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