By: David Oxenford, Wilkinson Barker Knauer, LLP
My law firm has long provided legal advice to companies that operate communications towers, and the lawyers involved in that practice area have alerted me to the following development which will require the marking and lighting of many towers not currently covered by such rules.
Broadcasters and tower companies have long relied on FAA rules that generally don’t require the lighting of towers under 200 feet in height except when these shorter towers may interfere with the flight path of an airport. So the vast majority of these short towers used by broadcasters (sometimes simply for mounting auxiliary antennas) and by other wireless users have not been lit. That apparently will change under the FAA Extension, Safety and Security Act of 2016, passed by Congress earlier this summer and signed into law on July 15. Under provisions of this act, the FAA is required to adopt rules to require the marking and lighting of freestanding structures with heights of between 50 and 200 feet which are located in rural, undeveloped areas. The act refers to towers that will need to be marked and lit as “covered towers.” The new marking and lighting requirements will apply not just to new towers, but also to existing towers (after a one-year phase in period after the FAA’s new rules become effective).
So what is a “covered tower”? Essentially, the Act sets out the following definitions:
- Size. The Act defines “covered towers” as self-standing or guy wire-supported structures:
- 10 feet or less in diameter;
- More than 50 and less than 200 feet tall; and
- With “accessory facilities” mounted with antennas, sensors, cameras, meteorological instruments or other equipment.
- To be a “covered tower,” the structure must be located: (i) outside the boundaries of an incorporated city or town; (ii) on undeveloped land; or (iii) on land used for agricultural purposes.
- “Undeveloped land” means “a defined geographic area where the [FAA] Administrator determines low-flying aircraft are operated on a routine basis.”
- Exceptions. The following are not “covered towers”:
- Structurers adjacent to a house, barn, electric utility station or other building;
- Structures within the curtilage of a farmstead (for those not familiar with land-use terminology, a “curtilage” is the developed area of a farm immediately surrounding a house or other dwelling where residents have an expectation of privacy – it does not include surrounding fields);
- Structures that support electric utility transmission or distribution lines;
- Wind-powered electrical generators with rotor blade radius exceeding 6 feet; or
- Street lights erected by government entities.
The new law was apparently adopted at the urging of rural flying groups, including those involved in crop dusting, members of which apparently have high rates of accidents. That is why there is the emphasis on rural towers – and the exclusions for those in developed areas where such planes are unlikely to be flying.
The FAA will be adopting rules implementing the act, setting out the specific requirements for marking and lighting and further detailing the requirements for compliance with the act. From the effective date of the new rules, existing covered towers will have one-year to come into compliance.
As these new requirements may affect many broadcasters with tower facilities in rural areas, watch the developments with respect to these obligations carefully and start making your plans now for compliance.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your membership.