FCC’s New Rules Regarding Antenna Tower Safety and Maintenance to Go into Effect
September 29, 2014
On October 24, 2014, the Federal Communications Commission’s (“FCC” or “Commission”) new rules regarding construction, marking and lighting of antenna structures (“towers”) become effective. These new rules are intended to streamline tower owners’ regulatory obligations. However, the rule revisions do leave many of tower owners’ substantive requirements in place and rather focus on providing relief from various procedural burdens. In the words of at least one Commissioner, such relief is “long overdue.” The most notable specific changes are summarized as follows.
Antenna Structure and Lighting Specifications
Many of the Commission’s new rules are intended to bring its procedures in line with those of the Federal Aviation Administration (“FAA”). For example, in the past, the Commission required tower owners to notify the Commission within 24 hours of construction or dismantlement, and to provide immediate notice of changes in height or ownership. In contrast, the FAA allowed tower owners five (5) days to provide such notice. Fortunately, the FCC’s new rules bring the two agencies requirements into harmony and now provide tower owners a similar five (5) day reporting period for tower structural or ownership changes.
Similarly, the FCC clarified the rules to require prior Commission approval for any change of one foot or greater in height, or one second or greater in location, as compared to the height or location data provided on the tower’s Antenna Structure Registration (“ASR”) Form. This clarification again moves the FCC’s rules in line with the FAA’s requirement that tower owners complete a new aeronautical study and receive a determination of “no hazard” by the FAA before making such changes. In addition, the FCC’s new rules will simply require tower owners to comply with the FAA’s “no hazard” determinations rather than the requirements of specific FAA circulars.
With respect to tower registration, the Commission took several positive steps to streamline its rules. For example, the Commission is changing the tower registration form to allow owners to designate when a particular registration has been completed voluntarily (as opposed to a required registration), and the Commission further clarified that its lighting and marking requirement will not apply to voluntarily registered towers. The Commission will also now allow tower owners to post a tower registration at the closest publicly accessible location near the antenna structure base. In the past the Commission’s rules required tower owners to post the tower’s registration in a location where it was both readily visible to the public and near the base of the antenna structure. Often times, this was not logistically feasible, so the Commission’s relaxation of this requirements will be a welcome relief for many tower owners. Finally, the Commission amended its rules to allow tower owners to provide copies of the tower’s ASR Number and ASR Form information to new tenants electronically rather than in hard copy as was required in the past.
Maintenance of Marking and Lighting
With respect to tower inspections, the new rules allow tower owners to forego certain required inspections. Previously, tower owners had to inspect, at least quarterly, all automatic or mechanical control devices, indicators, and alarm systems associated with the antenna structure lighting to ensure that they are functioning properly. The Commission’s proposed exemption from this inspection requirement affects three specific groups of tower owners: (1) those that were previously granted waivers for their antenna structures monitored by approved systems; (2) those that employ approved systems but have not yet sought approval from the Commission; and (3) those that employ new systems for which no antenna structure owner has been granted waiver relief by the Commission.
Tower owners that were previously granted a waiver for their antenna structures monitored by qualifying systems are exempt from all inspection obligations, as long as they continue to meet the advanced monitoring obligations to which they have already certified. Other tower owners that have not yet sought a waiver but use an advanced monitoring system that has previously been approved by the Commission may also certify that they are eligible for an exemption from the inspection obligations with respect to any antenna structure monitored by a fully-staffed Network Operations Center (“NOC”). These tower owners must provide a certification and supporting documentation demonstrating that they use an advanced monitoring system that has been previously approved by the Commission, and that their antenna structures are still monitored as described in the order granting a waiver for that system. In addition, to qualify for the exemption the antenna structure owners must certify that the NOC must be able to receive notifications of any failure of the monitoring system. Finally, tower owners that employ new systems that have not yet been certified by the Commission may continue to petition the Wireless Telecommunications Bureau (“WTB”) for a waiver pursuant to the same standards that were in place prior to the rule revision.
Similar to the Commission’s attempts to harmonize its antenna structure and lighting specifications with those of the FAA, the Commission adopted several changes to its rules regarding maintenance of marking and lighting to bring them in line with the FAA’s requirements. For example, the FCC now requires tower owners to provide the FAA with continuing updates of the status of lighting outages so that the FAA can issue accurate Notices to Airmen (“NOTAMs”) throughout the period that the tower remains unlit. In the past, the tower owner only had to provide the FAA with an initial notice of the problem. The Commission has also adopted a single standard for the repair of antenna structure lighting and automatic indicators or automatic control or alarm systems, and clarified that tower owners are only required to maintain a record of extinguishments or improper functioning of tower lights for a period of two years. Finally, the Commission adopted the FAA’s “In Service Aviation Orange Tolerance Chart” as the benchmark for determining whether a tower needs to be cleaned or repainted.
The above provides an outline of the FCC’s rule changes. However, it is not an exhaustive list. The full text of the Commission Report and Order can be found here. The Federal Register publication of the new rules can be found here.
Parties interested in learning more with respect to taking full advantage of the new rules to reduce their compliance obligations should contact Rob Gastner at 202.659.6674.
This Utilities and Telecommunications Alert is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.
© Eckert Seamans Cherin & Mellott, LLC, 2014, all rights reserved.