Building a Communications Tower? - Conduct the Necessary Historical Review
In a Consent Decree released this week, the Commission agreed to accept a "voluntary contribution" of $16,500 to the government from a tower owner, instead of a fine, for its failure to conduct an Historical Review of the locations of three towers prior to their construction. Under the Nationwide Programmatic Agreement which implements the National Historic Preservation Act, the construction of most new towers (essentially unless they are in Industrial zones, areas already cleared by a review, in a utility corridor or replace existing towers), require that the owners coordinate with State or Tribal Historical Preservation Officers ("SHPO" or "THPO") to assure that the new construction will not have an adverse effect on any historic site listed on or eligible for listing on the National Register of Historic Places. The burden is on the tower owner to make sure that the rules for such a review are followed, with the FCC having the power to take action against any applicant who does not conduct such a review. A full description of the requirements of the Programmatic Agreement can be found on the FCC's website, here.
This decision demonstrates how seriously the Commission takes these requirements. In this case, the tower owner realized that it had constructed the tower without having done the proper review, conducted that review, found that there was no impact on any historic location, and voluntarily reported its failure to the FCC. Nevertheless, the Commission agreed to the fine, plus a requirement that the tower owner appoint a compliance officer and submit reports to the FCC of its compliance with the environmental laws for a period of two years. Constructing a tower? Make sure that you conduct the proper studies.
Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry
Tower Owners - Tell the FCC About Changes in Ownership
A recent decision of the FCC emphasizes that tower owners must remember to change the tower registration for any communications towers after a change in ownership, or risk a fine. In the recent decision, the FCC canceled a $3000 fine that was imposed after an FCC inspection when it appeared a change in the ownership had not been reported - but the cancellation was not because the fine was not proper, but because the tower was in fact owned by the party who the FCC records said owned it. All towers which must be registered with the FCC so that the FCC can notify the appropriate owner of any issues that may arise - and owners are subject to fines if it is discovered that the tower owner is not properly reported in FCC records. In sales of broadcast stations and other communications licenses, towers are often included assets. However, when the focus of the transaction is the sale of a radio or TV station, for which prior FCC approval is necessary, the transfer of the tower in the FCC records may well be overlooked. No prior FCC approval for the sale of the tower is needed, and the tower is not included in the FCC authorizations reported on the applications for the sale of the broadcast licenses. Thus, the parties must remember that the tower registration must be amended to report the new owner after the closing of the sale of the station. Don't forget - or a fine may result if the FCC discovers that the ownership change was not reported.
Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry
FCC Cases on Blanketing Interference - The Responsibility of Broadcasters to their Neighbors
In two recent cases, the FCC discussed the issue of "blanketing interference," the interference that can be caused by a broadcaster to electronic devices that are located in homes and businesses near to the station's transmitter site. In the first case, the FCC rejected a license renewal challenge finding that there was no specific showing of interference to protected RF devices. The FCC appends to this decision a guide to the types of interference which a broadcaster must resolve. In the second case, the Commission also denied a complaint filed against the renewal application of a radio station based on the interference that it allegedly caused in nearby homes. Here, the Commission published a set of Guidelines as an appendix to the decision - guidelines which help clarify the procedures that a broadcaster should go through to assess its responsibility to remedy interference complaints. Together, the attachments to these two cases should give stations guidance on what they should do if they get complaints of blanketing interference.
Essentially, broadcasters are required to resolve all complaints of blanketing interference which occur within a station's "blanketing contour" (1V/m for AM stations, 115 dBu or 562 mV/m contour for FM stations) during the first year of a station's operation from a particular transmitter site to "RF devices." These include radios, TVs, and VCRs with tuners in them. Licensees are not required to resolve complaints to mobile receivers. Telephones, phonographs, tape recorders or devices using high gain antennas also are not covered. After the first year, stations, while not fully financially liable, do have the responsibility to provide information and assistance about how to resolve the interference to the person who is suffering that interference. The Appendix to the second case states that licensees will have to respond to all complaints filed with the FCC and provide details of what they have done to address interference complaints. So broadcasters should be aware of their responsibilities, and take appropriate actions based on the guidelines set out by the FCC.
Posted By David Oxenford In General FCC , Tower Issues | Permalink | 0 Comments | Email entry
FCC Cuts No Slack on Fines - Temporarily Unfenced Tower, Expired STA, Former Owner - All Draw Fines
The FCC today issued three orders imposing fines on broadcasters - cutting no slack to anyone. These cases demonstrate how important strict compliance with all FCC rules is to avoid fines before the current Commission. The first decision imposed a fine of $2800 on a broadcaster for having an unfenced tower - where the broadcaster claimed that the fence was temporarily removed to facilitate the clearing of brush as required by local authorities to remove a potential fire hazard. While the FCC seemed to recognize that the fence removal was temporary, and that it was missing for only a few weeks while weed killer was being applied at the site, the Commission still imposed the fine - requiring that access to an AM tower always be restricted, prohibiting open access even for a short period.
