Broadcast Law Blog : Broadcast Lawyer & Attorney : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

Failing to properly maintain a communications tower can be expensive, as a number of FCC decisions released in the last few days demonstrate. In several decisions reached in the last week, the Commission faulted tower owners for all sorts of problems – tower lights being out without letting the FAA know, faded paint, missing fencing around an AM tower, tower registrations that had not been updated after a sale, and the failure to post the tower Antenna Survey Registration Number (“ASRN”) at the base of the tower so that the FCC could identify the tower owner. These cases provide a survey of the many issues that tower owners can have – ones that can bring big FCC fines.

In the case with the largest proposed fine - $25,000 – the FCC faulted a tower owner for having a tower with faded paint and no posted ASRN that was visible at the base of the tower. In addition, the FCC tower registration had not been updated to reflect the name of the current tower owner – even though the owner had bought the tower 10 years before. After an FCC inspection identifying the issues, the licensee promised that they would be remedied. But, according to the decision, two more inspections were made by FCC inspectors within 15 months of the first inspection, and the problems all remained. The failure to correct the errors after being repeatedly warned brought about a $10,000 increase in the fine from what would be normally warrant a penalty of approximately $15,000. Clearly, if the FCC tells you something is wrong – fix it, or face increased liability for the problems. The FCC does not like to be ignored.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Fines for broadcast station tower owners who fail to maintain the required lighting on their tower are not unusual. But in a decision last week, the FCC made clear that, even if the licensee of a broadcast station is not the tower owner, it still has the responsibility for dealing with tower lights that are out, even if the tower owner does not. The failure of the licensee to maintain the tower lights, and other related issues, resulted in an $11,000 fine issued by the FCC.

The case was unusual in that the broadcast licensee, and the company from which it bought the station, were arguing over who owned the tower – not contending that the each owned the tower, but instead each pointing to the other as the one with the responsibility for the maintenance of the tower. The former owner of the station maintained ownership of the underlying land, but claimed that the tower was conveyed to the new station owner. The licensee claimed that the tower was still owned by the former owner, and that former owner should be responsible for the tower lights. The FCC reviewed the contract between the two parties, seemed to conclude that the licensee had in fact acquired the tower, but said that the final determination on that issue was one for local courts, not the FCC.  But even if the licensee did not own the tower, it still had the responsibility for the tower as licensees have the responsibility to insure that the tower lighting requirements in their licenses are met. This obligation is set out in Section 17.6 of the Commission's rules and in various policy statements.  Thus, no matter who owned the tower, the licensee was still subject to the fine for the lights not being operational.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a Notice of Apparent Liability, the FCC proposed a $14,000 fine on a broadcaster for a series of violations with respect to its tower. The FCC found that the station failed to have the required lights on the tower operating after sunset on at least two days, failed to notify the FAA of the outage (so that the FAA could send out a NOTAM – a notice to "airmen" notifying them to beware of the unlit tower), and failed to properly register the tower when the current owner acquired the station from its previous owner. As the tower had been sold over 3 years prior to the inspection that discovered the tower lights being out, the FCC determined that the violations were particularly egregious, and upped the fine - which would have been $10,000 for a failure to have the lights operating, and $3000 for failing to update the Antenna Structure Registration ("ASR") by an additional $1000. As noted below, updating tower registrations is considered very important by the FCC as, in another recent decision, the FCC proposed a $6000 fine merely for the failure of a licensee to update a tower registration. 

The case also showed the importance of keeping accurate records of the observation of tower lights. While the FCC did not specifically fine the station owner for not logging the tower light inspections, it did note that there was confusion between the station owner and engineer as to who was inspecting the tower lights and how often they were being inspected, when first asked by the FCC inspector. While records were later provided by the licensee that supposedly showed that the tower lights were inspected on a daily basis, the records were inconsistent and seemed to contradict the observations of the FCC inspectors. What do the rules require?

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The over-the-air reception of television stations has taken on heightened awareness in recent years.  In the regulatory world, this prominence comes from the FCC's consideration of taking back some of the broadcast spectrum for use by wireless broadband based at least partially on the Commission's belief that broadcasters are not using that spectrum efficiently as many viewers,over the last few decades, receive their TV programming from satellite and cable providers.  At the same time, there have been more articles in the press and anecdotal stories about the new importance of over-the-air reception as people "cut the cord', getting their video programming from some combination of over-the-air TV and the Internet.  Regardless of the truth of either perception, since the conversion to digital, issues about TV antennas have become more important as, in many places, an outdoor television antenna is necessary (or preferable) for decent over-the-air DTV reception.  One issue that many television broadcasters have overlooked is that of OTARD - the FCC rules on over-the-air reception devices.  As we wrote here, these rules have been interpreted to significantly limit the ability of landlords and local governments to adopt zoning rules or restrictive land-use policies forbidding outdoor TV antennas or small satellite dishes for the reception of video programming. This week, the FCC asked  if the restrictions on local authorities should also apply to common areas of housing complexes. 

