ, Esq., San Rafael, CA, for Cellular Phone  Taskforce, Petitioners, JOEL MARCUS, Counsel, Federal Communications Commission,  Washington, DC,(Joel I. Klein, Assistant Attorney General,  Catherine G. O'Sullivan, Andrea Limmer, United States Attorneys,  Christopher J. Wright, General Counsel, Daniel M. Armstrong,  Associate General Counsel, C. Grey Pash, Jr., Counsel for the  FCC, Washington, DC, on the brief), for Respondents,
HOWARD J. SYMONS, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,  P.C., Washington, DC, (Bruce D. Sokler, Esq., Sara F. Seidman,  Michelle M. Mundt, on the brief; Douglas I. Brandon, Esq., AT&T  Wireless Services, Inc., Michael F. Altschul, Cellular  Telecommunications Industry Association, Washington, DC), for  AT&T Wireless Services, Inc., and Cellular Telecommunications  Industry Association, Intervenors, John I. Stewart, Jr., Esq. and William D. Wallace, Esq., Crowell  & Moring, LLP, Washington, D.C., submitted a brief for  Electromagnetic Energy Association, National Association of  Broadcasters, and Association for Maximum Service Television,  Inc., Intervenors,
Peter James Clines, Esq., New York, NY, submitted a brief for  Gabriel Seymour, First Selectman, Town of Canaan, Connecticut, et  al., Amici Curiae on behalf of Petitioners.
Before: WALKER, NEWMAN, and SACK, Circuit Judges.
JOHN M. WALKER, Circuit Judge:

1
Petitioners Cellular Phone Taskforce ("CPT") and Ad-Hoc Association of Parties Concerned About the Federal Communications Commission Radio Frequency Health and Safety Rules ("AHA"), joined by numerous other individuals and groups, appeal from two final opinions and orders in which the Federal Communications Commission (the "FCC") promulgated guidelines for health and safety standards of radio frequency ("RF") radiation, established streamlined procedures for meeting requirements under the National Environmental Policy Act for FCC licensees that are in compliance with the guidelines, and retained the exclusive ability to regulate the relevant radio facility operations. See Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C. Rcd. 15123 (1996) ("First Order"); Procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C. Rcd. 13494 (1997) ("Second Order").

2
Affirmed.

BACKGROUND

3
In 1985, after seeking consensus among participating experts and after public notice and comment, the FCC adopted guidelines for human exposure to RF radiation from FCC-regulated transmitters and facilities. The guidelines were required by the National Environmental Policy Act ("NEPA"), 42 U.S.C.  4321 et seq., and the Council on Environmental Quality ("CEQ") regulations promulgated thereunder, see 40 C.F.R.  1500.1 et seq. In promulgating its rules, the FCC adopted the guidelines issued in 1982 by the American National Standards Institute ("ANSI"), a recognized standard-setting organization. See Biological Effects of Radiofrequency Radiation, 100 F.C.C.2d 543 (1985).

4
In November 1992, ANSI issued a more restrictive health standard for RF exposure1 than its 1982 standard. The new ANSI standard prompted the FCC to propose updating its existing guidelines. See Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 8 F.C.C. Rcd. 2849 (1993). In the 1993 proposal that was sent out for notice and comment, the FCC noted that the 1992 ANSI standard was less restrictive than two other standards: those issued by the congressionally chartered National Council on Radiation Protection and Measurements ("NCRP"), and those proposed by the International Radiation Protection Association.

5
During the comment period, the FCC received submissions from, inter alia, the Environmental Protection Agency ("EPA"), the Food and Drug Administration ("FDA"), the Occupational Safety and Health Administration ("OSHA"), and the National Institute for Occupational Safety and Health ("NIOSH"). Ultimately, the FCC adopted guidelines that combined the NCRP standard with the ANSI standard (the "Guidelines"). These Guidelines -- part of the First Order that petitioners challenge in this case -- mostly incorporate the maximum permitted exposure ("MPE") limits suggested by the NCRP, together with certain other features of the ANSI standard. In particular, the FCC accepted ANSI's suggestion to exempt certain classes of facilities from having to file routine Environmental Assessments ("EAs") setting forth their compliance with the MPE limits in the Guidelines. The exempt category consists of tower-mounted telecommunications antennae 10 meters or higher above ground and rooftop antennae emitting less than 1000 watts of power. The FCC elected to exempt such facilities after determining that they pose no risk of exposing humans to RF radiation in excess of MPE levels.

