tower light outage - Broadcast Law Blog

FCC Fines Up to $25,000 for Tower Issues Including Lighting and Painting Issues, Inadequate Fencing, Tower Registration in Wrong Name and No Posted ASRN

David Oxenford — Wed, 08 May 2013 09:04:08 -0500

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.

]]>A $7000 fine was imposed on a tower owner in another case, where the FCC found three AM towers, two without fences at all, and one with fences in bad condition that allowed easy access to the tower. While the owner claimed that there was a local flood that damaged the fences, the FCC said that there was no evidence at the site of any recent flood, and even if a flood had damaged the one fence, it didn’t see how the fences around the other two towers would have entirely disappeared. The FCC also rejected arguments that the site was not accessible to the public as there was a steep cliff on one side of the towers, and water on the other. The FCC noted that, while these obstructions were on the sides of the towers, the FCC inspector had no trouble driving up to the towers from the front. Plus, even if there was a gate blocking that access (as claimed by the owner, but not found by the FCC inspector), the fact that the site could be accessed by boat made is sufficiently accessible that a fence should surround areas of high RF radiation.

Another $7000 fine was proposed for another AM licensee where the FCC found the fence around the transmission tower to have fallen in one section. Even though the licensee claimed that it had been damaged and temporarily repaired about 3 months before, as the temporary repairs had not lasted, the FCC did not excuse the violation. The FCC also rejected an argument that a larger perimeter fence obviated the need for the fence around the base of the tower. Had that outer fence secured the property, that might have been sufficient, but the FCC found the outer fence to have an unlocked, open gate, and at least one section of that fence had also had fallen, allowing easy access.

In a fourth decision, the FCC fined a tower owner $10,000 for having the top light out on its tower, and not promptly notifying the FAA of the light being out. The FCC rules require that the FAA be notified whenever lights are out for more than 30 minutes. Here, the FCC found the lights out in mid-August, notified the owner of the issue, which the owner repaired at the end of September. But, according to the decision, the FAA was not notified about the issue until after the repairs had been made.

Four decisions and almost $50,000 in fines. Tower issues are among the issues of most concern to the FCC, given the potential for personal injury and the threats to public safety. These issues are not new - we wrote about a number of similar decisions just a few months ago. Keep those tower sites fenced, lights lit, towers painted and identified, and their ownership properly registered or face big fines from the FCC.

$11,000 Fine for Broadcast Station Tower Light Outage - FCC Emphasizes the Responsibility of Licensee To Maintain Lights if Tower Owner Does Not

David Oxenford — Mon, 29 Apr 2013 10:19:27 -0500

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.

]]>As set forth in this decision, if the lights go out, the FAA must be notified of the outage, which was not done here. And attempts to fix the problem must be made. Here, while there was the dispute over the ownership of the tower, the FCC found that the licensee made no attempts to fix the issue or notify the FAA or the FCC, even though it appeared to have control over the tower – whether or not it actually owned it.

Clearly, licensees need to take note. If the required lights are out on their towers, and the owner of the tower refuses to take the required actions, the licensee must step in and do what it needed to be in compliance or, on top of any other liability that may attach, the FCC is liable to take action. Section 17.6 of the FCC's rules requires that the licensee notify the tower owner if the licensee believes that painting or lighting requirements are not being met. If such a step does not result in a resolution of the problem, the licensee must notify the FCC and take such steps as it can to get the tower into complaince. Such an eventuality should also be taken into account in any tower lease agreement, requiring that the owner do what is necessary, but noting that the licensee can act (and perhaps set off costs against its lease obligations) if the owner does not do what it required. Something to think about if you are operating a broadcast station from a tower that you do not own.

Monitor Required Tower Lighting - FCC Proposes $17,000 Fine for Violations

David Oxenford — Thu, 05 Apr 2012 14:28:46 -0500

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.

A Host of FCC Fines of Over $20,000 for Technical and Tower Issues - And a Presentation on How to Avoid FCC Problems to the Kansas Broadcasters

David Oxenford — Fri, 04 Nov 2011 10:01:32 -0500

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.

]]>In another case, a tower owner was fined $3750 for failing to have operating lights on a tower, and failing to notify the FAA that the lights were not working. The fine was imposed even though the tower no longer had any communications antennas mounted on it, the tower was scheduled for demolition, and the owners were elderly and in poor health. The FCC reminded tower owners that they must observe all lighting requirements even if no licensees were using the tower for as long as the tower is standing. A $10,000 fine was proposed in another case for a North Carolina station that did not have operating tower lights, and did not have a system in place to monitor the lights. In both cases, the FAA was apparently not notified immediately upon the tower lights failing.

