CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

But the FAA’s interest in preventing EMI has historically led to considerable tension with the FCC and many broadcasters (as well as other spectrum users). It’s one thing for the FAA to regulate the height of towers and other structures that might get in the way of aircraft landing and taking off. It’s another for the FAA to assert that it can or should dictate the geographical areas in which certain radio frequencies may be operated. After all, didn’t Congress confer control of the spectrum on the FCC, not the FAA?

Hold on there, counters the FAA, Congress gave us broad authority to promote safe air travel. And if EMI is a threat to air safety, then the FAA has some regulatory role in controlling spectrum use so as to reduce, if not eliminate, that threat. Relying on that position, the FAA famously put a hold on boatloads of FM applications a couple of decades ago. (Because of their proximity to FAA navigation signaling systems, the FAA is most concerned with FM frequencies.) The FAA’s primary MO for this was to withhold Determinations of No Hazard for new tower structures that would support new or modified FM stations which, in the FAA’s view, might cause a problem to air navigation systems – regardless of whether the FCC was satisfied that the proposed operations would protect other spectrum users adequately.

That inter-agency stand-off was ultimately de-fused through compromise between the two, and life has gone on smoothly since.  Then in 2006, the FAA was at it again.

To guard against EMI problems, the FAA wanted to require, as part of its Determination of No Hazard process, notice of most any change to any station operating on a wide range of frequencies. New or modified structures that would hold RF generators using those frequencies, changes in channels, power increases of 3 dB or more, antenna modifications, etc., etc. – everything would have to go through the FAA first for its blessing. And without that blessing (in the form of a Determination of No Hazard), the change would not be permitted.

The potential for bureaucratic delays was huge, as was the potential for inter-agency confusion and inconsistency.

The good news is that, in its decision last month, the FAA largely backed off that proposal. It withdrew the proposal for required pre-construction notice for all frequencies other than the FM band (88.0-107.9 MHz). And with respect to FM, the FAA took a notably conciliatory tone:

The FAA, FCC and NTIA are collaborating on the best way to address this issue. A resolution of this issue is expected soon. Therefore, the proposals on FM broadcast service transmissions in the 88.0–107.9 MHz frequency band remain pending. The FAA will address the comments filed in this docket about the proposed frequency notice requirements and proposed EMI obstruction standards when a formal and collaborative decision is announced.

While this does not completely eliminate the threat of increased FAA intrusion into RF matters, it certainly allays immediate concerns. Further, the cooperative manner in which the last major FAA-FCC turf tiff (involving FM proposals) was ultimately resolved provides reason to believe that this will end the same way. But the FAA’s order also serves to remind one and all that the FAA’s interest in having a say about FM operations is still alive and kicking, as is the FAA’s apparent belief that its statutory authority gives it some say in that regard. Interested folks – particularly FM operators and tower builders – should continue to keep an eye on the FAA’s regulatory activities, just in case.

One observation about the changes which the FAA did adopt. Under the new rules (which take effect January 18, 2011), Determinations of No Hazard will be effective 40 days after the date on which they are issued. Previously, a Determination’s effective date was reflected on the face of the Determination itself, and normally corresponded with the date of issuance. Thus, the new rules impose a 40-day lag time between issuance and effectiveness. While this change may prove inconsequential to many, if not most, folks, it would still be good to be aware of it on the off-chance that the differential between issuance and effectiveness were to come into play at some point.

Several tower lighting monitoring systems, including the Eagle Monitoring System by Flash Technology and the TowerSentry Monitoring System, as well as the Hark system (as we reported  in an earlier post) have been deemed by the Commission to offer “sufficiently robust monitoring of the control devices, indicators and alarm systems so as to render quarterly inspections unnecessary.”  In light of this, the WTB has adopted an expedited process whereby a tower owner using one of these systems may seek a waiver of the quarterly inspection requirement by certifying:

1.      that its towers are monitored by one of the approved montioring systems (i.e., Hark, Eagle, or TowerSentry), under the process described in the Commission's 2007 ATC/GSI Waiver Order; AND

2.      that it maintains a means to receive notifications of failures from the monitoring system so that the tower owner may readily carry out its duties under Part 17 of the Rules.

The certification must be made under penalty of perjury by a company officer (or person of similar responsibility) with actual knowledge of these facts. This certification and waiver request must be submitted in hard copy to the FCC as usual (no CDBS or ULS e-filing alternative is currently available), but should also be emailed for quicker processing to part17@fcc.gov.