The rules have traditionally been applied to restrict limitations on antennas and small dishes on property owned by the party wanting to make the installation, or property leased by that party and  even to common areas under the exclusive control of the lessee (like the portion of a driveway or parking area reserved for use by the tenant).  The FCC has allowed landlords and tenants associations to restrict the placement of OTARD devices in common areas not subject to tenant control.  But the FCC has not addressed whether local government authorities can restrict the location of antennas and dishes in these common areas.  The Satellite Broadcasting and Communications Association and DISH and DirecTV have asked the FCC to rule that, under OTARD rules, local authorities can't pass laws restricting the location of TV antennas and small dishes in these common areas, reasoning that if the owners of the land don't care, government should not be able to restrict the use of reception devices there, just as the government can't restrict the installation of these reception devices on property under the control of a tenant or home owner.  This week, the FCC asked for comments whether the OTARD rules should apply to government restrictions over TV reception devices in these common areas.  Comment are due on June 7.  Reply Comments are due on June 22.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Communications towers that are not lit as required often bring big fines from the FCC.  In two decisions released today, the Commission followed that precedent.  In one case, the FCC proposed a fine of $17,000 to a tower owner after repeated promises to fix lights that were out did not result in any resolution of the issue after 2 years (problems which, according to the FCC decision, were first brought to the tower owner's attention by the FCC).  The FCC's order also said that the tower owner stated that its protocol was to examine the status of the tower lights quarterly, even though the FCC's rules (Section 17.47(a)) require that there be a direct visual check, or a check of an authorized monitoring system, every 24 hours.  The owner was also required to report to the FCC, within 30 days, stating that that the required lights were back on or with a specific timetable for doing so. 

In a second case, the FCC proposed a fine to the same company for $15,000 for perceived issues at another tower, and indicated that they thought that there might be a systematic problem with the company's practices - ordering the company to report to the FCC on the compliance status of all of its towers.  These decisions are indicative of how seriously the FCC considers its tower lighting and monitoring rules, given their potential impact on public safety.  So remember to check your tower lights daily, report outages to the FAA when they occur, and promptly fix any problems that may exist. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In every license renewal application, applicants must certify that their operations are in compliance with the RF radiation standards set out in Section 1.1310 of the Commission’s rules. In connection with the renewal applications of two Hawaii FM stations, the FCC issued short-term one-year renewals of the station’s licenses, rather than the normal 8 year renewals. The Commission’s decision chronicles a period that spanned several years where the FCC twice found the stations to be in violation of the RF radiation rules, responding to complaints from those who worked nearby. The first time the station had reported that the problem was corrected, the FCC inspected and found that it still existed. Finally, after these inspections and FCC fines for noncompliance, the stations moved to new sites that resolved the issues.

Beyond the demonstration of how seriously the FCC takes its RF radiation rules, and how broadcasters need to be truthful and accurate in reporting on the state of their compliance, the decision shows the FCC’s process of evaluating penalties when deciding whether to issue a license renewal to an applicant with a history of rule violations. The FCC has several choices when confronted at license renewal time with violations of its rules. In many cases (like public file violations that we wrote about last week), the FCC will simply issue a fine. As in this case, the FCC can issue a short-term renewal. But, in the case of serious violations, the FCC can “designate a case for hearing”, meaning that they send the renewal application to an administrative law judge (a judge who is part of the FCC) to hold a trial-type hearing to determine if the license should be revoked. When is that most serious option pursued?

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

With the recent publication in the Federal Register, several new Commission rules and policies regarding communications towers and migratory birds are now on the books, however, they are not yet effective as the collection of information still requires OMB approval.  The Commission's new rules are an outgrowth of a decision from the Court of Appeals in 2008 in which the court found the FCC's tower registration procedures to be inadequate.  In its Order on Remand released December 9, 2011, the Commission revised its rules governing the review and registration of proposed broadcast and communications towers to provide greater opportunity for comment by the public and interested parties. In addition, while this Order does not resolve the ongoing FCC rule making regarding the impact of towers on migratory birds it does adopt interim policies regarding certain tower proposals.  The Commission's new rules require the following:

• Prior to the filing of an antenna structure registration for a new tower or antenna structure, members of the public must be given an opportunity to comment on the potential environmental effects of a proposal.  Thus, an applicant for a new tower that requires antenna structure registration, or a modification of a registered tower that would have a significant environmental impact, must initially submit a partially completed tower registration form (Form 854) and give local notice of the proposed tower through a local newspaper or local zoning public notice process.  After local notice has been provided, the FCC will post the partially completed registration form on its tower website for 30 days notice.  Members of the public may then file comments or to request further environmental review of the proposed tower.  The FCC staff will consider any comments received from the public to determine whether an Environmental Assessment is required for the tower. Notably, this additional period for public review and comment will be required for all towers requiring registration in the FCC's ASR database, even if the applicant has determined that the proposed tower will not have a significant environmental impact and that a complete Environmental Assessment is not required.

• Environmental notice will also be required if an applicant seeking to register an antenna structure changes the lighting of an existing tower to a less preferred lighting style.

• Proposed towers that require an Environmental Assessment must file such assessments with the antenna structure registration application and the Environmental Assessment will be considered in the context of the tower registration, rather than considered with a service-specific license or permit application.  Previously, some environmental assessments were filed with the license application and considered by the FCC Bureau issuing the service license or permit (for example, by the Media Bureau as it issued a radio or television station construction permit.) 