These tower owners were not the only tower owners to get into trouble. The Commission issued a Notice of Apparent Liability for $20,000 to another tower owner in Atlantic City NJ who had a tower that had faded paint, lights that were not operational, and an open gate in the fence surrounding the base of the tower. The FCC inspected the tower several times, notified the owner of the issues, and was promised that the lights would be fixed by a given date. But, upon revisiting the site well after the promised date, the lights were still out and the paint was still faded. Thus, the fine was upped from the $17,000 that would be suggested by the FCC's schedule of routine amounts for fines, to the announced amount of $20,000. Obviously, if you make a promise to the FCC that you are going to fix a problem, keep it.

But keeping track of who owns a tower is also important, as a $3000 fine was proposed for a tower owner in California. The FCC visited the tower, and contacted the owner listed in the FCC tower registration records (when registering, tower owners are given an Antenna Structure Registration of ASR number). That owner told the Commission that the tower had been sold years before - with the Buyer apparently never bothering to update the tower registration at the FCC. As we have warned before, the FCC tower registration is not automatically updated when the sale of a broadcast station is approved by the FCC. A buyer must proactively go to the FCC and file a separate form to change the owner in the FCC tower registration database. If you don't update the tower registration, and a problem arises at your site where the FCC needs to find the tower owner, you may be looking at a fine.

While operating your tower in compliance with the rules is important, so is operating at the right power. Fines for overpower operations, especially on AM stations that have to switch power levels or directional patterns at sundown, seem common, including fines of $4000 in cases reported here and here. Especially at this time of year, on Friday nights with high school football games going on after dark, and sundown coming earlier and earlier, stations may be inclined to cheat. But if you get caught, you are looking at fines - and you have built in enforcers in competing stations who don't want you to get the competitive advantage of an overpower operation.

Moving a station without approval can also be costly - as shown by the case here. The Commission is proposing a $22,000 fine for a station operating from a site not authorized in its license (even small moves require FCC approval), and not having an operating EAS system or a complete public file.

This host of fines demonstrates that the FCC is very serious about the technical operations of broadcast stations. Seemingly little issues can result in big fines - so pay attention to details and save yourself a few dollars.

How Much Will Tower Lighting and Painting Issues Cost You in FCC Fines? $10,000 According to Recent Case

David Oxenford — Mon, 14 Feb 2011 14:02:37 -0500

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.

FCC Fines for No EAS Equipment, Unreported Tower Light Outage, and No Posting of ASR

David Silverman — Fri, 16 Apr 2010 11:40:42 -0500

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.

]]>Similarly, if tower lighting is required, FCC rules require that any outage be reported "immediately" to the FAA if it cannot be fixed within 30 minutes. Red obstruction lighting is required to be operational from sunset to sunrise, while high and medium intensity obstruction lighting is required to be operational 24 hours a day.

These are important issues to which both broadcasters and cable operators need to stay alert to avoid big fines like those imposed here. As they potentially involve matters of public safety, the FCC is not likely to be forgiving in the event of violations.

Tower Lights Out for Even One Day? - Pay A Fine, Says the FCC

David Oxenford — Wed, 20 Jan 2010 22:46:57 -0500

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.

]]>In addition, the original complaint indicated that the complainant could not reach the owner listed on the tower registration to notify them of the outage. After the FCC inspection, it became clear that this was because the ownership had changed, and the FCC had not been notified. Had the FCC tower registration information been timely updated when the ownership change occurred, the fine for the unreported change in ownership would not have been issued, and the fine for the light outage might also have been avoided if the owner had been able to respond to the private party's notification instead of having to wait for the FCC to get involved.

As we have written before, the FCC takes tower issues very seriously, because of the potential threat to safety posed by improperly lit towers. Tower owners need to take this issue very seriously themselves, not only because of the threat of FCC fines, but because of the potential exposure to civil liability should there be an aeronautical accident when the lights are out. If there are lighting problems, they need to be fixed immediately. If they cannot, the FAA needs to be notified so that it can alert airmen to the potential hazard. So inspect those towers regularly, and make sure that issues are promptly reported and corrected when they arise.