We note that this waiver process does not offer complete inspection requirement relief – towers must still be inspected annually.

The continuously operating radar device is attached on or near the tower (or whatever other air traffic obstacle you want to warn planes away from) and constantly monitors a series of pre-established “warning zones”. If an aircraft enters the first warning zone, the system turns on the tower lights to provide a visual warning to the pilot. If, despite the lights, the apparently errant aircraft advances toward the tower and enters the second warning zone, the VHF radio transmits an audio warning on all aviation transceiver channels alerting the flight crew to take immediate action to avoid a collision. Because of the very modest signal strength of the transmissions – the signal would need extend over only the second warning zone, a relatively modest area – it is very unlikely that any aircraft outside of the danger zone would receive any false alarms.

This system – on paper, at least – screams “user-friendly”. From the operational standpoint, the software governing each individual OCAS® unit can be adjusted to account for unusual terrain at a particular site. Plus, because the tower lights are activated only when an aircraft flies uncomfortably near the tower, use of OCAS® would both save on power costs and extend the life of tower light bulbs. As an added bonus, OCAS could take charge of the required tower monitoring chore and send daily status reports to the tower owner. 

And Mother Nature should be pleased as well:  the fact that the towers no longer would be constantly illuminated should decrease the incidence of fatal bird/tower collisions, since such collisions have been blamed on the disorienting effects on birds of constantly-lit towers.

Overall, with the exploding demand for tall structures – e.g., communications towers, obviously, but also power-generating wind turbines – the OCAS system may be an idea whose time has come. Check back here for updates – we’ll let you know if and when the FCC requests comments on this petition.

Those proposals were set out in a “Petition for Expedited Ruling and Other Relief” filed by a number of prominent national organizations – the American Bird Conservancy, Defenders of Wildlife, the National Audubon Society – which have been flapping their wings at the FCC for years. They argue that communications towers are responsible for millions of bird deaths each year, and that that constitutes an environmental impact triggering the National Environmental Policy Act (NEPA) and the ESA.

The FCC, which already has a lot on its plate what with spectrum management and all, has historically been less than enthusiastic about taking on the additional responsibility for full-tilt environmental protection as well. But the birders have been insistent, and last year they managed to convince the federal appeals court in D.C. that the FCC should be required to “provide notice of pending tower applications that will ensure meaningful public involvement in implementing NEPA procedures.” The Commission hasn’t done much to follow up on that little chore – and, as a result, the birders have swooped in again to keep the pressure up.

In their latest petition the birders repeat the assertion which they have made previously – that communications towers account for as many as 50,000,000 bird kills each year. That’s a lot of birds, for sure – but, as it turns out, the 50,000,000 figure is only an estimate, and a high side estimate at that. (Compare it to other estimates of avian adversaries advanced by the bird lobby: “vehicular strikes” – 60,000,000-80,000,000; power line collisions – “hundreds of millions”; and seemingly the biggest killer of all, building windows – 97,000,000-980,000,000.)

(With respect to the raw 50,000,000 number, our colleague Ron Whitworth observed as follows in our March, 2007, Memo to Clients: “Presumably most birds that suffer fatal collisions with towers can be expected to die in relatively close proximity to the tower they whack. If that’s correct, then their remains should be easy to find by anyone walking in the vicinity of the tower. That is, unlike elephants and their mythic elephant burial grounds (i.e., secret places where elephants supposedly toddle off to die – as reliably depicted in the 1934 classic, Tarzan and his Mate), dead birds should be readily findable. And when you’re talking about 50,000,000 birds per year, it just can’t be that hard to document at least some of them. Do the math. Let’s say that there are about 100,000 registered towers out there. (Actually, there are about 92,000, but we’ll be generous.) That means that, on average, every year each tower supposedly kills 500 birds. So on average, each and every tower owner should be finding about 10 dead birds around each and every tower every week, all year long.”)

In any event, whatever the actual level of risk may be, the push for increased FCC sensitivity to the impact of towers on birds (and vice versa) is obviously not going away. The Commission has invited comment on the birders’ latest petition. Comments are due May 29; replies are due June 15. At this point it’s impossible to predict what’s likely to happen. But the birders have unquestionably enjoyed some success in the courts, and they don’t appear to be going away anytime soon. Their proposals, if fully adopted and implemented, could slow new tower construction to a crawl – so if you expect to be building a new tower subject to the FCC’s antenna registration process in the foreseeable future, you may want to get involved now.

The Division concluded that their site was neither an officially designated antenna farm nor a de facto antenna farm.

