FCC looks to overhaul antenna structure strictures.
You know how people have been telling you for, like, years that you really ought to clean out your refrigerator? And when you finally get around to it, you find (among other things) that those fuzzy things that look like a science experiment sprouting behind the old jar of maraschino cherries at the back of the top shelf have sell-by dates that went by several years ago?
That’s what the FCC is experiencing right now – but instead of its refrigerator, what needs cleaning up are the rules governing antenna structure construction, lighting, marking and maintenance.
And so the Commission has released a Notice of Proposed Rulemaking (NPRM) looking to overhaul its tower-related rules, which comprise Part 17 of the rules. While the Commission specifies a number of particular changes it has in mind (see below for examples), the proceeding appears to encompass the entire regulatory scheme of Part 17. Anyone who has an antenna structure or expects to build one may want to take the opportunity to offer their suggestions, since history suggests that, once the structure rules are revised, they’re likely to stay that way for a while.
The FCC, of course, has long required all of its regulatees to comply with various non-RF related aspects of their antenna structures. (Insider tip: While you may want to refer to them as “towers”, don’t; the government prefers the more elegant term “antenna structures”.) And it routinely issues forfeitures for non-compliance with, e.g., lighting and painting specifications. The goal is to keep aviators and aviation passengers from flying into those structures.
But because the focus here is on aviation, the FCC shares antenna structure responsibilities with the Federal Aviation Administration (FAA). Historically, the FAA has set most of the substantive standards (for, e.g., lighting and painting), even though the FCC has the responsibility for enforcing those standards. But the two agencies apparently don’t coordinate as well as they might – and, as a result, discrepancies between the FAA’s requirements and their FCC equivalents can develop.
For example, the FCC rule section on painting/lighting specifications currently requires conformance with an FAA circular that was superseded, by the FAA, more than six years ago. (This problem had been called to the FCC’s attention back in 2006.) The FCC proposes to fix the problem now by (a) deleting references to any circulars, and (b) requiring instead that structure owners comply with whatever determination the FAA issues with respect to their particular structures.
Along the same lines, Sections 17.14 and 17.17 of the Commission’s rules – which specify (a) which structures are subject to notification to the FAA and (b) which are exempt – merely parrot the FAA’s rules. The FCC correctly observes that this approach “risks creating confusion in the event the FAA were to change its criteria”. So now the FCC proposes simply to cross-reference, in its own rules, the corresponding FAA rule.
Curiously, discrepancies within the FCC’s own rules have developed as well. Sections 17.2 and 1.907 both purport to define “antenna structure”, but they use slightly different language. The Commission asks whether the two should be “harmonized”. (Our suggested answer: “yes”.) And the FCC’s definition of “antenna structure owner” – i.e., the guy who bears ultimate responsibility for compliance with lighting/marking/etc. requirements – could be read to include not only the structure’s owner, but also the owners of any antennas that happen to be located on the structure. Since that reading would be inconsistent with longstanding Commission precedent, the FCC suggests that the definition should be clarified some.
Similarly, FCC rules currently require that each structure’s Antenna Structure Registration number be displayed “in a conspicuous place so that it is readily visible near the base” of the structure. But elsewhere the Commission has suggested that the number be displayed “along a perimeter fence” or “at the point of entry of the gate” – in both cases, places not necessarily “near the base” by any means. Since the purpose of the display is to provide the public information, the latter approach seems to make more sense than the one in the rules. The FCC proposes to resolve this by requiring the display to be visible from “the closest publicly accessible location[s]” near the base.
And if you’re looking for internal discrepancies, look no farther than Section 17.58, which requires compliance with Section 1.70 of the FCC’s rules. But check this out – Section 1.70 was deleted from the FCC’s rules in 1977! Not surprisingly (but without a hint of obvious embarrassment), the Commission now proposes to delete Section 17.58.
The Commission also proposes to streamline requirements regarding inspection and maintenance of marking and lighting by, e.g., eliminating the separate inspection component entirely while retaining the obligation to assure proper lighting at all times. Timely notification of outages would still have to be made to the FAA. As an alternative, if inspection requirements are retained, the FCC may consider exempting certain network operations control center-based monitoring systems.
Another proposal: defining what alterations to a structure would require a new FAA study. The Commission’s rules currently contain no such definition, even though the FCC has, since 1995, applied the informal standard that any change in height of one foot or more, or any change in location of one second or more, would trigger a new FAA study. The Commission now proposes to codify that standard.
And another: structure owners would have to keep records of observed or known lighting outages/improper functioning for two years.
Despite the Commission’s historical inclination to let the FAA call the shots vis-à-vis the substantive standards for antenna structure lighting/marking, a number of the NPRM’s proposals suggest a curious independence of spirit on the FCC’s part.
For example, to determine the coordinates of a structure, the FCC suggests that it might insist on specific accuracy standards or survey methods. But the FAA has declined to impose such a requirement, and conflicts with the FAA’s process could arise if the FCC insists on specific standards/methods that yield results at odds with the FAA’s approach.
Along the same lines, the FAA requires structure owners to notify it of the structure’s construction or dismantlement within five days. The FCC, by contrast, provides only 24 hours for such notice and, without explanation, the Commission proposes to stick by that limit.
Since the NPRM is intended to “update and modernize” all of Part 17, there are more specific proposals, as well as broad invitations for comments and suggestions. This presents an excellent opportunity for anyone with an antenna structure to weigh in.
But one of the more intriguing aspects of the FAA/FCC relationship may be out of the FCC’s hands for now. The FAA has on occasion asserted authority over not only the physical nature of antenna structures, but also their RF characteristics as well. (The FAA’s approach is understandable in view of the fact that the FCC defines “antenna structure” to include not only the physical structure, but also any radiating and/or receive systems and related gear.) In particular, at times the FAA has withheld “no hazard” determinations based on the particular frequencies to be transmitted from the structure – for example, where operation of a proposed FM station would interfere with navigation frequencies used at a nearby airport. Since 2006 the FAA has been considering its own NPRM which would expand its own notification requirement to include a range of frequency-specific limits. In its NPRM the FCC now inquires whether the FCC’s rules or policies should be altered in the event the FAA adopts the proposals pending in its 2006 NPRM. It is not at all clear whether the Commission sees a possible inter-agency impasse here and, if so, what the prospects for resolution might be.
While we may welcome the opportunity to chip in our respective two cents’ worth to the FCC, all concerned might be better off if the Commission and the FAA were to commit themselves to ironing out, once and for all, all aspects of their shared responsibilities. Unilateral action by either agency creates the possibility of conflict with the other, with resulting confusion for the regulated masses. Of course, the FCC and FAA have been unable to resolve their relationship to date – as is evident throughout the FCC’s NPRM – so it may be idle to suggest that they should do so now. But there’s no harm in asking.
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