Tower Rule Compliance: Whose Responsibility Is It?

Owners are primarily in charge, but that doesn’t mean tenants are off the hook.
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The author is an attorney with Womble Bond Dickinson (US) LLP. She represents telecommunications and broadband carriers across the United States.

Marking, lighting and maintenance responsibilities for multi-user communications towers can be confusing. Let’s try to sort things out by looking at what the FCC’s rules say.

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The question of compliance responsibility is often a grey area. Part 17 of the Federal Communications Commission’s rules governs the construction, marking and lighting of “antenna structures,” which we generally refer to as “towers.”

Violations of FCC tower rules by owners and licensees can and will result in FCC penalties and fines. Although the tower owner is primarily responsible for compliance with the FCC’s tower rules, FCC licensee-tenants can also have significant responsibilities.

TOWER OWNER RESPONSIBILITY

Initial Construction: FAA No Hazard Determination, Antenna Structure Registration and Environmental Compliance Responsibility

In the initial construction of any tower, it is the tower owner who has the primary responsibilities for FCC tower siting rule compliance. These primary responsibilities include compliance with environmental rules and determining whether a new or modified tower requires a determination from the Federal Aviation Administration. If an FAA determination is required, then the tower owner must also register the tower on the FCC’s Antenna Structure Registration system.

The registration of a new tower on the FCC’s ASR system requires compliance with the FCC’s environmental rules to ensure that the environmental effects of proposed towers, including their effects on migratory birds, are fully considered prior to construction. Such compliance requires environmental notification under the ASR rules and under the environmental rules for environmental consequences.

Under the environmental rules, there are eight environmentally sensitive categories of construction:

  1. on wilderness areas;
  2. on wildlife preserves;
  3. near threatened or endangered species or critical habitats;
  4. near properties listed on, or eligible for listing on the National Register of Historic Places;
  5. on Indian religious sites;
  6. in flood plains;
  7. on wetland fill, deforestation or water diversion surface features; and
  8. with high-intensity white lights in residential neighborhoods.

If a proposed tower construction falls within any one of these categories, the preparation of a formal environmental assessment is required before an FCC ASR will be granted.

Upon the grant of an FCC ASR, a tower owner may proceed with tower construction. It is the tower owner’s responsibility to notify the FCC, and where required, the FAA, of construction completion within five days. Likewise, a tower owner must also notify the FCC of the dismantlement of a tower.

Once constructed, any change or correction of a registered tower in the overall height of one foot or greater, or of geographic coordinates of one second or greater in longitude or latitude, requires a revised determination from the FAA and the filing of an application for modification of the existing ASR with the FCC.

The tower owner is also responsible for posting the ASR number at the tower site and providing a copy of the ASR to each tenant on the tower.

Additionally, the tower owner must notify the FCC of any change in ownership within five days.

Constructed Towers: Tower Painting and Lighting Responsibility

The primary responsibility for tower painting and lighting falls on the tower owner. Tower owners are responsible for observing the tower’s lights every 24 hours, either visually or by observing an automatic indicator designed to register any failure of such lights, to ensure that all such lights are functioning properly as required.

Alternatively, to detect any failure of tower lights, the tower owner must provide and maintain an automatic alarm system, and inspect the system every three months to ensure proper operation. The tower owner must also maintain the tower and clean and repaint the tower as often as necessary to maintain visibility as required by the FCC and FAA rules.

Any observed or known improper functioning of a top steady burning light or any flashing obstruction light on the tower, if not corrected within 30 minutes, must be reported immediately to the FAA. A further notification to the FAA must be given immediately upon resumption of normal operations.

The tower owner must keep a record for two years of any observed extinguishment or improper functioning of a tower’s lights including:

  1. the nature of the extinguishment or improper functioning;
  2. date and time;
  3. date and time of FAA notification; and
  4. the date and time of repairs or replacements made.

LICENSEE-TENANT RESPONSIBILITY

Pre-Collocation Responsibility

For FCC-licensed communications facilities locating on an existing tower, the FCC’s environmental rules apply to all FCC actions, including the granting of any FCC license or permit.

