Under Part 17 of the FCC’s rules, tower owners are required to notify the FAA, either via telephone or through a web-based form maintained by the FAA’s US NOTAM office, within 30 minutes of discovering a lighting outage and subsequently take remedial steps the repair the outage as quickly as possible. The NOTAM process is critical to air safety, and the FCC has engaged in recent enforcement action where the process has not been followed, as reported in our recent blogs. Currently, all NOTAMs expire automatically after 15 days. The agencies recognized that some lighting outages cannot be addressed within the 15 day period and having a default period may create unnecessary burdens and inefficiencies on tower owners forced to make repeated filings and the agencies that process them.

To streamline the process, the FAA plans to revise its web-based form by mid-January to allow tower owners to self-select an expected repair date. The advisory warns the industry that the FCC “will respond aggressively” if it determines that tower owners are abusing the flexibility of the new process.

The updates to the NOTAM requirements are part of a larger initiative at the FCC to eliminate outdated rules and to address the rules that relate to wireless infrastructure, including recent amendments to the marking and lighting rules and the tower siting rules. Tower owners should continue to pay close attention to FCC and FAA actions in this area and take advantage of rule changes designed to facilitate deployment, maintenance, and compliance with infrastructure obligations. More liberal rules may be coupled with greater enforcement.

The actions taken in the Report and Order fall into three primary areas. First, the FCC streamlined the Antenna Structure Registration (ASR) process and brought it into greater conformity with FAA recommendations on antenna structure marking and lighting specifications, construction notification, and the accuracy of data that antenna structure owners must provide. Second, the Commission updated its requirements for the maintenance of antenna structure marking and lighting and codified a process for exemptions from otherwise generally applicable quarterly inspection requirements. Finally, the Commission modified its lighting outage notification requirements and obligations regarding timeliness of repair. These updates are part of the FCC’s efforts to reform outdated and inefficient processes at the Commission.

Kelley Drye has issued a client advisory providing a detailed review of the FCC’s new tower rules. A copy of the advisory is available here.

The FCC’s goal with these updates is to increase efficiency in the tower construction process while at the same time improving compliance and maintaining the safety considerations for pilots and aircraft across the country. Currently, companies constructing new tower sites must navigate an extensive approval process, including the National Historic Preservation Act (NHPA) and the National Programmatic Agreement (NPA), review by potentially affected Tribal Nations and State Historic Preservation Offices, EPA’s National Environmental Protection Act (NEPA), as well as review and approval by local governments, the FCC and the FAA. Tower owners must also comply with tower painting, marking and lighting requirements.

In a recent blog post, Chairman Wheeler said the new rules seek to “provide clarity and reduce regulatory burdens on antenna structure owners and licensees” while protecting the FAA’s requirements to protect air travel. Wheeler expects the updates “will enable the companies that deploy wireless networks to build out quickly without unnecessary burdens and, as a result, benefit American consumers by meeting their demand for more and more wireless service.”

The specific changes to the Part 17 of the FCC’s rules addressing antenna structures, are not yet public since the Report and Order is not yet available. However, the FCC’s Wireless Telecommunications Bureau indicated the updated rules eliminate outdated provisions and streamline the regulations with FAA regulations, meaning the Report and Order deserves a close look by those owning and deploying antenna structures, as well as the operators using them. We do know that there will be an exemption from quarterly physical inspection of towers for tower owners that use robust remote monitoring systems. Additionally, the FCC updated the rules for lighting outage reporting and tower maintenance requirements. The new streamlined process could facilitate small cell and broadband deployment nationwide, which continue to be high priorities for the Commission and commercial mobile wireless providers. But tower construction firms, utilities, and many others will have a real interest in the Report and Order as well.

Ohana Media Group, LLC (Ohana): In June 2013, a Bureau agent observed that an Ohana antenna structure did not have the correct daylight hours lighting in operation on two successive days and advised Ohana of the outage. Upon being contacted by the Bureau, Ohana initiated a Notice to Airmen (NOTAM) with the Federal Aviation Administration (FAA), required when there is a known tower lighting outage of more than 30 minutes duration. When the Bureau’s Anchorage Office issued a Notice of Violation (NOV) a month later, Ohana had already repaired the lighting and installed two redundant monitoring systems. The NAL issued to Ohana proposed the base forfeiture amount with no adjustment for lighting violations ($10,000) after alleging violations of the rule requiring proper tower marking and lighting and the rule requiring notification of the nearest FAA office or Flight Service Station whenever a top steady burning light is out or any flashing obstruction light is observed or known to be not working for more than 30 minutes. Ohana’s cooperation apparently avoided the application of any aggravating factors.

Kemp Broadcasting, Inc. (Kemp): In April 2013, Bureau agents observed that Kemp’s 401-meter antenna did not have the proper daytime lighting at either the top or at three lower levels. An employee was notified in person by the agents, who returned after dark to find one of the red flashing lights required on this tower at night was out. To make a long story short, some of the lights continued to be out for several months following the agents’ initial observations. Even after receiving a mid-May NOV and further contacts from the Bureau, Kemp apparently did not initiate a NOTAM with the FAA after several months. Finally, the Bureau itself notified the FAA in mid-September. Despite all of that, and the allegations in the NAL issued to Kemp that three FCC rules were violated – failure to exhibit required lighting, failure to notify the FAA of outages, and failure to maintain a properly functioning monitoring system – the Bureau started with a base forfeiture amount of $10,000 and made a modest upward adjustment of $4000 for Kemp’s repeated failure to notify the FAA of the outages.

AT&T Services, Inc. (AT&T): Following an April 2103 complaint from the Los Angeles Police Department regarding an unlit antenna structure, an agent of the Bureau confirmed the structure, owned by AT&T, was of a sufficient height absent a special aeronautical study (i.e., over 200 feet) to require lighting and marking, as well as antenna registration. Although AT&T six days later removed a whip antenna to bring the height below 200 feet, the Bureau issued an NOV in early May. AT&T acknowledged the whip antenna had been installed five months prior to the Bureau inspection, and that the FAA had not been properly notified of the structure. The Bureau noted that the base forfeiture of $10,000 would be proposed as in the two previous cases, as well as a separate base forfeiture amount of $3000 for failing to register the antenna structure with the FCC. The Commission noted only one aggravating factor that it was applying: ability to pay. Because AT&T is a multi-billion enterprise, and to ensure the forfeiture amount is an adequate deterrent, the Bureau increased the forfeiture proposed to $25,000. Notably, the Bureau observed in a footnote that Verizon Wireless in a 2010 order received a forfeiture of only the base amount, $13,000, for the same offenses. This differential between the two cases, AT&T and Verizon Wireless, signals the increased attention that the FCC is currently willing to put on the size of companies when assessing a penalty for violation of the rules. Further, the comparison of the AT&T case with the Ohana and Kemp cases leaves the unmistakable impression, absent possible additional detail not set forth in the NALs, that given the same or similar violation simply being a large company may expose one to greater liability that being an uncooperative, non-compliant smaller one, which is not what one would necessarily expect in a rational enforcement regime.