• Institute an interim procedural requirement that an Environmental Assessment must be filed for all proposed registered towers over 450 feet in height.  FCC staff will review the Assessment to determine whether the tower will have a significant environmental impact. This processing requirement is an interim measure pending completion of the ongoing programmatic environmental analysis of the FCC's antenna structure registration program to determine what changes, if any, are necessary to consider the impact of towers and tower lighting on migratory birds.

Once OMB approval is received for the collection of information required by these new rules, the FCC's Wireless Telecommunications Bureau will issue a further Public Notice establishing the date on which these new environmental notification requirements will become effective.  According to the Order, antenna structure registration applications that are pending on the effective date ordinarily will not be required to complete the new environmental notification process.  Given the new requirements for public notice and the ability for interested parties to file comments electronically through the FCC's tower registration database, these additional procedures will add add more time to the process of proposing and building a new broadcast or communications tower.  Stations or parties interested in building new towers are advised to review the Commission's new procedures carefully and plan on additional lead time when considering new construction.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week, I did a presentation on the issues facing broadcasters at the Kansas Association of Broadcasters annual convention (a copy of the slides from my presentation is available here).  I spoke about some of the day-to-day issues that can get broadcasters into trouble, as well as some of the big policy issues that broadcasters need to consider.  My presentation was preceded by a session conducted by the agent in charge of the Kansas City field office of the FCC, who emphasized the many issues that the field agents discover at broadcast stations that can lead to fines.  In the week since I returned from Kansas, it seems like the FCC has wanted to demonstrate the examples given by their agent, as there have been a large number of fines demonstrating the breadth of technical issues that broadcasters can face.  Fines (or "forfeitures", as the FCC calls them) were issued or proposed for issues ranging from faded tower paint, tower light outages, EAS problems, operations with excess power, and the ubiquitous (and very costly) public file violations.  Fines of up to $25,000 were issued for these violations - demonstrating how important it is not to overlook the day-to-day compliance matters highlighted in my presentation.

The largest of these fines was for $25,000.  This fine was imposed on a station for failing to have operational EAS equipment, not having an enclosed fence around the antenna site, and a missing public file.  The fine was originally proposed in a Notice of Apparent Liability (the first step in imposing an FCC fine, when the FCC spells out the apparent violation and the fine proposed, and the licensee is given time to respond to the allegations), released in July (see our post here).  The licensee failed to respond to the Notice of Apparent Liability, thus the fine is now being officially imposed.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Among the many things that broadcasters need to remember when they buy a broadcast station is making sure that the tower registration (the "Antenna Structure Registration" or "ASR") for that station is transferred along with the rest of the station assets.  Unlike most registrations and filings done at the time of the Closing of a sale of a broadcast station, the issue is not one of establishing the rights or title to any tower assets that are transferred with the station.  Instead, the registration is to let the FCC know who is responsible for that tower in the event the FCC needs to get in touch with the owner to deal with tower lighting or fencing issues or similar matters.  Many broadcasters may think that this transfer of the tower registration is automatically done when a station is sold, in connection with the FCC approval of the assignment of license or transfer of control.  It is not - a separate filing on FCC Form 854 is necessary.  In a decision just released by the FCC, a fine of $3000 was levied against a broadcaster whose tower was registered in the old owner's name, 3 years after the tower and the stations that broadcast from that tower were sold to the current owner.

The base fine for an inaccurate tower registration is $3000.  In this case, the FCC reduced a $6000 fine issued because two towers were not registered.  As the two towers were part of a single AM station array, were physically adjacent to each other, and as the current owner was found easily when the station was called, the FCC reduced the fine to $3000.  However, it noted that it could impose a higher fine if there was a more dangerous situation, or if a case arises where it is more difficult to find the real tower owner.  We've written about similar fines before.  The FCC views tower registration as very important.  So make sure that the owner of your tower is accurately registered with the FCC - and don't forget to update the sign at the tower site identifying the ASR, and make sure that the sign is kept in good repair and is visible from a publicly accessible location so that FCC inspectors or others can identify the tower they are looking at, as incorrect signage can increase the amount of any fine for tower site issues.  Note that Section 17.4 of the Commission's rules, which sets out the tower registration requirements, also requires that tower owners provide all tenants with the tower registration number.  Observe these details, or risk an FCC fine. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Three recent FCC cases demonstrate how seriously the FCC views tower site issues - imposing fines up to $14,000 for various violations of FCC rules.  One $14,000 fine was in a case where an AM station's tower was enclosed by a fence that was falling down and did not enclose areas of high RF radiation as required by Section 73.49 of the rules.  The station also had a main studio that was unattended on two successive days, and had no one answering the phone on those days - no one to respond to the FCC's calls.  The FCC broke the fine down as $7000 due to the lack of fencing, and $7000 to the unattended main studio.

In the second case, the FCC, the FCC fined a station $10,000 for areas of high RF radiation that were not fenced or marked by signs when the FCC conducted its inspection, and $4000 for operating overpower.  The Commission measured the overpower operation on one day, inferred that it had been in place the previous day, and thus deemed the violation repeated.  The Commission found that the station's tower was fenced, but that there was high RF outside the fence, leading to the fine.  The third case was one where the Commission found that the top flashing beacon on a tower was out on two successive days, even though the required steady lit obstruction lights on the side of the tower were operational.  While the licensee notified the FAA of the outage three days later (with no noted prompting from the FCC), and had the situation corrected two days after notifying the FAA, the Commission also determined that the the violation was repeated and willful, leading to a $10,000 fine.

