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Shulman Rogers Tower Group Alert

May 16, 2013

FCC Increases Tower Enforcement Efforts

Over the past couple of weeks the Enforcement Bureau has issued four Notices of Apparent Liability (NAL) for violation of the Commission’s tower rules. Two of the NALs involve the failure of site owners to enclose AM transmission towers within effective locked fences or other such enclosures. Section 73.49 of the Rules states that antenna structures “having radio frequency potential at the base … must be enclosed within effective locked fences or other enclosures.”  AM radio towers are potentially dangerous RF emitters.  By failing to properly secure those facilities, not only is the site operator opening itself up to FCC fines ($7,000 in each instance) but it is also faced with potential civil tort liability for failing to secure a dangerous “attractive nuisance”. If you have an AM transmission site, take a lesson from Wedding Crashers and LOCK IT UP!

Another NAL was issued for failure to exhibit requisite red obstruction lighting and notify the FAA of the light outage. Tall towers and sites situated in close proximity to airports are required to adhere to the FCC’s painting and lighting rules of Section 17.  Additionally, Section 17.48(a) of the Rules states that owners of antenna structures “shall report immediately by telephone or telegraph to the nearest Flight Service Station or office of the Federal Aviation Administration any observed or otherwise known extinguishment or improper functioning of any top steady burning light or any flashing obstruction light, regardless of its position on the antenna structure, not corrected within 30 minutes …”  This case represents another instance where substantial FCC fines are possible, yet still may be the least of your worries. If a helicopter or small plane were to come into contact with an antenna structure neither properly lit nor listed on the FAA’s Notice to Airmen (NOTAM), the FCC’s standard $10,000 forfeiture will pale in comparison to the civil (and potentially criminal) liability faced by the site owner. If any of your towers are lit, make sure that all responsible parties have the appropriate FAA office on speed dial (or speed-telegraph?).

And lastly, one unlucky site owner hit the enforcement trifecta by failing to (1) display the Antenna Structure Registration Number (ASRN) in a conspicuous place so that it is readily visible near the base of the Antenna Structure, (2) repaint the Antenna Structure as often as necessary to maintain good visibility, and (3) immediately notify the Commission upon a change in ownership information.  Generally, when a Field Office visit results in a notification that the tower’s paint job is not up-to-par, applying a new coat of paint before the next visit will eliminate (or at least mitigate) any fines.  We have also seen a significant amount of leniency for site owners who immediately post ASRN signage upon notification by the Field Office.  For owners who do not respond with such corrective actions in short order, the term “willfully or repeatedly” comes into play … accompanied by the requisite statutory fines. Ownership information, on the other hand, is one area where the Enforcement Bureau and the Commission have been cracking-down hard as of late.  For any sites you have constructed or acquired, be certain that all ownership information is up to date on the ASR. One last lesson from this case: cooperate with the Bureau!  Because of the site owner’s “failure for over two years to repaint the Antenna Structure and post the ASRN, and its failure for more than ten years to update the Antenna Structure’s ownership information, despite being warned to do so, demonstrates a deliberate disregard for the Commission’s rules and warrants an upward adjustment of $10,000.”  Total fines = $25,000 (plus attorney fees and administrative hassle!).

Shulman Rogers Strengthens Its Tower & Antenna Site Practice

Shulman, Rogers, Gandal, Pordy & Ecker, P.A. is pleased to welcome Michael Higgs to its Telecommunications Group. Michael has over 15 years of specialized experience in telecommunications infrastructure matters, representing site developers, landowners, and municipalities. Among his many accomplishments in this field, Michael has negotiated hundreds of antenna site and ground leases, and brokered the sale of dozens of tower and antenna sites. Michael joins a talented group of attorneys with experience on all matters relevant to today’s tower industry, including telecommunications, leasing, commercial finance, real estate and zoning. Call today to see how Shulman Rogers can help protect your assets and grow your business.

The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Tower Group or the Shulman Rogers attorney with whom you regularly work.

Contact

Alan S. Tilles
301-231-0930

Matthew D. Alegi
301-230-6574

Douglas K. Hirsch
301-230-5225

Helena S. Lopez
301-945-9230