6
Several parties filed petitions for reconsideration of the FCC's First Order. Some sought slightly stricter standards, and others sought to persuade the FCC to adopt the more restrictive ANSI standard wholesale. The FCC granted the petition for rehearing but declined to adopt an unmodified ANSI standard or to tighten its own guidelines, except in minor respects.

7
While the FCC was considering the proposed guidelines, Congress passed the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (the "Act"), several provisions of which affected the FCC's ongoing proceedings. In particular, the Act preempted state and local governments from regulating the placement, construction or modification of personal wireless service facilities on the basis of the health effects of RF radiation where the facilities would operate within levels determined by the FCC to be safe. See 47 U.S.C. 332(c)(7)(B)(iv). In the Second Order that is at issue in this case, the FCC announced, inter alia, a rule that prohibited state and local governments from regulating any personal wireless service facilities based upon perceived health risks posed by RF emissions as long as the facilities conformed to the FCC Guidelines regarding such emissions.

8
Petitioners' appeal raises a plethora of claims that can be grouped into five categories: Petitioner Cellular Phone Taskforce ("CPT") argues (1) that the Guidelines violate the Americans with Disabilities Act and the Rehabilitation Act; and both petitioners argue that (2) the FCC was arbitrary and capricious in enacting the Guidelines in violation of the Administrative Procedure Act, specifically 5 U.S.C.  706(2)(A); (3) the FCC violated NEPA by failing to prepare an environmental impact statement; (4) the FCC exceeded its powers when it prohibited state and local governments from regulating the operation of personal wireless service facilities that conformed to the FCC's RF standards; and (5) the same prohibition, found at 47 U.S.C.  332(c)(7)(B)(iv), is unconstitutional both on its face and as applied. We will consider each group of claims in turn.

DISCUSSION

9
I. Americans With Disabilities Act and Rehabilitation Act Claims

10
Petitioner CPT's claims that the Guidelines violate the Americans with Disabilities Act ("ADA"), see 42 U.S.C.  12101 et seq., and Rehabilitation Act, 29 U.S.C.  701 et seq., were not the subject of a final order by the FCC. While they were raised before a staff member, the Chief of the Office of Engineering and Technology, they were not presented to the Commission. Decisions of agency staff are not directly appealable final orders. Our review is limited to final orders of the FCC pursuant to 47 U.S.C.  402(a) and 28 U.S.C.  2342(a). See American Broad. Cos. v. FCC, 682 F.2d 25, 30 (2d Cir. 1982); see also 47 U.S.C.  155(c)(7) ("The filing of an application for review under this subsection shall be a condition precedent to judicial review of any order, decision, report, or action made or taken pursuant to a delegation under paragraph (1) of this subsection."); International Telecard Assoc. v. FCC, 166 F.3d 387, 387-88 (D.C. Cir. 1999) (per curiam).

11
While we have said that the foregoing exhaustion requirement is not inflexible, we generally do not permit petitioners to raise an issue for the first time on appeal without giving the Commission an opportunity to address it, particularly where the issue is a novel one. See National Black Media Coalition v. FCC, 791 F.2d 1016, 1021 (2d Cir. 1986). The novelty of the claim raised here, that the Guidelines impermissibly discriminate against handicapped persons in violation of the ADA and the Rehabilitation Act, makes initial Commission determination both necessary and appropriate. We therefore dismiss that part of the appeal relating to petitioner CPT's ADA and Rehabilitation Act claims.

12
The remaining claims were the subject of a final order by the Commission and thus are properly before us.

II. The Administrative Procedure Act Claims

13
Petitioners claim that the FCC in adopting the Guidelines violated the Administrative Procedure Act ("APA"), 5 U.S.C. 500 et seq., when it arbitrarily and capriciously (1) failed adequately to consider the evidence of harmful effects from non-thermal levels of radiation; (2) ignored expert recommendations that would restrict the regulatory regime; (3) ignored critical factors bearing upon MPE levels; and (4) failed to account for the cumulative effects of radiation in creating categorical exemptions for certain facilities from routine environmental assessment. We disagree.