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The FCC has released the comment dates for its draft rules setting out when Environmental Assessments are needed to formally evaluate the environmental impact of the construction and major alteration of communications towers.  We wrote about these draft rules here, and described their history -  growing out of concerns by conservation groups about the effects of communications towers on migratory birds.  Comments on the Commission's Draft rules are due on May 5. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The question of the environmental impact of the construction or significant alteration of a communications tower has been a matter of controversy for quite some time.  Three years ago, when conservation groups challenged the FCC's procedures on the approval of towers and the consideration of the impact that such towers have on migratory birds, the US Court of Appeals ordered the FCC to include more public participation in the determination of whether those towers required detailed environmental studies ( an "environmental assessment" or an "EA") before they could be built.  This week, the FCC sought comments on their Draft Environmental Notice Requirements and Interim Procedures for its Antenna Registration Program.  These rules propose:

• That, before an Antenna Structure Registration ("ASR") is issued by the FCC, any applicant must first give public notice of the construction in a local newspaper or other local media source.  The proposal will also be listed on the FCC's website.  These notices are to allow the public to comment on the proposal.   
•  If an EA is required, the FCC will process that assessment before the filing of the ASR
• An EA will preliminarily be required for all requests for an ASR for towers of more than 450 feet to determine its impact on migratory birds, though the FCC may modify this requirement after further study.

This proposal is somewhat tracks the proposed requirements for an EA that were set out in a settlement agreement between many affected parties, including conservation groups, the NAB and CTIA - an agreement about which we wrote here.  That agreement, while conclusively requiring an EA for towers of over 450 feet, stated that towers between 351 and 450 feet would be dealt with on a case-by-case basis, and left open the question of whether an EA would be required for towers of 350 feet or less. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

FCC tower lighting and marking violations are among those treated most seriously by the FCC, given their potential for tragedy should there be an incident with an aircraft due to improper tower maintenance.  Today, in two Notices of Apparent liability, the FCC proposed fines against tower owners for such violations.  In one case, where the lights were apparently not functioning and the FAA had not been notified of the outage as required, the proposed fine is $10,000.  In that case, the FCC cited the owner for failing to observe the lighting and painting requirements, and not observing the tower to determine if the lights were operational, and not having an automatic monitoring system to check on those lights (see our post here about how the FCC allows such systems to, in many cases, substitute for routine visual monitoring).  In a second case, where the issue was only with the painting of the tower, the fine was $4000.  In either case, these fines are significant, and serve as a reminder to tower owners to observe the mandatory tower painting and lighting requirements attached to their communications tower.  Remember, FCC fines pale in comparison to potential liability if the failure to observe the marking requirements lead to some more serious incident. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Operating a communications tower can always lead to issues, but two recent FCC decisions give tower owners some degree of relief. In one decision, the Commission’s Audio Services Division rejected a petition filed against the construction of new facilities for an AM station in Wasilla, Alaska – rejecting claims that the FCC’s RF radiation standards were not strict enough to protect local residents. In another case, the FCC determined that towers using an automatic system to monitor tower lighting – the “RMS system" – did not need to physically inspect the lights on the tower every quarter, as now required, but instead could do so annually, and set up an expedited system for approving tower owners who want to take advantage of this flexibility. 

The first case, dealing with RF radiation, may be dismissed by some as just a decision stating the obvious – that a station that complies with the FCC’s RF radiation standards should be allowed to be constructed. But it is not always so simple. We have had clients face situations in many areas around the country where local residents complained about a new broadcast facility – blaming it for everything from the failures of electronic equipment to the health problems of nearby residents. Various organizations have espoused theories that the FCC’s RF standards are insufficient to protect the public, and their theories are often publicized through the Internet. And sometimes, these complaints can be brought to local elected officials who, not wanting to anger local voters, try to make an issue out of what should be a fairly straightforward analysis.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The FCC today announced that it will be holding a series of three hearings to assess the environmental impact of its Antenna Structure Registration (ASR) program.  The FCC is required by the National Environmental Policy Act ("NEPA") to determine if its programs have any adverse environmental impact.  In a Court decision in 2008, the US Court of Appeals determined that the FCC had not adequately assessed its obligations under NEPA with respect to the impact of communications towers on birds after there were claims that towers killed millions of birds each year.  The hearings are to review the Commission's ASR process to gather evidence to determine whether a more extensive analysis of the potential environmental impact of tower construction is necessary when towers are constructed or modified.  In addition to the hearing, the FCC is soliciting written public comment on these proceedings. 