Let’s take a step back here. For openers, what exactly is an antenna farm? More than 40 years ago, the Commission added Section 17.9, entitled “Designated Antenna Farm Areas”, to its rules. That section currently reads, in its entirety (including the bracketed language quoted below, which is exactly as it appears in the rule), as follows:

The areas described in the following paragraphs of this section are established as antenna farm areas [appropriate paragraphs will be added as necessary].

As it turns out, the Commission has never actually designated any site as an official antenna farm. Nor, for that matter, has the Commission ever bothered to articulate exactly what factors it would consider if it ever got around to gracing any site with that designation. So the site that was recently touted, by the applicant, as an “antenna farm” had not been officially so designated, at least not by the FCC.

No problem. The categorical exclusion from environmental processing includes, in addition to officially designated antenna farms, “de facto” antenna farms. The environmental rule refers to antenna farms as areas “in which similar antenna towers are clustered, whether or not such area has been officially designated as an antenna farm.” Certainly a site featuring two existing towers would satisfy that definition.

Uh, no, not really, according to the Division.

The Audio Division acknowledged that no threshold requirements have been specified in determining what a de facto antenna farm is, but the Division was nevertheless able to determine that the site in question was not a de facto antenna farm.

The site consisted of two towers, both located within about 1,000 feet of the proposed third tower. The applicant reasonably argued that the close proximity of two existing towers qualified the site as a de facto antenna farm.  But the Division thought this analysis was overly simple, even though the applicant had made considerable efforts to research every situation in which the Commission had addressed, directly or otherwise, sites that might be deemed “de facto antenna farms”.

The Division duly considered each of the cases cited by the applicant, noting the factors (over and above the number of towers and their relative proximity) that might be relevant to a site’s status as a de facto antenna farm. Among those factors, according to the Bureau:

• the size and purpose of the towers (although this seems to contradict the designated antenna farm implementation order where the FCC, way back in 1967, specifically addressed the inclusion of all communications towers and not merely broadcast towers; this factor came into play here because the two other, existing, towers are not used by broadcast stations);
• any agreement, by communities and licensees, to utilize one site for antenna siting (such as the Empire State building in New York or Mount Wilson in Los Angeles);
• whether there are a number of tall (over 1,000 feet) towers on the site;
• whether the FAA has approved additional tall towers in a given site;
• whether the proposed tower is similar to other existing towers at the proposed site.

Despite its lengthy discussion of these other situations, the Bureau stopped short of providing any useful guidance concerning what, exactly, a site has to have to be deemed an antenna farm. Instead, the Bureau told the applicant that, whatever an antenna farm might be, the applicant’s site didn’t fit the bill – not an especially helpful approach, either for the applicant or for anybody else who might find himself or herself in a similar situation in the future.

Exactly why the Commission has declined, for more than four decades, to provide some useful definition for a term which the Commission itself chose to stick in its own rules is a complete mystery. But it certainly seems clear from the Bureau’s recent decision that that failure is a conscious choice and not some mere inadvertent oversight.

In light of the Bureau’s decision, though, applicants would be wise not to assert that their proposals are exempt from environmental processing under the antenna farm exemption unless they have very conclusive evidence that their sites do, indeed, constitute antenna farms. But based on the Bureau’s obvious reluctance to give any sites that designation, formally or otherwise, we suspect that such conclusive evidence will be extremely hard to find.

With respect to the effect of the proposed construction on endangered or threatened species, the applicant is supposed to make a “meaningful evaluation of the effects of their proposals on listed and threatened species and habitats before filing the application.” The Division indicates that a statement from the Fish and Wildlife Service (FWS), or alternatively an opinion from a “qualified biologist using the most current data”, would usually do the trick.

With respect to the effect of the proposed construction on historic properties, the Commission’s rules, the NPA and other related authorities lay out a number of chores that need to be completed. Those include preparation and submission of a Form 620 (“New Tower Submission Packet”) to the relevant State Historic Preservation Office (SHPO) and/or Tribal Historic Preservation Office (THPO). And the preparation of the Form 620 in turn requires additional research concerning, among other things, the “area of potential effects” that would be adversely affected by the construction.

With respect to the effect of the proposed construction on matters of religious or cultural importance to any Native American tribes, the NPA specifies notice requirements, and the Commission has established a mechanism by which those requirements can be satisfied with relative ease.

Our Wyoming applicant appears to have ignored all of these requirements. After all, the folks at the BLM had not said diddly-squat about Indian religious sites. Moreover, since there were already two non-broadcast towers in the vicinity of the proposed site, the applicant figured any historical or religious sites that might ever have been located there had already been destroyed.