14
We may reverse an agency decision and informal rulemaking only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.  706(2)(A); see, e.g., National Black Media Coalition v. FCC, 822 F.2d 277, 280 (2d Cir. 1987). An agency's factual findings must be supported by substantial evidence which "has been construed to mean less than a preponderance, but more than a scintilla." Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation marks omitted). "The reviewing court must take into account contradictory evidence in the record, but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." American Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981) (internal citations and quotation marks omitted). When an agency makes a decision in the face of disputed technical facts, "[a] court must be reluctant to reverse results supported by . . . a weight of considered and carefully articulated expert opinion." Federal Power Comm'n v. Florida Power & Light Co., 404 U.S. 453, 463 (1972). In evaluating agency reasoning, we must be satisfied that the agency examined the relevant data and established a "rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted). The agency's action should only be set aside where it

15
relied on factors which Congress has not intended it to consider,  entirely failed to consider an important aspect of the problem,  offered an explanation for its decision that runs counter to the  evidence before the agency, or is so implausible that it could  not be ascribed to a difference in view or the products of  expertise.

16
Id. With these general principles in mind, we turn to petitioners' specific claims under the APA.

A. Non-Thermal Effects of Radiation

17
The parties do not dispute that RF radiation at excessive levels has thermal effects and that the ANSI and NCRP standards and thus the Guidelines are premised on such effects. Petitioners claim that the Guidelines are arbitrary and capricious because they fail to account for non-thermal effects of RF radiation. In support of their claim, petitioners argue that (1) neither the ANSI nor the NCRP sufficiently considered evidence of non-thermal effects and it was therefore asbitrary and capricious for the FCC to rely on the ANSI and NCRP standards; (2) the FCC did not fulfill its duty independently to evaluate new evidence filed during the reconsideration round; (3) the FCC failed to elicit expert testimony during the reconsideration round; and (4) the FCC's decision not to lower the MPE levels below the maximum permitted thermal levels failed to account for the scientific uncertainty surrounding RF harm. These arguments are unavailing.

18
In basing its guidelines on a combination of the ANSI and the NCRP standards, the FCC stated that:

19
[The] guidelines are based on recommendations of expert  organizations and federal agencies with responsibilities for  health and safety. It would be impracticable for us to  independently evaluate the significance of studies purporting to  show biological effects, determine if such effects constitute a  safety hazard, and th[en] adopt stricter standards than those  advocated by federal health and safety agencies. This is  especially true for such controversial issues as non-thermal  effects and whether certain individuals might be "hypersensitive"  or "electrosensitive."

20
Second Order, 12 F.C.C. Rcd. 13494 at  31. This decision was not arbitrary and capricious. In promulgating their standards, both the ANSI and the NCRP considered non-thermal effects. The ANSI found that "no reliable scientific data exist indicating that [n]onthermal . . . exposure may be meaningfully related to human health" and concluded that its exposure standard "should be safe for all." The NCRP found that the existence of non-thermal effects "is clouded by a host of conflicting reports and opinions." In the face of conflicting evidence at the frontiers of science, courts' deference to expert determinations should be at its greatest. See Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 (1983). All of the expert agencies consulted were aware of the FCC's reliance on the ANSI and NCRP standards. Each had been advised of such evidence of non-thermal health effects as may have existed and still found the FCC's approach to be satisfactory.

21
Under those circumstances it was reasonable for the FCC to continue to rely on the ANSI and NCRP standards absent new evidence indicating that the fundamental scientific understanding underlying the ANSI and NCRP standards was no longer valid. At most, the newly submitted evidence established that the existence of non-thermal effects is "controversial," and that room for disagreement exists among experts in the field. After examining the evidence, the FCC was justified in continuing to rely on the ANSI and NCRP standards.

22
Furthermore, the FCC satisfied itself that there was a mechanism in place for accommodating changes in scientific knowledge. It found that both the ANSI and the NCRP had "committees that are working on revisions of their respective exposure guidelines," and that "ongoing research in a number of areas may ultimately result in changes in the fundamental understandings upon which [the ANSI] and the NCRP [standards] are based," and that it would "consider amending [its] rules at any appropriate time if these groups conclude that such action is desirable." Because the new evidence consisted of publicly available scientific papers, the FCC could reasonably expect it to be considered by the ANSI and the NCRP standing committees that were working on revising their standards.

