Ashley Ludlow is a communications attorney with Fletcher, Heald & Hildreth and is a contributor to its company’s blog.
If you own a tower that’s between 50 and 200 feet tall, the chances are that you don’t have to mark it to satisfy any FAA standards — all of which makes your life easy. But that may be about to change.
Congress recently passed, and the president signed, H.R. 636 – a/k/a the “FAA Extension, Safety, and Security Act of 2016”. The primary purpose of this sweeping, 51-page piece of legislation is to ensure the continuity of the FAA’s operations for another year (through Sept. 30, 2017). But buried deep in its legislative bowels is Section 2110, a little-publicized provision that could have serious repercussions on small tower owners, particularly those in rural areas.
Section 2110 requires the FAA to issue regulations within the next year requiring “covered towers” to be “clearly marked.” And what’s a “covered tower”? That would be a structure that:
● Is self-standing or supported by guy wires and ground anchors
● Is 10 feet or less in diameter at the above-ground base, excluding concrete footing
● Is at least 50 feet above ground level and not more than 200 feet at its highest point
● Has accessory facilities on which an antenna, sensor, camera, meteorological instrument, or other equipment is mounted or
● Is located (a) outside the boundaries of an incorporated city or town; or (b) on land that is (i) undeveloped; or (ii) used for agricultural purposes
Congress helpfully defines “undeveloped” land as area over which the FAA “Administrator determines low-flying aircraft are operated on a routine basis, such as forested areas with predominant tree cover under 200 feet and pasture and range land.” The law also expressly excludes any structure that:
● Is adjacent to a house, barn, electrical utility station or other building or within “the curtilage of a farmstead”
● Supports electric utility transmission or distribution lines
● Is a wind-powered electrical generator with a rotor blade radius that exceeds six feet or
● Is a street light erected or maintained by a federal, state, local, or tribal entity
Those exclusions narrow the universe of towers subject to the new requirements — but lots of currently unmarked towers would still be left in that universe, depending on how some of the statutory terms end up being defined. And the law authorizes the FAA to define any otherwise undefined terms “as necessary to carry out the section.” That could lead to problems for the owners of small broadcast, amateur and other communications towers, depending on how the FAA eventually defines such statutory terms as “adjacent,” “building,” “curtilage,” etc. For instance, most broadcast towers feature a transmitter shack (sometimes referred to as a “doghouse”) nearby. If a tower were in the middle of a field with only the shack next to it, would the shack constitute a “building” for purposes of any new marking requirements? Similarly, how close would a building need to be to be considered “adjacent”? And what does “clearly marked” mean, anyway? The FAA already has a well-developed set of standards for marking taller towers — would those apply to shorter towers, too, or might the FAA opt for less onerous marking requirements? At this point, we can’t be sure.
Point being, depending on how the FAA chooses to define things here, many small, rural broadcasters might find themselves required to fork over considerable change to mark their towers to FAA standards.
Section 2110 appears to have been included in the act as a result of some prodding by agricultural and other low-altitude pilots — think crop-dusters, emergency medical helicopters, firefighting aircraft and the like — concerned about the dangers posed by certain types of unmarked towers. One organization representing some such pilots (the National Agricultural Aviation Association) has indicated particular concern about meteorological testing towers erected in connection with wind power installations.
While concern about aeronautical safety can never be discounted, it’s not clear that the dangers posed by meteorological testing towers are also posed by, for example, broadcast towers. If not, presumably the FAA could carefully tailor its regulatory definitions to limit the scope of any new marking rules to reach only the problematic towers, while leaving others free of new marking chores. But because government agencies are notorious for their “one-size-fits-all” approach, it’s at least possible, if not likely, that the FAA will instead propose sweeping requirements applicable to situations totally removed from and unrelated to the purpose behind the legislation.
That being the case, we think it would be a very good idea for potentially affected folks to participate in the FAA’s rulemaking, once it gets cranked up.