The second case was a decision which imposed a fine of $2000 on a broadcaster for operating from an unauthorized transmitter site. While the broadcaster had received Special Temporary Authority (an "STA") to operate from the site, the STA expired. The broadcaster filed an extension request, but forgot to include the filing fee check. The broadcaster claims that he re-filed the request, and had a canceled check to prove it, although the Commission had no record of the re-filed STA (though the FCC did acknowledge having received the check). Finding that it had no record of the re-filed STA, and further finding that the applicant should have inquired about the failure to receive an STA extension after 180 days (the length of an STA), the Commission imposed the fine on the broadcaster. While this case is certainly complicated by the missing extension request, given the canceled check one would assume that broadcaster must have filed something, and the FCC's usual rule is that if an STA extension is on file, the station can continue to operate. Of course, with an extension that was pending for 2 years, probably some inquiry was warranted. But whether it was a $2000 mistake is a different question.
Continue Reading Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 1 Comments | Email entry
FCC Allows Automated Monitoring System to Substitute For Visual Tower Inspection
The FCC recently released a decision granting two waivers of its requirement that any communications tower which has lighting requirements and is registered with the FCC be visually inspected at least quarterly to insure that all of the required lights are working. The waivers were granted to American Tower Corporation and Global Signal, Inc., both operators of thousands of communications towers nationwide. The waivers were based on showings by the companies that the automated systems that they employ to monitor tower lights were sufficiently robust that they could insure that the lights were operational even without visual inspection. The Commission stressed the reliability of the monitoring systems, and the cost savings to the companies, in granting the waivers.
The importance of this decision to other owners of communications towers came in the concluding paragraph of the FCC decision. There, the Commission stated that this decision paved the way for other tower owners to adopt sufficiently reliable systems so that similar waivers could be granted. Thus, for companies with multiple towers, this decision may give them the incentive to install similar systems and seek waivers of the tower inspection rules. For other companies, this decision reminds them of their visual inspection obligations (and the records that should be kept of such inspections to be available in the event of an FCC inspection).
Posted By David Oxenford In Tower Issues | Permalink | 1 Comments | Email entry
Fines for Tower Violations Remind Broadcasters to Mind FCC Rules
The FCC last week considered two requests for reconsideration of fines issued to broadcasters for violations of FCC rules relating to their broadcast towers. While the FCC reduced one fine because of the licensee's inability to pay the amount originally specified, both broadcasters will have to make payments to the Commission because of their failures to meet the FCC's rules regarding the ownership of broadcast towers. These cases remind broadcasters of their obligations to meet the Commission's tower rules, and should cause all broadcasters to check their compliance.
In the first case, the FCC reduced the fine of a licensee who had failed to fence its AM station's tower, but only because the licensee proved that it could not pay a higher fine. But a $500 fine was still imposed as the owner had no fence around a series-fed AM tower. The FCC pointed out that its rules require that any AM tower that has the potential for an RF radiation hazard at the base of the tower must be fenced. This station had violated that rule.
Continue Reading Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry
FCC Extends Date for Comments on the Impact of Towers on Migratory Birds
On Friday, the FCC announced an extension of time in which comments can be filed in its proceeding to assess the impact of broadcast towers on migratory birds. We reported on this proceeding here. The order granting the extension noted that most of the active parties in the proceeding, including both conservation groups and communications trade associations, backed the extension. Comments, which were due on January 22, will now be due April 23, with Reply Comments due May 23.
Together with the pending FAA proceeding which raised the possibility of requiring FAA approval for the addition of any new communications user on a tower (about which we reported here), the outcome of this proceeding is very important to all communications companies, as an adverse outcome could greatly complicate the already difficult process of constructing communications towers.
Posted By David Oxenford In Tower Issues | Permalink | 0 Comments | Email entry
NPRM Adopted Seeking Input on the Protection of Birds
As anticipated, the FCC adopted a Notice of Proposed Rule Making (NPRM) at this morning's open meeting, which seeks input on measures to protect migratory birds from communications towers. Based on the comments at this morning's meeting, the NPRM tentatively concludes that the FCC has the authority to enact rules to protect migratory birds from communications towers and facilities, but requests further comment on whether the available evidence supports FCC action, or whether other statutes, such as the Migratory Bird Treaty Act, compel FCC action. The FCC's News Release regarding this item is available here.
Having tentatively concluded that it has the authority to act in this arena, the NPRM contains a number of proposals aimed at mitigating the effect of communications towers on migratory birds. For example, the NPRM suggests that the FCC's rules conform to the FAA's approach of preferring medium strength white strobe lights over red lights. The NPRM also requests input on other lighting regimes, such as using red strobes rather than white. Most significantly, the item seeks input on whether the FCC should adopt guidelines on guy wires, height, and location of communications towers, as well as measures to encourage the co-location of antennas on existing structures. Comment is also sought regarding the impact that any FCC rules in this area would have on other environmental issues, such as historical preservation and wetland protection. Finally, the item addresses how applicants would prepare an environmental assessment under the FCC's rules if it is determined that a particular project would have an impact on migratory birds.
Further information, as well as the specific dates for submitting comments in this rule making proceeding, will be forth coming and we will be sure to keep you posted so that interested parties can file comments on this issue.