23
Moreover, it was not arbitrary and capricious for the FCC to conclude that it need not supply the new evidence to the other federal agencies with expertise in the area. It could reasonably expect those agencies to keep abreast of scientific developments in carrying out their missions. For instance, the EPA had participated not only in the hearings and comments leading to the promulgation of the Guidelines, but also had been on the verge of releasing its own draft guidelines pertaining to the health effects of RF radiation in 1996. It was fully reasonable for the FCC to expect the agency with primacy in evaluating environmental impacts to monitor all relevant scientific input into the FCC's reconsideration, particularly because the EPA had been assigned the lead role in RF radiation health effects since 1970. See 42 U.S.C.  2021(h). Because the newly submitted material consisted of publicly available scientific articles of the type monitored by the EPA and other agencies and such material was insufficient to invalidate the assumptions underlying the Guidelines, it was not arbitrary and capricious for the FCC to conclude that further consultation with the expert agencies was unnecessary.

24
Petitioners criticize the FCC for not adopting the NCRP's recommendations for stricter standards in situations of exposure to deep modulated extremely low frequency ("ELF") carrying waves. The NCRP had recommended that the exposure criteria in such situations be the same for occupational exposures as for the general population in order to provide for an additional safety margin. It was not arbitrary and capricious for the FCC to reject the NCRP recommendation. The scientific data were inconclusive on the dangers presented by such radiation, and thus did not mandate a determination different from that reached by the FCC. The NCRP itself had concluded that the existence of modulation effects was unclear. The EPA had recommended that "[w]hile studies continue to be published describing biological responses to nonthermal ELF-modulated RF radiation, the effects information is not yet sufficient to be used as a basis for exposure criteria to protect the public against adverse human health effects." ANSI had likewise found that "no reliable scientific data exist indicating that . . . modulation-specific [disease-related conditions] of exposure may be meaningfully related to human health."

25
Also unavailing is petitioners' argument that the FCC is required to apply the principle against uncertainties as adopted by the Nuclear Regulatory Commission to limit radiation to levels "as low as is reasonably achievable." See, e.g., Nuclear Regulatory Commission, 10 C.F.R.  20.1003, 20.1101(b),(d); Department of Energy, 10 C.F.R.  835.2(a)(2).

26
The argument that the FCC should create greater safety margins in its guidelines to account for uncertain data is a policy question, not a legal one. As a policy matter, an agency confronted with scientific uncertainty has some leeway to resolve that uncertainty by means of more regulation or less. Compare, e.g., American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 528 (1981) (approving more stringent regulation when agency "could not obtain the more detailed confidential industry data it thought essential to further precision"), with, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51 (1983) ("[A]n agency reasonably may decline to issue a safety standard if it is uncertain about its efficacy"). See also Center for Auto Safety v. Federal Highway Admin., 956 F.2d 309, 316 (D.C. Cir. 1992). The FCC concluded that requiring exposure to be kept as low as reasonably achievable in the face of scientific uncertainty would be inconsistent with its mandate to "balance between the need to protect the public and workers from exposure to potentially harmful RF electromagnetic fields and the requirement that industry be allowed to provide telecommunications services to the public in the most efficient and practical manner possible." This policy conclusion is neither irrational, arbitrary nor capricious and we decline to disturb it.

B. Other Expert Recommendations

27
Petitioners argue that the Commission arbitrarily ignored or failed to follow expert recommendations that would tighten the standard. Specifically they fault the FCC for (1) adopting a two-tiered MPE level system allowing for higher exposure in "occupational/controlled" situations than in "general population/uncontrolled" situations despite expressions of concern with these definitions by EPA, NIOSH and OSHA; (2) refusing to adopt ANSI's recommendations on induced and contact currents; (3) ignoring the FDA's request that the FCC consider interference with medical devices; and (4) rejecting NISOH's objection to undocumented self-certification of compliance by license applicants. We disagree.

28
The record shows that the FCC did not ignore any of these substantial comments, but instead provided a reasoned response to each. The FCC found that applying the general-population limits to all situations "would impose significant and unnecessary economic and technical burdens for which adequate justification has not been presented." The FCC elected instead to clarify the differentiation between occupational and general population circumstances. It was not arbitrary and capricious to do so.