After the Court decision, American Bird Conservancy v. FCC, parties representing those involved in tower construction and conservation groups engaged in a series of discussions to attempt to resolve issues raised in the case.  The parties included the NAB, CTIA, PCIA, and the National Association of Tower Erectors.  Conservation groups included the American Bird Conservancy, Defenders of Wildlife, and The National Audubon Society.  These parties reached an agreement that was submitted to the FCC, setting out three levels of environmental review of tower construction, based on the height of the tower proposed.  As summarized below, the height of a proposed tower would determine if the proposal for construction had to be placed on a Public Notice by the FCC, soliciting public comment about the proposed construction, and whether the tower would need to have an Environmental Assessment ("EA") completed before it was constructed (an EA is a more extensive analysis of the environmental impact of planned construction than the Environmental Impact Statements that most broadcasters include with their current FCC applications).  The parties suggested the following:

• For New Towers above 450 feet above ground, an Environmental Assessment would need to be conducted, and any proposal would be put on a public notice to solicit public comment
• For New Towers between 351 and 450 feet, the proposal would be put on a public notice by the FCC and, after comments are filed, the FCC would decide on a case-by-case basis if an Environmental Assessment is necessary
• For New Towers 350 or less, the parties could not agree as to whether Public Notice would be required.  Resolution of whether Public Notice was required was left to the FCC. 

This proposal has not been adopted by the FCC, so it will no doubt be addressed as part of these hearings. 

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In yet another example of the importance that the FCC places on emergency communications and safety issues, an FCC Enforcement Bureau District Field Office issued a Notice of Apparent Liability, proposing to fine a radio station $25,000 for violations including an EAS system that was not operational, as well as a tower that needed repainting and with lights that were not functioning properly.  Together with various other issues - including missing quarterly issues programs lists - the FCC found that a $25,000 fine was appropriate.  This is another in a series of recent notices of apparent liability from FCC District Offices, demonstrating the high cost of noncompliance with technical and operational issues at broadcast stations.

On the tower issues, the FCC found that the tower lights, which were required to be flashing, were in either not operational at all or not flashing, and that the licensee admitted that no visual inspection of the lights had occurred in at least a week.  Citing Section 17.47 of the FCC rules, which require a visual inspection of tower lights every 24 hours unless there is an automatic inspection system (which was not present at this tower), the FCC found that there was a violation here.  In addition, the inspection revealed that the tower paint was faded and, in some places, had peeled to reveal bare steel, as the tower had not been painted since 1996.  Towers must be cleaned and painted "as often as necessary to maintain good visibility" under Section 17.50 of the FCC Rules.  The failure of the tower owner to monitor the tower lights resulted in a $2000 fine, and a $10,000 fine was imposed for the failure to repaint the tower.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night.  In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations.  At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC's Enforcement Bureau order here).  At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here).  These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station. 

The tower fencing issue is one that we have written about before.  FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations.  The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area.  The FCC has been  unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they've heard that excuse many time.  If the fence is open when they arrive, expect a fine.

Continue Reading...

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

In 2006, the FAA proposed requiring that many communications users seek FAA No Hazard Determinations not only before they make changes in the height of a tower, but also prior to frequency or power changes.  The FAA sought to review applications to determine if proposals would create any interference to frequencies used by the by aircraft and by the FAA for air navigation purposes. This review would be in addition to any review that the FCC made of interference considerations.  Many communications companies and engineering firms argued that this second layer of frequency review was unnecessary; and certain engineering groups contended that the FAA's interference programs were not accurate - finding interference where none existed.  After over 4 years of consideration,the FAA has now decided that most of the frequency blocks that it was considering did not really pose a threat to air navigation, with one exception.  The FAA determined that interference problems do arise from FM operations, and thus the FAA did not dismiss their proposal to require its approval of FM changes - even where no tower height changes are planned.

The FAA, however, apparently will not be making this decision alone.  Instead, that FAA is coordinating with the FCC and NTIA (an Administration in the Commerce Department that coordinates between various government agencies that use spectrum) to adopt policies that will govern the potential for interference from FM stations to FAA operations.   The FAA's Notice says that more information about what is to be proposed for FM stations should be forthcoming soon.  This can be a real issue for FM stations, especially ones proposing significant power increases or frequency changes in congested metropolitan areas with numerous public, private and military airfields in the vicinity. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In two separate Orders today, the FCC issued monetary forfeitures against a cable operator for failure to install Emergency Alert System (EAS) equipment and for various tower violations.  These same violations could have been cited against a broadcaster, so these cases are instructive to both broadcasters and cable operators.  The FCC issued monetary forfeitures of $20,000 and $18,000 against two Texas cable systems owned by the same company.  In both cases, the cable operator failed to install EAS equipment, failed to notify the FAA of a tower lighting outage and failed to exhibit red obstruction tower lighting from sunset to sunrise.   The higher fine related to a system's failure to display a tower's Antenna Structure Registration (ASR) number "in a conspicuous place so that it is readily visible near the base of the antenna structure."  

These same requirements apply equally to broadcast stations that have their own towers.   While most broadcasters are aware of the requirement to maintain working EAS equipment, many may not know that  FCC rules require a tower's ASR to be conspicuously displayed at the base of the tower.  To be compliant, the ASR must be displayed on a weather-resistant surface and of sufficient size to be easily seen at the base of the tower.