Posted By Brendan Holland In Tower Issues | Permalink | 0 Comments | Email entry
Item Regarding Migratory Birds to Take Flight at Nov. 3rd Meeting
As we mentioned last month, the FCC has been considering a Notice of Proposed Rule Making regarding the effects of communications towers on migratory birds. The item has made the rounds through the Commissioners' offices, and it appears that the Commission is now ready to act on the item, which has been included on the agenda for the Commission's Open Meeting scheduled for Friday, November 3, 2006. Back in 2003, the Commission issued a Notice of Inquiry on this matter under then-Chairman Michael Powell, and opened a proceeding as docket WT 03-187. Now three years later, it appears that the matter has matured into an NPRM, with comments likely due the first part of next year. It is possible that this rule making could make it more difficult to construct new towers or modify existing ones, so check back after Friday's meeting for a summary of the proposed rule making.
Posted By Brendan Holland In Tower Issues | Permalink | 0 Comments | Email entry
AM Tower Fencing Requirements Cannot be Delegated
In a decision released Friday, the FCC's Enforcement Bureau imposed a fine of $7000 on a station for violation of Section 73.49 of the Rules, requiring AM station towers with the potential for RF radiation at their base to be completely enclosed within a fence or other secure enclosure. What was notable about this decision is that the FCC rejected claims that the station should not be fined because it did not own the tower.
The Enforcement Bureau found that Section 73.49 imposed a duty on AM licensees, not on tower owners. Thus, the duty to fence the tower is one that the licensee is responsible for meeting, even if some other party owns the tower.
The FCC noted that for all other towers, the primary duty for maintenance and repair of a tower is on the antenna structure owner, but even then the FCC imposes a secondary duty on the licensee to make sure that all legal obligations are being met. While the FCC left for another day the issue of what would happen if a licensee did not meet that secondary duty in some case not involving an AM station, they made clear that, for AM stations, the licensee cannot delegate the responsibility for the fencing obligation.
Posted By David Oxenford In AM Radio , FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry
NPRM on Towers and Their Impact on Migratory Birds Could be Forthcoming
It has been reported that a draft Notice of Proposed Rule Making regarding the effects of communications towers on migratory birds is circulating among the Commissioners. In April of this year, it was reported that an NPRM on this issue was expected in the (then) near future. (See for example, TelecomWeb and BroadcastEngineering.) It's now the end of September, and it seems this item is finally gaining traction, according to trade press reports. These reports indicate that Chairman Martin's office is circulating a draft NPRM on the issue on among the FCC Commissioners. In 2003, the Commission issued a Notice of Inquiry on this matter under then-Chairman Michael Powell, and opened a proceeding as docket WT 03-187. Although the NPRM was not included on the agenda for this week's Open Meeting, it seems the item is no longer on the back burner. Together with the FAA's current proceeding on requiring additional FAA applications when changes are made to communications towers (which we discussed in June, here), this new proceeding could make construction and modification of new towers more difficult. Parties interested in commenting in this proceeding should sharpen their pencils and update their data, to be prepared when the NPRM is actually released.
FAA Proposes Changes in Affecting Tower Users
The FAA had just begun a rulemaking proposing to change their treatment of Determinations of No Hazard for communications towers. Currently, the FAA reviews not only the structural effect of proposed tower construction on the safety of air travel, but also the electromagnetic effects of the proposed tower user on aircraft communications, radar and other aviation electronics. Until now, there have been no FAA regulations dealing with changes to towers that that have already been approved by the FAA where the changes do not affect the height of those towers. So when additional users were added to existing towers, no FAA approval was necessary.
The Notice of Proposed Rulemaking proposes requiring prior FAA approval for all changes to communications towers, through the addition of new communications users to a tower (if those users operate in certain frequency bands, including broadcasting, paging, fixed wireless and several other services). Also, prior FAA approval would be required if there was an increase in power of existing tower users or other significant change in the radiation characteristics of a tower user operating in these frequency bands. Obviously, seeking FAA approval can increase the time necessary to make such changes. In the past, we have also run into problems with the FAA's computer programs being overly sensitive and rejecting proposals that the FCC would not find to be an issue. To the extent that you lease space on your towers to other users, this could present a new layer of bureaucracy to any lease.
Also, the FAA proposes to change the period for which a Determination of No Hazard is effective. Currently, if you have an FCC construction permit, the Determination is good for as long as the authorization is good, including any extensions of the FCC authorization that may be granted by the FCC. The FAA proposes that the Determination now be good only for so long as the initial FCC construction permit is valid - and that if you request an extension from the FCC, you must also get an extension of the Determination of No Hazard from the FAA. For broadcasters nearing the end of a construction permit, facing the need to make a last-minute change in facilities, the need for prior FAA approval could present major obstacles to getting FCC approval for the change in time to complete construction before the permit expires.
Comments on these proposals are due by September 11. We may have a group of clients that are filing comments. If you are interested, please let us know.
The FAA proposal can be found at: http://dmses.dot.gov/docimages/p85/401410.pdf