29
With respect to induced contact currents, the FCC concluded that "[b]ecause of the many possible types and configurations of metallic objects that may be near a transmitter," it would be impracticable to demonstrate compliance. And "in view of the continuing questions and difficulties relating to evaluation of induced and contact currents, especially with regard to measurements . . . . we see no practical way to require compliance" with any limits suggested by the parties. However, the FCC "recognize[d] the desirability for limits to be adopted in the future," and promised to "monitor the issues raised . . . [and] revisit this issue" as measuring technology improves. An agency is permitted to consider costs and benefits as well as enforcement issues when establishing rules and regulations. See Motor Vehicle Mfrs. Ass'n, 463 U.S. at 54. The FCC reached a reasoned conclusion to a difficult problem, and was not arbitrary or capricious.

30
The FCC also did not ignore the FDA's request for rules dealing with interference with medical devices. The object of the rulemaking was to address biological effects of RF radiation. The FDA acknowledged that interference with medical devices was outside the scope of current rulemaking by "encourag[ing]" the FCC "to continue to work with [the FDA] to address separately this issue." The FCC was justified in limiting its current rules in this way because "agencies . . . need not deal in one fell swoop with the entire breadth of a novel development; instead, reform may take place one step at a time, addressing itself to the phase of the problem which seems most acute to the regulatory mind." National Ass'n of Broadcasters v. FCC, 740 F.2d 1190, 1207 (D.C. Cir. 1984) (quotation marks, citation and alteration omitted).

31
As for NIOSH's objections to undocumented self-certification of compliance, it was entirely within the FCC's discretion not to require operators to submit the type of information that would be provided in an EA. Cf. Black Citizens for a Fair Media v. FCC, 719 F.2d 407, 411-12 (D.C. Cir. 1983) (permitting the FCC discretion to determine what information to request in renewal applications for a broadcast license). "Ample sanctions exist for false statements . . . and licensees are well aware of their duty . . . to be scrupulous in providing complete and meaningful information." Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621, 635 (D.C. Cir. 1978) (quotation marks and citation omitted). The FCC's conclusion that its existing rules concerning licensee certification "have worked adequately in the past and should be continued" was therefore not arbitrary and capricious.

C. Maximum Permitted Exposure Levels

32
In addition to arguing that the MPE levels do not account for non-thermal effects, petitioners argue that the MPE levels are arbitrary and capricious because (1) the exposure levels to hands and wrists were increased without explanation; (2) in setting the MPE level for the general public at one-fifth of the occupational MPE level, the NCRP did not consider individual vulnerabilities among members of the public; and (3) the key assumption pertaining to average exposure time used in establishing the occupational MPEs was fatally flawed because experts within the ANSI standard-setting body disagreed on its validity. These are unavailing arguments.

33
The increased exposure levels to hands and feet were, in fact, explained by the ANSI: "Considerations that mitigate these higher permitted local [MPE levels] include relatively high surface-to-volume ratios for these parts of the body, the common experience of relatively large temperature excursions of these parts that normally occur without apparent adverse effects, and the lack of critical function when compared to vital organs."

34
In establishing the general population MPE level, the NCRP based the lowered MPE level, and thus the increased safety-margin above and beyond the occupational level, on the differences between the two groups. It pointed to the presence among the public of "debilitated or otherwise potentially vulnerable individuals for whom there is presently inadequate knowledge to set firm standards," and the greater risk of harm to the general population due to its higher numbers. The one-fifth level was considered adequate to accommodate these factors, and petitioners have presented no evidence that would render the NCRP's conclusion arbitrary and capricious.

35
Finally, petitioners challenge the FCC's reliance on experts' divergent assumptions regarding average exposure time. As long as all of the evidence has been considered, as was the case here, a factual finding that is supported by more than a scintilla of evidence is not arbitrary and capricious simply because there is conflicting evidence. See American Textile Mfr. Inst., 452 U.S. at 523.

D. Categorical Exclusions

36
The Commission concluded that tower-mounted antennae placed more than 10 meters above ground and rooftop antennae transmitting at less than 1000 watts would "offer little or no potential for exposure in excess of the specified guidelines" and that it would not be cost-effective to require routine environmental evaluation of such facilities. First Order, 11 F.C.C. Rcd. at  86. Petitioners argue that these categorical exemptions from having to file routine EAs are arbitrary and capricious because (1) there may be situations where radiation from such facilities can lead to overexposure behind walls in nearby buildings; and (2) the categorical exemptions ignore constructive interference stemming from multiple antennas or reflections from conductive surfaces, creating "hot spots" where RF radiation levels exceed MPE levels. Missing from the exemption rules, petitioners argue, are rules for when an owner must consider other nearby sources of radiation and rules establishing a public database to facilitate public monitoring. We disagree.