Even where no specific FCC authorization is required for a specific facility, a person or entity that is otherwise an FCC licensee is required to ascertain whether the collocation of an antenna on a tower may have a significant environmental effect under the FCC’s Nationwide Programmatic Agreement for Collocations.

Prior to locating an antenna on an existing tower, an FCC licensee must ensure that its collocation is permissible. To do so, the licensee should ensure that the tower went through the proper environmental review prior to construction by obtaining a certification from the tower owner that it complied with, and remains in compliance with, the FCC’s tower siting and environmental rules.

Painting and Lighting Responsibility

While a tower owner is primarily responsible for maintaining the painting and lighting of a tower, if an FCC-licensee-tenant on a tower is aware that the structure is not being maintained in accordance with the FCC’s rules and underlying ASR, or otherwise has reason to question whether the tower owner is carrying out its responsibilities, the licensee tenant must take immediate steps to ensure that the tower is brought into and remains in compliance.

Specifically, if there are FCC or FAA tower maintenance violations, an FCC licensee-tenant must:

  1. immediately notify the tower owner;
  2. immediately notify the site management company (if applicable);
  3. immediately notify the FCC; and
  4. make a diligent effort to immediately bring the structure into compliance 

If a tower owner does not comply with the FCC’s rules, the FCC could require each FCC licensee authorized on a tower to maintain the structure in accordance with the ASR and FCC rules for an indefinite time period.

Radio Frequency Radiation Levels Responsibility

The responsibility for maintaining safe radio frequency radiation levels on any tower falls squarely on its FCC licensee-tenants. The RFR limits apply to all FCC licensees.

In instances where RFR limits are exceeded due to the emissions from multiple fixed transmitters, the responsibility for bringing the site into compliance is the shared responsibility of all licensee tenants. Tower owners are expected to allow licensees to take reasonable steps to comply with the FCC’s RFR requirements.

SPECIAL RESPONSIBILITIES REGARDING AM BROADCAST STATIONS

AM Broadcast Fencing Responsibility

A specific responsibility is placed upon AM broadcast licensee-tenants. AM broadcasters are solely responsible under the FCC’s rules for compliance with AM fencing rules. AM towers must be enclosed within an effective locked fence or other enclosure.

The FCC has clearly stated that the fencing responsibility does not shift to the tower owner where the licensee and the tower owner are different entities. In situations where required fencing is not completed before a tower is leased, the AM licensee-tenant must complete the process before locating its broadcast facility on the tower.

AM Detuning Responsibility

AM broadcast stations are required under the FCC’s rules to be protected from nearby tower construction and antenna installations that may distort an AM broadcast station antenna pattern. Anyone holding or applying for an FCC authorization proposing to construct or make a significant modification to a tower in the immediate vicinity of an AM antenna, or proposing to install an antenna on an AM tower, is responsible for completing an analysis and providing notice to the AM licensee, and for taking any measures necessary to correct resulting disturbances of the AM radiation pattern.

Tower and structure owners that do not hold FCC licenses are not directly responsible for complying with this AM detuning rule. But, FCC applicants and licensees cannot locate an antenna on a tower that required an analysis and notice, or is causing a disturbance to the radiation pattern of an AM station, unless the applicant, licensee, or tower owner takes appropriate steps to complete the required analysis and notice or correct the disturbance.

Where a tower owner does not complete a required AM detuning analysis or provide notice, the licensee-tenant becomes the responsible party. The FCC will prohibit a licensee from locating on a tower within certain distances of an AM station, unless and until the required analysis and notice process is completed.

CONCLUSION

Both tower owners and FCC licensee-tenants have significant responsibilities with regard to tower rule compliance. While the tower owner is primarily responsible for compliance with the FCC’s tower siting, maintenance and environmental rules, licensee-tenants have responsibilities with regard to locating an antenna on a tower, and can almost always be held secondarily responsible if a tower owner fails to comply.