Compelling Co-tenant Coordination

Love Thy Neighbor, But Know That Sharing Tower Space Can Create Practical Problems
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(click thumbnail)Many of us have never climbed a broadcast tower, and probably have no desire ever to do so. We can only imagine the hazards faced by the hardy souls who climb towers to earn a living.

In addition to the natural dangers (wind, rain, temperature extremes, and flocks of migratory birds which, according to some, smash themselves into towers pretty much all the time), tower workers must also contend with man-made radio frequency electromagnetic fields (REFs) generated by broadcast users of towers.

In an ideal world, at least from a tower worker's perspective, transmitters should be turned off so that antennas stop radiating RF when people have to climb a tower to maintain it or install/repair/remove equipment attached to it.

Of course, this solution is less than ideal to those broadcasters who would have to turn their stations off, albeit temporarily — after all, their businesses are based on beaming their signals out to their audiences, so turning off means shutting down the shop.

Such shut-downs can alienate advertisers and drive previously loyal listeners to other stations. Obviously, most broadcasters are reluctant to risk either of these phenomena.

In order to protect tower workers, the Federal Communication Commission's rules limit the amount of REF to which broadcasters can expose people working around transmitter and tower sites.

The FCC emphasizes the importance of compliance with these particular rules by including the following explicit written condition in each new construction permit and broadcast license it issues: "The permittee/licensee in coordination with other users of the site must reduce power or cease operation as necessary to protect persons having access to the site, tower or antenna from radiofrequency electromagnetic fields in excess of FCC guidelines."

The issue of "coordination" between two or more parties to reduce power or cease operations makes a contract very useful in this context.

For while the FCC's rules — and the terms of each broadcast license — require broadcasters to coordinate with each other to protect workers at a tower site, actual enforcement of that coordination is made a lot easier when a tower user has the right wording in a tower lease or other site sharing agreement with other users.

The difference is that if you rely only on the FCC rules and the FCC's enforcement of those rules to resolve coordination conflicts, you could wait for a long time for the FCC to act and still not get the relief you are seeking.

But if you have a contract with the other site user(s) or the tower owner, you have the option of going directly to state or local court to enforce the terms of your contract, and relief may be much quicker and more effective.

For example

A hypothetical situation may help to illustrate this point.

Able Radio Inc. and Baker Television Company both are tenants on a tower owned by Big Stick Tower Corp. Baker wants to install a new DTV antenna at the top of the tower. Able's FM antenna is side-mounted on the tower about 100 feet below Baker's antenna.

In order for the tower crew to install Baker's new antenna, Able will have to reduce its signal to 10 percent of its normal power from 8:30 a.m. to 5:30 p.m., Monday through Friday, for two weeks while the tower crew rigs up, takes the old antenna down, puts the new DTV antenna up and then rigs down. If there is bad weather, that procedure could be extended for another week or more.

In many cases, Able Radio might be very happy to cooperate. But let's throw a wrinkle into the fact pattern.

Let us assume that Baker's DTV installation is scheduled right in the middle of Arbitron's rating period in Able's market. Able's showing in those ratings will directly affect Able's ability to sell advertising time on its station for the next calendar quarter.

So turning its station off smack in the middle of ratings is clearly not an attractive option for Able, no matter how altruistic it might otherwise choose to be.

So Able tells Baker that Baker's work will have to wait until after the ratings measurement period is over. Baker says that this is the only time that the tower crew will be available for the foreseeable future, the work has been scheduled for a long time in advance, and Baker just can't wait. If Baker doesn't have a provision in its tower lease that forces Big Stick to make Able reduce power, or if Baker doesn't have a tower sharing agreement directly with Able which covers this issue, then Baker's only avenue for relief is to ask the FCC to enforce its rules requiring Able to "coordinate" with Baker.

The problem Baker faces is that the FCC's staff may think that making Baker wait is reasonable, regardless of the economic cost or inconvenience to Baker of delaying its new DTV antenna's installation. Or the FCC might try to craft a compromise position that would require Able to reduce power only between the hours of 10 a.m. and 4 p.m., thus preserving Able's full-power signal during "drive-time" hours — thereby helping Able keep its ratings up, but costing Baker more money in the process, since this altered schedule would take the tower crew longer to complete the work.

Also, the speed at which the FCC's staff may consider the parties' arguments and decide upon a solution could be lengthy if the commission's staff is preoccupied with other issues of more universal concern than a simple dispute between two licensees.

Worries about how and when the FCC might act could have been avoided if Baker had previously negotiated power reduction coordination provisions into its tower lease, and/or struck a separate agreement with Able directly when it first became a tenant on the tower.

In such circumstances, Baker would have the option of going to a local court and asking for an injunction to enforce such agreements.

Although the enforceability of any particular contract term often varies from jurisdiction to jurisdiction, most courts have rules which permit expedited hearings for requests for injunctions or restraining orders. Baker's ability to take action in a local court, although not guaranteed to ultimately be any more successful that asking the FCC to enforce its rules, at least gives Baker some additional leverage in negotiating with Able and Big Stick to reach a satisfactory solution to the competing economic interests of the parties.

So when negotiating a tower lease, broadcasters should consider trying to include carefully crafted wording dealing with how and when users of the tower will coordinate power reductions to protect tower workers from REF hazards.

Alternatively, broadcasters should consider the possibility of negotiating an agreement directly with the other tower tenant(s) to deal with this issue. Negotiating these issues will generally be easier before an actual dispute arises than after the gloves hit the ice, and will in most cases afford greater predictability for all parties involved.

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