37
In establishing the categorical exemptions, the Commission conducted a worst-case analysis that considered the effects of multiple antennas mounted on a single tower, and determined that radiation levels in publicly available areas will be many times below MPE levels. The Commission also ensured that combined exposure from multiple towers would be considered by license applicants by charging them with the responsibility of ensuring that their facilities would comply with the MPE rules anywhere their emissions are at least 5% of MPE levels. The FCC's approach was rational. Agencies are permitted to promulgate rules based on cost/benefit analysis. See Motor Vehicle Mfrs. Ass'n, 463 U.S. at 54. In light of the low probability of excluded facilities violating MPE levels, it was reasonable to conclude that there was no need for increased compliance monitoring devices such as a central database. Moreover, the licensees are still responsible for compliance, and an interested person can petition the FCC for review of a site believed to violate the MPE levels. See 47 C.F.R.  1.1307(c).

III. The NEPA Claims

38
Both the National Environmental Policy Act ("NEPA"), 42 U.S.C.  4321 et seq., and regulations promulgated thereunder by the Council on Environmental Quality ("CEQ"), generally require agencies subject to NEPA that are about to commit resources in a federally significant action, including rulemaking, to consider the environmental effects of their actions by preparing either an Environmental Impact Statement ("EIS"), or an Environmental Assessment ("EA") followed by a finding of no significant impact ("FONSI") or an EIS as appropriate. See City of New York v. Slater, 145 F.3d 568, 571 (2d Cir. 1998) (per curiam). In promulgating its standards, the FCC admittedly did not complete either a formal EIS or an EA. Petitioners argue that the FCC was required to prepare an EIS in conjunction with its rulemaking. We disagree.

39
"[W]here an agency is engaged primarily in an examination of environmental questions, where substantive and procedural standards ensure full and adequate consideration of environmental issues, then formal compliance with NEPA is not necessary, but functional compliance is sufficient." Environmental Defense Fund v. EPA, 489 F.2d 1247, 1257 (D.C. Cir. 1973).

40
The procedures followed by the FCC in the instant rulemaking satisfy the functional compliance test. In considering the environmental impact of its guidelines, the FCC "consult[ed] with and obtain[ed] the comments of any Federal agency which has jurisdiction by law or special expertise with respect to [the] environmental impact involved." 42 U.S.C.  4332. Both the FCC's First Order and Second Order functionally satisfy the CEQ's requirements for an EA2 and a FONSI3 both in form and substance. The FCC considered the environmental impact of its rulemaking, including cumulative effects of radiation from multiple towers. And as discussed above, the findings that radiation at MPE levels would be safe and that some RF facilities could be categorically excluded from routine evaluation (findings akin to a FONSI) were not arbitrary or capricious. Thus, no EIS was required. See Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1556 (2d Cir. 1992).

41
We also reject petitioners' argument that by not considering RF interference with medical devices, the FCC has failed to take the required hard look at the environmental consequences of its actions in violation of NEPA.

42
NEPA only requires agencies to consider environmental effects, i.e., alterations to the environment that have a proximate effect on human health. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983) (psychological harm resulting from fear that relatives may be subjected to radiation too removed to be environmental harm). Assuming arguendo that RF radiation may in certain circumstances interfere with some medical devices in such a way that human health is proximately affected, thereby rendering interference with medical devices a cognizable environmental harm, the FCC still was not required to consider those environmental effects at this time. Only when individual RF facilities are constructed and operated will the circumstances arise with sufficient specificity to permit meaningful evaluation. As long as all the significant potential environmental impacts are considered in a combination of general and site-specific assessments at the time the facilities are constructed, the requirements of NEPA and the CEQ have been satisfied. Cf. Environmental Coalition of Ojai v. Brown, 72 F.3d 1411, 1418 (9th Cir. 1995) (government preparing site-specific EAs did not have to revisit health effects of RF radiation from radar installation considered on a programmatic level).