Continue Reading...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In a decision released last week, the FCC's Audio Division denied the application for a new noncommercial FM station which had tentatively been selected to receive a permit for a new station because the applicant did not have reasonable assurance of transmitter site availability when it originally filed its application.  This case makes clear how important that issue can be in connection with any application for a new broadcast station, and even in connection with applications for site changes by existing broadcasters.  The FCC has long required that a broadcaster, before filing an application for a new or modified station, have reasonable assurance of transmitter site availability. This obligation applies not only to full-power radio and television applications, but also to applications for low power TV (LPTV) or low power FM (LPFM) stations, and to applications for FM or TV translators as well.  The reasonable assurance requirement basically insures that the applicant is making a realistic proposal to the FCC, one that can likely be built, and not just some theoretical proposal for a site at which a station could never be constructed.  If reasonable assurance is not obtained before the application is filed, the application is subject to dismissal, as this case makes clear.

Reasonable assurance has never required a binding legal commitment for the use of a particular transmitter site, but this case makes clear that something more than a mere possibility of the availability of the site is necessary.  In this case, a representative of the application had communicated with the tower owner, who said that the tower was currently at capacity, but that it was possible that, over time, some space on the tower could become available.  The FCC's Audio Division concluded that was not enough, as it did not demonstrate a present availability to the applicant of the site at the time that the application was filed.  The FCC discussed the need for the applicant and the site owner to have a "meeting of the minds" as to the availability of the site before an applicant can specify it.  The assurance cannot be contingent on a future event that is unlikely to occur.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a recent decision, the FCC's Enforcement Bureau ruled that a tower owner should pay a fine for a single day where the required tower lights were not operational, and where no required monitoring of the tower to discover such outage was taking place.  On top of the penalty for the non-working lights, the FCC also fined the owner for the failure to report a change in ownership of the tower.  The total fine in the case was $4000 (reduced from an initial fine of $13,000 because of the tower owner's past record of compliance).

As with any FCC fine, while the fine was for one day of tower light outage, there was more to the story.  The FCC inspected the tower after receiving a complaint stating that the lights were out on a day that was almost a month before the inspection - indicating that the outage may have been in place for far longer than the one day revealed by the FCC inspection.  The tower owner admitted that the person who was supposed to conduct the required daily inspection of the tower lights had moved from the area in which the tower was located, and the owner did not know exactly when that occurred.  The owner did not get someone new to do the inspection until after the FCC inspection.  And the tower had no automatic monitoring system to determine if the lights were in fact operational.  With these admissions, it seemed clear that there was the potential that there had been a problem for a long time, so perhaps the fine was not unexpected, even though the lights were fixed within hours of the FCC report of the problem, as the issue was a simple one that the tower owner blamed on a careless repair person who had recently visited the site.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week, we wrote about the FCC fining stations for a number of violations found at the studios of some broadcast stations.  In these same cases, the FCC also found a number of technical violations at the tower sites of some of the same stations.  Issues for which fines were issued included the failure to have an locked fence around an AM station's tower, the failure of stations to be operating at the power for which they were authorized, and the failure to have a station's Studio Transmitter Link operating on its licensed frequency.

An issue found in two case was the failure to operate at the power specified on the station's license.  In one case, an AM station simply seemed to not be switching to its nighttime power - in other words, at sunset, it was not reducing power from the power authorized for its daytime operations.  The second case was one where another AM station was not switching to its nighttime antenna pattern after dark.  In that case, there were apparently issues with the nighttime antenna but, rather than request special temporary authority from the FCC to operate with reduced power until the problem was fixed, the FCC notes that the station apparently just kept operating with its daytime power.  An STA is not difficult to obtain when there is a technical issue (as the FCC does not want stations going dark if it can be avoided), and some effort is made to specify a power that avoids interference to other stations.  So, if faced with technical problems, request authority for operations that are different from those authorized by the station's license until those problems can be fixed, or risk a fine from the Commission.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week, the FCC issued several fines to broadcasters for failure to observe some basic FCC rules.  As there many FCC rules to observe, broadcasters should use the misfortune of others who have suffered from these fines as a way to check their own operations to make sure that they meet all of the required Commission standards.  In the recent cases, fines were issued for a variety of violations, including the failure to have a manned main studio, the failure to have a working EAS system, incomplete public files, operations of an AM station at night with daytime power, and the failure to have a locked fence around an AM tower.  This post deals with the issues discovered at the studios of stations - a separate post will deal with the issues at the transmitter sites. 

The main studio rule violation was a case that, while seemingly obvious, also should remind broadcasters of their obligations under the requirement that a station have a manned main studio.  In this case, when the FCC inspectors arrived at the station's main studio, they found it locked and abandoned.  Once they were able to locate a station representative to let them into the studio, they found that there was some equipment in the facility, but it was not hooked up, nor was there any telephone or data line that would permit the station to be controlled from the site.  The Commission's main studio rules require that there be at least two station employees for whom the studio is their principal place of business (I like to think of it as the place where these employees have their desks with the pictures of their kids or their dog, as the case may be, and where they show up in the morning to drink their morning cup of coffee before heading out to do sales, news or whatever their job may be).  At least one of the two employees who report to the studio as their principal place of business must be a management level employee, and at least one of those employees must be present during all normal business hours.  Thus, the studio should never be devoid of human life.  The studio must be able to originate programming, and the station must be able to be controlled from that location so that the employees there could originate programming in the event of a local emergency.  In light of these violations and others, the station in this case was fined $8000.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The threat from the recent fires to the tower farm on Mount Wilson from which many of the radio and television stations serving the Los Angeles area operate highlight the need for broadcasters to have an emergency plan in the event that some local catastrophe affects their tower site.  The fact that this fire comes near to the anniversary of Hurricane Katrina, where many broadcasters lost power, but where others where able to provide a lifeline to their communities, reminds broadcasters that emergencies can strike anywhere in the country, and broadcasters need to be ready.  The FCC's Public Notice issued this week, adopting special procedures for stations in the area affected by the fire, demonstrate that the FCC is ready to work with broadcasters to provide service in the time of a widespread disaster, relaxing many of its normal rules.  The FCC has been very good in helping stations in the event of a mass disaster - even helping broadcasters during Katrina cut through the red tape of other agencies in order to assure their continued operation.  But broadcasters need to familiarize themselves with the rules about emergency operations, and be ready to deal with a more isolated disaster that may not receive enough attention for the FCC to, on its own, relax these rules.