Once the Commission started asking questions about the applicant’s certification, though, the applicant got a lot more serious about the process. The applicant obtained a letter from the relevant SHPO confirming that no historic properties would be affected, a letter from the FWS confirming that there were no endangered species in the area, and a report from an environmental consultant demonstrating that appropriate contact had been made with Indian tribes. Enough documentation to convince the Division that the proposed construction would be consistent with the applicable NPA considerations.

Still, the Division was clearly unhappy about the fact that the applicant had certified without having any clue about the validity (or lack of validity) of its certification. Sternly shaking its bureaucratic finger at the applicant, the Division said that a monetary forfeiture would have been in order. But, oops, the statute of limitations had already tolled, leaving the Division powerless to impose such a forfeiture. So the applicant got its applications granted, and it didn’t get fined – but it did get a stern talking-to by the Division, and the grants of its applications (filed in mid-2007 and early 2008) were delayed. Perhaps that was punishment enough.

The take-home message of this case is simple: the Commission remains very serious about compliance with the NPA, and it stands ready to enforce the NPA. And now that the Division has had the chance to alert the industry through this recent decision, the next applicant who tries to get away with less-than-complete environmental compliance can likely expect to suffer a considerably harsher fate than the Wyoming applicant here. 

We at FHH can help guide CP applicants through the various steps to avoid such a harsher fate.

The petitioner was relying largely on claims by the antenna manufacturer that suggested that its specially-designed-and-mounted “lambda” design would effectively “directionalize” the station’s pattern.  The manufacturer in this case was ERI, a highly-experienced, highly-respected company. According to its website, the performance of most omni antennas is determined by “free space evaluation”, meaning that the evaluation is made as though the antenna were magically suspended in space, far away from any nearby structure (like, say, a supporting tower) that might otherwise distort the antenna’s pattern. But since, as a matter of physics, close proximity to a large metal object (like, say, a supporting tower) will invariably alter the antenna’s performance in various ways, the theoretical omni pattern will be subject to distortion as soon as it gets mounted in the real world. Accordingly, ERI devised the “lambda” system to take into account the distortive effects of the tower and mounting hardware (and other factors) and produce a more accurately predictable signal.

So yes, the “lambda” system “intentionally” affects an omni signal in some sense, but only for the purpose of counteracting the unintended distortion which naturally occurs when you bolt the antenna onto a tower. If the goal is to correct unintended-but-unavoidable natural distortion, can that really be said to be “intentional distortion”? That seems quite a stretch.

The Commission’s staff accepted the applicant’s (and ERI’s) explanation, which ideally will send the 1984 public notice back into the dusty books for good. After all, the mere mounting of an omni on a piece of hardware will cause some distortion – that’s just the way these things go. Does that mean that the staff should re-visit each and every omni that has been installed since 1984 to check on distortion levels? And so what if some intentional counter-distortion is engineered into the installation for the purpose of insuring that the signal goes where it’s predicted to go – does it make sense to penalize such efforts?

Still, at least one petitioner thought it was a good idea to conjure up the 1984 public notice. Perhaps it’s time for the Commission to dispatch that notice to the ever-after for good, so that it can’t haunt the FCC’s halls anymore. At a minimum, if the public notice is going to linger on, the FCC might want to provide broadcasters, equipment manufacturers and tower riggers some clear guidance as to just what the notice means, so that all concerned can avoid any unexpected surprises.

Historically the Commission has imposed some limits on construction of towers near AM stations, but those limits have been spread through various parts of the Commission’s rules and have imposed differing requirements on different types of communications entities (e.g., broadcasters, wireless providers). In the interest of updating and “harmoniz[ing]” these rules, the Commission is now proposing to adopt a new set of rules, to be included in Part 1 of the rules and, therefore, to be equally applicable to all tower construction. The new rules would apply to all communications towers above a specified height, not just towers subject to FAA or tower registration constraints. The Commission has also specifically asked for comment on whether the new rules should apply as well to structures which would not be used for communications purposes and the owners of which are not otherwise subject to FCC Regulation.

This proposed rulemaking could significantly complicate the process of building new towers (as well as new buildings of any sort). It also raises a serious question of how far FCC jurisdiction can be said to extend – after all, it appears that the Commission is contemplating the regulation of structures that do not involve communications at all. Anyone who expects to be involved in the construction of a large structure in the vicinity of an AM station at any point in the future should pay attention to this proceeding.