43
IV. The FCC's Preemption of Certain State Regulation

44
As noted earlier, while the rulemaking process was underway, Congress passed the Telecommunications Act of 1996, providing, inter alia, that

45
No State or local government or instrumentality thereof may  regulate the placement, construction, and modification of  personal wireless service facilities on the basis of the  environmental effects of radio frequency emissions to the extent  that such facilities comply with the Commission's regulations  concerning such emissions.

46
47 U.S.C.  332(c)(7)(B)(iv).

47
The FCC, as part of its rulemaking, issued a comparable interpretive ruling preempting state and local governments from regulating, based on RF emissions, the operation of personal wireless service facilities that are in compliance with the FCC regulations concerning such emissions. Petitioners claim that the FCC's interpretation is contrary to plain congressional intent. In support of their argument, petitioners point to the deliberate absence of the word "operation" from the statutory language as evidenced by earlier drafts containing the word.

48
It is now "well settled that we review deferentially an agency's construction of the statute that it is charged with administering." Linea Area Nacional de Chile S.A. v. Meissner, 65 F.3d 1034, 1039 (2d Cir. 1995) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.11, 844 (1984)). We must defer to an agency's reasonable interpretation where the statute is silent or ambiguous with respect to a particular issue. See Chevron, 467 U.S. at 84243; Fulani v. FCC, 49 F.3d 904, 910 (2d Cir. 1995). However, "[i]f the statutory language is clear, both the agency and the court must defer to Congress's intent." Linea Area Nacional, 65 F.3d at 1039; see Chevron, 467 U.S. at 482.

49
The FCC has broad preemption authority under the Telecommunications Act. See City of New York v. FCC, 486 U.S. 57, 63-64 (1988); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-700 (1984). Congress has circumscribed this authority somewhat, removing from the FCC the power to "limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction and modification of personal wireless service facilities." 47 U.S.C.  332(c)(7)(A) (emphasis added). States and local governments, therefore, retain these powers subject to explicit limitations described in subsection (B). Appellants argue that the absence of the word "operation" from subsection (B)(iv) preserves for the states the right to regulate operations of wireless service facilities as well. Subsection (A) does not, however, preserve their authority to regulate such facilities' operations. Therefore, the absence of the word "operation" from the subsequent limitation on their authority under subsection (B)(iv) does not grant such power.

50
Section 332(c)(7)(B)(iv) does not amount to clear congressional intent to permit state and local governments to regulate the operation of such facilities. The FCC's interpretation is therefore entitled to deference and, because the FCC's interpretation is reasonable, we are bound to accept it.

V. Constitutional Challenges

51
Finally, we reject petitioners' argument that 47 U.S.C.  332(c)(7)(B)(iv) facially and as applied violates the Tenth Amendment. The statute does not commandeer local authorities to administer a federal program in violation of the federalism principles embodied in the Tenth Amendment and set forth in New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997). State and local governments are not required to approve or prohibit anything. The only onus placed on state and local governments exercising their local power is that they may not regulate personal wireless service facilities that conform to the FCC Guidelines on the basis of environmental effects of RF radiation. "[W]here Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation." New York, 505 U.S at 167; see City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999). We have no doubt that Congress may preempt state and local governments from regulating the operation and construction of a national telecommunications infrastructure, including construction and operation of personal wireless communications facilities. See City of New York, 486 U.S. at 63-64; Capital Cities Cable, Inc. v. Crisp, 467 U.S. at 698-700. The statute therefore does not violate the Tenth Amendment either facially or as applied. We have considered petitioners' remaining constitutional arguments and find them to be without merit.

Conclusion

52
The FCC orders are affirmed with costs to be borne by petitioners.

Notes:

1
 This standard was originally developed by the Institute of Electrical and Electronic Engineering ("IEEE"), and a subgroup within the IEEE monitors the continued validity of the standard. For convenience, we will not discuss how the responsibilities are divided between ANSI and IEEE, but refer to both as ANSI throughout this opinion.

2
 "Environmental Assessment":
(a) Means a concise public document for which a federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. (2) Aid an agency's compliance with the Act when no environmental impact statement is necessary. (3) Facilitate preparation of a statement when one is necessary. (b) Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.
40 C.F.R.  1508.9.

3
 "Finding of No Significant Impact" means a document by
a Federal agency briefly presenting the reasons why an action . . . will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. It shall include the environmental assessment or a summary of it and shall note any other environmental documents related to it.
40 C.F.R.  1508.13.