One of the rules highlighted by the FCC's public notice is Section 73.1250(f) of the Commission's Rules, which allows an AM station to operate at night with its daytime power in the event of an emergency.  As many AMs operate only during daylight hours, and others routinely reduce power at night or use a directional antenna that restricts radiation in directions which may contain significant populations, this ability to continue to operate with daytime power and antenna pattern at night can allow a station to fully serve its community in times of emergency.  However, a broadcaster taking advantage of this provision needs to observe the requirements of the rule.  First, it must notify the FCC that it is operating under this rule within 48 hours of beginning to do so.  If the station causes irreparable interference to another station, it may be forced to curtail such operations. Moreover, the operation must be on a noncommercial basis (apparently to limit any financial incentive for a station to abuse this provision).  And finally, one issue not addressed in the FCC's public notice about the Southern California fires, the use is only permitted if there is no other full-time service "serving the public need."  Obviously, that last clause is open to interpretation, but it would certainly seem to preclude an AM daytimer co-owned and simulcasting an FM station that covers the same are from suddenly operating at night.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An FCC decision released today reminds broadcasters of the need to notify the FCC of the completion of construction of a new broadcast auxiliary station.  Studio Transmitter Links (STL) and Remote Pickups (RPU) have for several years been licensed through the FCC's Wireless Bureau, rather than through the Media Bureau.  Unlike a grant of authority to construct a broadcast station, where the new authorization is granted in the form of a construction permit, when the Wireless Bureau grants a new authorization, it is in the form of a license.  Most broadcasters think of a license as something given to a station that is already constructed and complete. The Wireless Bureau's grant of the license, however, is conditional on the operator providing the FCC with notification upon the completion of construction within a specified period.  If no such notification is provided within the specified period (18 months for most broadcast auxiliaries, but only 12 months for some), and no extension is requested, the Wireless Bureau will automatically issue a public notice canceling the license (see the FCC Wireless Bureau website for details on how to file the notification of construction or extension request).  If the licensee does not request reconsideration of the cancellation of the license within 30 days providing evidence of timely construction, the cancellation will become final.  To operate with the facilities that had been authorized, the licensee would then have to file for a new license - starting the authorization process over from the beginning.  If the auxiliary had in fact been constructed, to continue to use it while the new application is pending, Special Temporary Authority (an "STA") would be required.

In 2006, when announcing the system that automatically generates the termination notice, the Wireless Bureau issued a Public Notice explaining the procedures that it would use.  The Commission states that its system will automatically generate a letter to the licensee providing notification of the cancellation and the 30 day reconsideration period.  Importantly, the Commission reminds licensees to keep their addresses in the FCC's systems current, as the mere fact that the letter did not get to the licensee at the correct address will not be an excuse for an expired license.  But having a correct address gives the licensee a better chance of getting the notice of cancellation if they inadvertently forget to file their notification of construction.  So remember the dates, and remember to keep your address up to date in the FCC's records.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Following the digital transition, issues with the reception of some television stations have highlighted the need for the use of outdoor antennas to receive the digital signal.  Last week, in three FCC decisions, the Commission made clear that its Over-the-Air Reception Device rules (the "OTARD rules") prohibit most zoning and other land-use restrictions, both governmental and private, on the use of such antennas.  These rules were adopted as a result of Congressional actions, and prohibit many restrictions on the installation and use of antennas used to receive television and other video signals either on private property owned by the user of the antenna or on property leased by the user.  Stations should become familiar with these rules, and let their viewers know of the rules, so that they can use them if they have problems installing antennas to receive the new digital signals over the air.

The rules apply to antennas that are one meter or less in diameter, or any size in Alaska, and are designed to receive or transmit direct broadcast satellite services, or one meter or less in diagonal measurement and are designed to receive or transmit video programming services through multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services; and antennas designed to receive television broadcast signals.  For the Rule to apply, the antenna must be installed on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property upon which the antenna is located. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A recent FCC decision shows how important it is for an applicant for a construction permit for a new or modified broadcast station, which entails the construction of a new tower, to take all steps set out on the the environmental worksheets associated with FCC Form 301 before certifying that the tower will not create environmental issues.  In the recent case, the FCC did not find that any actual environmental issues existed with the applicant's proposed construction of a new tower, but it nevertheless stated that it would have fined the applicant for a false certification if the statute of limitations for the fine had not passed.  Why?  Simply because the applicant had not touched all of the required bases before making its certification that the tower construction posed no threat to the environment.  The applicant had tried to argue that no environmental study was necessary as the site was a de facto tower farm given that there were already two towers nearby, but that claim was rejected by the FCC, finding that nearby towers do not necessarily constitute a tower farm.

