. . . but FM applications remain an area of particular FAA concern

Four years ago the Federal Aviation Administration (FAA) proposed to dramatically expand its influence over radio spectrum users. (For a summary of the proposals, see the related article from our July, 2006 Memo to Clients.) Fortunately, in a decision released last month, the FAA lowered its conceit of attainable felicity a bunch, giving up on wide swaths of its 2006 proposal. And while the FAA is still holding fast to the notion that it should have a say in the location of FM transmitters, it has now expressly committed to collaborating with the FCC and NTIA in that mission. The end result for FM licensees and applicants, though, has yet to be determined.

For decades the FAA has expressed concern about possible adverse effects of electromagnetic interference (EMI) on aviation safety. It’s hard to argue with the FAA on this. Modern aviation systems – both on-board aircraft and on the ground, particularly in the vicinity of airports – use radio spectrum for a variety of important purposes, including communications and navigation. As a matter of public policy, it’s a good idea to prevent interference that could impair the ability of pilots and flight controllers from doing their jobs, i.e., from getting planes (and their passengers) to and from their various destinations safely.

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.