Nearly a decade in the making, FCC tower rules brought into the 21st Century

If you’ve got one or more tower structures, you may be in luck. The FCC has at long last taken a weed-whacker to Part 17 of its rules, a long-overgrown regulatory briar patch governing the construction, painting and lighting of antenna structures. While the substantive requirements remain largely intact, a number of procedural changes should make life at least a little easier for tower owners as well as the Commission’s Staff. At a minimum, the changes should make the rules easier for real people to grasp.

The only real question here: What took so long?

Tower Inspections. The current rules require that tower lights be monitored at least once every 24 hours, either by observation of the tower itself or through an alarm system that takes care of the process automatically. In addition, any automatic or mechanical control devices, indicators, and alarm systems associated with a tower-lighting system must be inspected quarterly to confirm that the gear is working properly. Some major tower owners have set up Network Operations Centers (NOCs) which are staffed at all times, have highly sophisticated equipment that sounds an alarm at any tower lighting malfunction, and stores records of all alerts. An alert is sent not only if the lights fail at a tower but also if the monitoring system fails. Historically, the FCC has granted several waivers of the quarterly inspection requirement to companies that have demonstrated that their NOCs are adequately staffed and equipped.

Under the new rules, maintenance of an NOC will excuse a tower owner from quarterly inspections as long as the owner can certify (with appropriate documentation) that: its monitoring system has previously been approved by the FCC; the tower structures are in fact monitored as specified in the FCC’s approval; and its gear is set up to receive notifications of any failure of the monitoring system. (If you’ve got a system that has not yet been approved by the Commission, you can still ask the Wireless Communications Bureau to bless it. The existing standards for such systems will apply.)

Note that the use of NOC monitoring is optional, not mandatory. A data field will be added to the FCC’s online Antenna Structure Registration (ASR) system to allow registrants to report that they have chosen to monitor their tower lights through an approved NOC system. Those of you who do not use a NOC-based system will still be subject to the quarterly inspection requirement.

Changes in Tower Height/Location. The FCC has amended its rules to require modification of a tower’s FCC Antenna Structure Registration (ASR) for any change or correction of one foot or more in tower height or one second in latitude or longitude. This conforms to the FAA-imposed triggers requiring the filing of a new notice and obtaining a new Determination of No Hazard. Practically speaking, you’ll need to get the FAA’s No-Hazard Determination first, as that will have to be submitted with the FCC Form 854 to update your previous ASR.

The text of the Commission’s Report and Order says that prior FCC “approval” for such modifications is now required for this kind of change. The newly-adopted rules, however, require only that FAA approval be obtained and the existing FCC ASR be modified. Such modification may generally be secured online automatically – that is, conventional notions of “prior approval” may not really be involved, at least on the FCC side of things, although you do get “approval” in the sense that if you don’t fill out the ASR form correctly, your registration will be rejected by the online system.

Some FCC licensing rules allow changes involving larger variations (i.e., more than one foot, more than one second) without an FCC construction permit, but those rules do not override the ASR requirements. Thus, if the changes would result in modification of the overall structure by one foot and/or one second or more, prior approval from the FAA and modification of the ASR are now required.

The FCC decided not to dictate a uniform method of determining geographic coordinates. In any event, though, the coordinates submitted to the FCC in an ASR will still have to match those submitted to the FAA. (Remember that while the FAA and all non-broadcast FCC services use NAD83 coordinates, broadcast licenses are still based on NAD27 coordinates, so an appropriate conversion may need to be made, depending on what you are applying for and to whom.)

Another amendment intended to harmonize overlapping FCC and FAA rules: when a tower under construction reaches its maximum height, or when the height of an existing structure is changed or the structure dismantled, the owner must now notify the FCC (as well as the FAA) within five days. Previously the Commission’s rules required notifications either within 24 hours (in the case of construction or dismantlement) or immediately (in the case of height changes).

Voluntary Registrations. Not all antenna structures require FCC tower registration. Rather, only towers more than 200 feet in height (regardless of location), and some shorter towers located close to airports, are required to obtain FAA no-hazard determinations and FCC ASRs. But owners of some towers that don’t require registration nevertheless register voluntarily for various private business reasons – maybe to make it easier to show compliance with environmental requirements, to get their towers listed in directories that may be consulted by prospective tenants, etc. The FCC will continue to allow voluntary registration. In fact, it’s going to add a data field to its ASR system for owners to specify that their registration is voluntary. Registrants who have already signed up voluntarily will not have to modify their registrations to report them as voluntary. The FCC will not require painting and lighting of voluntarily registered towers, and voluntary registrants are free to cancel their registrations at any time.