The tower farm issue was interesting in that the applicant pointed to the fact that there were two existing towers within a couple hundred feet of his proposed tower, and thus the existence of these towers, plus the word that he received from local authorities that the site was a good one at which to build a site due to the lack of any perceived impacts, was not sufficient either to make the site a "tower farm" exempt from further environmental processing, nor was it sufficient to demonstrate that there was no need for further environmental study.  The FCC's staff did a thorough review of the cases about what constitutes a tower farm and, while noting that there was no clear definition in the rules, found that the two nearby towers, as they were substantially shorter than the one proposed by the applicant, were not of the same "character" as that proposed by the applicant, and thus the site was not a tower farm.  Apparently, to some degree, the FCC adopted a "we'll know it when we see it" approach to the definition of a tower farm, and concluded that they did not see it here.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In these challenging economic times, it seems like almost every day we see a notice that a broadcast station has gone silent while the owner evaluates what to do with the facility.  This seems particularly common among AM stations - many of which have significant operating costs and, in recent times, often minimal revenues.  The DTV transition deadline (whenever that may be) may also result in a number of TV stations that don't finish their DTV buildout in time being forced to go dark.  While these times may call for these economic measures to cut costs to preserve the operations of other stations that are bringing in revenue, broadcasters must remember that there are specific steps that must be taken at the FCC to avoid fines or other problems down the road.

One of the first issues to be addressed is the requirement that the FCC be informed of the fact that a station has gone silent.  Once a station has ceased operations for 10 days, a notice must be filed with the the FCC providing notification that the station is not operational.  If the station remains silent for 30 days, specific permission, in the form of a request for Special Temporary Authority to remain silent, must be sought from the FCC.  The rules refer to reasons beyond the control of the licensee as providing justification for the station being off the air.   Traditionally, the FCC has wanted a licensee to demonstrate that there has been a technical issue that has kept the station off the air.  The Commission was reluctant to accept financial concerns as providing justification for the station being silent - especially if there was no clear plan to sell the station or to promptly return it to the air.  Perhaps the current economic climate may cause the FCC to be more understanding - at least for some period of time.

Continue Reading...

• Email This
• Print
• Comments
• Share Link

The FCC last week issued an order fining a broadcast  tower owner $2000 for failure to monitor the lights on its tower.  The FCC requires that a tower owner either monitor the tower by visual inspection or by a properly installed automatic monitoring system, at least once every 24 hours.  In this case, the tower owner had an automatic monitoring system installed on the tower, yet apparently its employees did not properly monitor the system  The monitoring of the automatic system was conducted during daytime hours, when no problem was indicated - but when the tower lights themselves were not lit.  During nighttime hours, the monitoring system did apparently warn that the lights were not all in operation, but the owner's employees were not monitoring the system during those hours.  Essentially, the FCC found that a licensee must know how to monitor its own system and detect outages.  If there are outages and they are not caught within 24 hours, a licensee is looking for problems. 

As FAA and safety issues are high on the FCC's list of enforcement priorities, communications tower owners should be sure that their systems are in operating order, and properly monitored, to avoid problems.  Safety issues can result in problems, even if the station has passed a review through an alternate inspection program, given the importance of these issues and their visibility - as tower lights that are not operating can easily be seen by an inspector of from someone associated with the aviation community.  So be sure that these issues are carefully monitored. 

• Email This
• Print
• Comments
• Share Link

In a recent decision, the FCC adopted new rules for AM station proofs of performance that make the process much simpler.  We wrote about this proposal when it was advanced, here.  The order adopted a week ago allows stations installing new series fed AM directional antennas to avoid the time-consuming and expensive process of doing a full proof of performance, by instead using a computer modeling process plus a limited number of actual measurements.  Comments filed in the proceeding convinced the FCC that this process would be as accurate as the full proofs that had previously been required for new AM stations and for many changes to existing stations.  Providing this option to AM broadcasters should greatly simplify and expedite the process of completing AM construction and the licensing of such stations.

As part of this order, the FCC also asked for further comments to discuss whether the construction of communications towers - even those that do not otherwise fall under FCC jurisdiction because, for instance, they are too short to require tower registration which is primarily triggered by FAA considerations - near to AM directional towers should also be required to use this same computer methodology to determine the effect that new construction would have on the nearby AM station.  If so, would parties proposing such new construction have to notify nearby AM stations, or just some subset of AM operators (such as those that are themselves operating under program tests).  If notification is to be required, how much advance notification should be required?  Comments on this proposal are due 30 days after this order is published in the Federal Register. 

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.

 

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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...

• Email This
• Print
• Comments (2)
• Share Link

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).

• Email This
• Print
• Comments (1)
• Share Link

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...

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see FCC Extends Date for Comments on the Impact of Towers on Migratory Birds    

• Email This
• Print
• Comments
• Share Link

This article is no longer available. For more information on this topic, see FCC Extends Date for Comments on the Impact of Towers on Migratory Birds 

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.   

• Email This
• Print
• Comments
• Share Link

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

• Email This
• Print
• Comments
• Share Link