The author is a paralegal with law firm Fletcher Heald and Hildreth, on whose blog this article originally appeared.
If you own a tower subject to the FCC’s Antenna Structure Registration (ASR) requirements, the Wireless Telecommunications Bureau’s got something to say to you: Shape up and pay attention to the rules … or else. In a terse public notice, the Bureau advises that, in the course of reviewing ASR applications, it has “discovered several types of defects”. All the observed defects “may be considered violations of FCC rules and are potentially subject to enforcement proceedings.” Get the message?
What “defects” is the Bureau talking about here? Here’s the list with respect to existing towers:
- Failure to obtain a No Hazard Determination from the FAA prior to construction;
- Failure to register the structure prior to construction;
- Failure to notify the FCC within five days of completion of either construction or dismantlement;
- Failure to light and paint the tower in conformity with the lighting/painting specifications set out for the tower in the ASR system and/or in the FAA No Hazard Determination;
- Having the height and/or location of the tower differ materially from the height/location specified in the ASR system (see below for more on what a “material” difference is);
And if you’re merely an applicant looking for initial authority to construct or modify a tower, here’s some more miscues that can get you in trouble:
- Using ASR certification (1) before an environmental review has in fact been completed. (With ASR certification (1), the applicant is called upon to certify that “the construction is exempt from environmental notification (other than due to another agency’s review) and it does not fall within one of the categories in Section 1.1307(a) or (b) of the FCC’s rules”);
- Using ASR certification (3) before the Bureau has notified the applicant that an Environmental Assessment is not required. (ASR certification (3): “The environmental notification has been completed, and the FCC has notified the applicant that an Environmental Assessment is not required under Section 1.1307(c) or (d) of the FCC’s rules, and the Construction does not fall within one of the categories in Section 1.1307(a) or (b) of the FCC’s rules”); and
- Using ASR certification (4) – “The FCC has issued a Finding of No Significant Impact” – before the FCC has in fact issued such a finding.
All of these problems can generally be found by the Bureau in the “back end” of the ASR system. One other problem not so easily discernible involves reporting of changes in a tower’s ownership. Since the Bureau doesn’t necessarily know when a tower has changed hands, it can’t be sure whether the ownership information on file is correct. But when discrepancies do come to light, the Commission hasn’t hesitated to lower the boom there as well.
A note about “material” discrepancies in height or location. The FCC’s current rules specify that alteration of a registered antenna structure requires a new registration prior to the alteration … BUT the rules don’t define what constitutes an “alteration”. As we reported last August, the Commission has adopted new standards for that purpose: any height change of one foot or more, and any change in latitude or longitude of one second or more. However, those changes have not yet gone into effect, since they have not yet been approved by the Office of Management and Budget.
In any event, in light of the Bureau’s reminder, this would be a good time to review your tower registrations for accuracy and compliance. Of course, not all towers have to be registered in the ASR system, so there’s at least a possibility that your tower isn’t subject to these requirements and you’re off the hook. But until you (along with, maybe, your consulting engineer) have reviewed all the relevant rules – and your tower specs and any information already in ASR – you won’t know for sure. Fines for failure to comply with the ASR rules can routinely run from $3,000 (for failure to timely file ownership change applications) to $10,000-25,000 for painting, lighting and notification violations. And in 2013, a notice of apparent liability and forfeiture in the amount of $234,000 was issued for failure to comply with ASR requirements.
In other words, there are a lot of good reasons to take the Bureau’s reminder to heart.