ASR Displays and Notifications. Tower owners with ASRs are required to display their ASR number, but confusion has occasionally arisen about just what that requirement entails. The simple statement of the rule is that the required information must be displayed on a permanent sign “in a conspicuous place readily visible near the base of the antenna structure.” But some towers are enclosed by perimeter fences, and a sign at the base of the tower is too far away for someone outside the fence to read. The Commission has now clarified that the ASR and contact information must be posted at the place, nearest the tower, which is accessible by persons seeking to find out the ASR number. If a perimeter fence has two or more locked entrance gates, the ASR information must be posted at each gate. If one perimeter fence surrounds more than one tower (such as in an AM broadcast directional array), ASR information for each tower must still be posted at the base of that tower, with information for all of them at the fence entry points. (Multiple towers in an array are each supposed to be separately registered in ASR.)

While the ASR display requirement may just have gotten a bit tougher, there is a bit of compensating good news. The rule requiring owners to provide each tenant with a paper copy of the tower ASR has been dragged into the 21st Century: in lieu of a paper copy, owners may now provide their tenants with link to the ASR’s location in the FCC’s database.

When the Lights Go Out. When tower lights fail, it’s not time for romance; rather, it’s time for immediate notice to the FAA, so that the FAA can in turn issue a Notice to Airmen (NOTAM) of the unlit hazard to air navigation. Ditto for when failed lights are repaired (so the FAA can cancel the NOTAM). But NOTAMs have expiration dates, so the FCC has now clarified that, in addition to those notifications, tower owners must also keep the FAA apprised of the anticipated repair timetable at the time each NOTAM expires. Thus, when an you notify the FAA of a light failure, you should (a) be sure to find out when the ensuing NOTAM will expire and then (b) enter that date into a calendar or tickler file so you’ll be sure to get back to the FAA with the required progress reports.

How long do you have to fix a lighting outage? The FCC’s rules have historically been a bit inconsistent, with different language in different rules. But now a uniform (but still less than precise) requirement has been imposed: repairs must be completed “as soon as practicable” (the FCC has not specified any exact deadline). Owners must retain records of extinguished or improperly functioning lights, and of their repair, for two years.

When Colors Fade. Lighting failures aren’t the only occasion for corrective action. Those towers which are required to be painted with aviation orange and white stripes must keep the orange paint in good condition, so that it is readily visible. The FAA publishes an “In-Service Aviation Orange Tolerance Chart” which shows degrees of fading and specifies the point when repainting is required. This chart must be compared to orange bands on the top half of the tower, because the top half usually weathers faster. The FCC requires use of the FAA’s chart but hasn’t specified how close to (or far away from) the tower one must stand when comparing tower color to the chart.

Odds and Ends. While digging through the overgrowth that had thrived in Part 17, the Commission also noticed that its rules made repeated references to various FAA Advisory Circulars that were ever so slightly out of date. Bring out the regulatory weed whacker! The FCC has now removed references to specific outdated FAA Advisory Circulars and, going forward, will simply require adherence to FAA rules and publications as adopted from time to time. Towers must be painted and lighted according to the terms of the FAA’s Determination of No Hazard, although the FCC reserves the right to impose additional or different requirements on a specific tower. When the FAA adopts new requirements, the FCC will not require existing towers to comply with those requirements, absent modification or reconstruction of the tower, unless the FAA makes its own changes retroactive. The FCC has also made clear that it claims jurisdiction over any tower intended to support antennas that will transmit and/or receive radio energy. That jurisdiction runs from the start of construction to dismantlement, regardless of when radio transmission actually starts from the tower.

Loose Ends Still Loose. One longstanding question that the FCC has not answered involves the FAA’s proposal to take interference between FM radio broadcast signals (in the 88-108 MHz band) and aircraft communications (in the 118-136 MHz band) into account when issuing Determinations of Hazard or No Hazard. The extent to which the FAA might regulate RF-related matters has been a bone of contention between the FCC and the FAA for decades: the FCC tends to view itself as the final word with respect to regulating spectrum use, and the FAA’s repeated efforts to impose its own interference standards through its tower regulation program have led to some tension between the two agencies. Most recently – that would be four years ago – the Commission got the FAA to back down, at least for the time being; but the issue remained open while the FAA pondered the question some more. The pondering has apparently not yet been completed, as the FAA has not yet resolved its own rulemaking on this issue. Accordingly, the FCC’s rules for now will specify that notice to the FAA is required only with respect to possible physical obstruction. When and if the FAA revises its rules to include RF interference considerations, the FCC will decide whether or not to change its own rules to conform.

While the changes adopted by the Commission spread across a wide range of tower regulations, the fact is that none of the changes is particularly complicated or particularly controversial. And yet, it’s taken nearly a decade for the FCC to get the job done. As Commissioner O’Rielly bemoaned, “why did it take nine years to get this item before the Commission for a vote?” (Noting that one of the rules being amended called for notification of lighting outages “by telephone or telegraph”, Commissioner Pai deadpanned that “our modernization effort is long overdue.”) As with many questions, O’Rielly’s can’t really be answered.