marking and lighting of towers

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

My law firm has long provided legal advice to companies that operate communications towers, and the lawyers involved in that practice area have alerted me to the following development which will require the marking and lighting of many towers not currently covered by such rules.

Broadcasters and tower companies have long relied on FAA rules that generally don’t require the lighting of towers under 200 feet in height except when these shorter towers may interfere with the flight path of an airport. So the vast majority of these short towers used by broadcasters (sometimes simply for mounting auxiliary antennas) and by other wireless users have not been lit. That apparently will change under the FAA Extension, Safety, and Security Act of 2016, passed by Congress earlier this summer and signed into law on July 15. Under provisions of this act, the FAA is required to adopt rules to require the marking and lighting of freestanding structures with heights of between 50 and 200 feet which are located in rural, undeveloped areas. The act refers to towers that will need to be marked and lit as “covered towers.” The new marking and lighting requirements will apply not just to new towers, but also to existing towers (after a one-year phase in period after the FAA’s new rules become effective).

So what is a “covered tower”? Essentially, the Act sets out the following definitions:

  • Size.  The Act defines “covered towers” as self-standing or guy wire-supported structures:
    • 10 feet or less in diameter;
    • More than 50 and less than 200 feet tall; and
    • With “accessory facilities” mounted with antennas, sensors, cameras, meteorological instruments, or other equipment.
  • Location.
    • To be a “covered tower,” the structure must be located:  (i) outside the boundaries of an incorporated city or town; (ii) on undeveloped land; or (iii) on land used for agricultural purposes.
    • “Undeveloped land” means “a defined geographic area where the [FAA] Administrator determines low-flying aircraft are operated on a routine basis.”
  • Exceptions.  The following are not “covered towers”:
    • Structurers adjacent to a house, barn, electric utility station, or other building;
    • Structures within the curtilage of a farmstead (for those not familiar with land-use terminology, a “curtilage” is the developed area of a farm immediately surrounding a house or other dwelling where residents have an expectation of privacy – it does not include surrounding fields) ;
    • Structures that support electric utility transmission or distribution lines;
    • Wind-powered electrical generators with rotor blade radius exceeding 6 feet; or
    • Street lights erected by government entities.

The new law was apparently adopted at the urging of rural flying groups, including those involved in crop dusting, members of which apparently have high rates of accidents. That is why there is the emphasis on rural towers – and the exclusions for those in developed areas where such planes are unlikely to be flying.
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