FCC tower lighting requirements

Earlier this week, the FCC’s Enforcement Bureau released an Order approving a consent decree with Scripps Broadcasting where Scripps agreed to pay a penalty of $1,130,000 for perceived violations of the FCC’s rules requiring tower light monitoring for towers used by a number of TV stations that it had recently purchased.  The company also agreed to adopt numerous procedures to insure continuing compliance, including notification to the FCC of future issues.  The FCC began the investigation when a plane crashed into one station’s tower.  While the FCC specifically states that it did not find any evidence that any of the “irregularities” in the tower monitoring process contributed to the plane crash, the crash opened the door to the FCC’s investigation of the company’s tower light monitoring process at all of its stations, leading to this fine.  Are you ready for such an investigation?

In the consent decree, the Commission cites various tower-related FCC rules that must be observed by tower owners.  The rules include Section 17.47(a), which requires antenna structure owners to monitor the status of a structure’s lighting system by either (1) making “an observation of the antenna structure’s lights at least once each 24 hours either visually or by observing an automatic properly maintained indicator designed to register any failure of such lights” or (2) by “provid[ing] and properly maintain[ing] an automatic alarm system designed to detect any failure of such lights and to provide indication of such failure to the owner.”  That rule also requires that the tower owner inspect any automatic monitoring system at least once every 3 months to make sure that it is working correctly, unless the owner is using a system certified as reliable and not requiring such inspection by the Wireless Bureau of the FCC (see our articles here and here where FCC fines were issued when monitoring systems did not alert the tower owner of tower lighting issues). 
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Last year, we wrote about legislation adopted by Congress telling the FAA to adopt rules to require the lighting of towers less than 200 feet tall located in rural areas.  That legislation was designed to protect aircraft used for agricultural purposes like crop-dusting from collisions with such towers.  The law surprised most of the

There are times that the FCC, though its Daily Releases, appears to be trying to make a point.  And Friday was one of those days, when it simultaneously released four separate orders, each fining the owner of a tower used for communications purposes for failures to maintain the required tower lights on those towers.  Three of the fines were for $8000, and one for $6000, and three were against broadcasters and one was against a non-broadcast licensee.  The facts of each of the cases are slightly different – but together they make clear that the FCC demands that tower lights be maintained in operating condition, and will take few excuses for the failure of those lights to remain operational during required operating hours.

Two of the cases are particularly instructive as to the strict liability of the tower owner.  In one case, the owner of the tower argued that it should not be fined, as it maintained a system to monitor tower lights, a system that had just been inspected and found to be in operating condition a few days before the FCC inspection which discovered that a light was out on the tower.  Such monitoring systems are permitted by the rules as a substitute for daily visual monitoring of a tower’s lights.  However, the FCC found that the station was not being fined for the failure to monitor the tower lights (as that obligation was met through the automatic monitoring system), but instead for the failure of the lights to be lit –a strict liability standard seems to be used to justify the fine.
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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.


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