by Michael L. Higgs Jr., Esq. —
The FCC’s Enforcement Bureau has been cracking down on tower violations over the past several months, and that continued with two more Notices of Apparent Liability (NAL) released on June 9, both from the Philadelphia Field Office. Dalrymple Realty was fined $10,000 for failing to clean or repaint its antenna structure in Elmira, NY. The 320-foot tower was required by its Antenna Structure Registration (ASR) to conform to the painting and lighting requirements of FAA Advisory Circular 70/7460-1F, FAA Chapters 3, 4, 5 and 9, which require that the structure be painted for daytime visibility, and must display red obstruction lighting during the nighttime.
A few days following the Field Office visit, Dalrymple made repairs to the lighting system, installed a remote monitoring system, and applied to the FAA for permission to replace its painting obligations with white obstruction lighting (which was subsequently granted). The lessons to take away from this case are: (1) the monitoring of obstruction lighting needs to be more than “casual”, and (2) if you are going to make a change from one method of obstruction marking to another, get permission from the FAA and FCC first.
Northeast Passage was fined $15,000 by the Bureau for several violations of the Commission’s antenna structure rules. NE Passage was charged with failing to: (1) exhibit medium-intensity obstruction lighting on the tower during the daytime; (2) monitor the tower’s obstruction lighting; (3) notify the FAA of a known light outage; and (4) immediately notify the Commission upon a change in the tower’s height.
According to the Commission’s Antenna Structure Registration (ASR) database, the tower should stand 242 feet tall and should have paint for daytime visibility and red obstruction lighting for nighttime visibility. During the inspection it was determined that the tower had the required red obstruction lighting, but in lieu of the required paint, it had white medium intensity lighting. However, the agents also observed that one of the two medium-intensity lights at the mid-level, and all of the daytime lights at the top level were extinguished. No NOTAM had been issued to warn pilots of the light outage. Also, according to a contractor working on the tower at the time of the field office visit, the structure was significantly taller than was listed on its ASR.
According to FAA records, NE Passage filed an application in 2006 specifying a new structure height of 382 feet, which required a medium-intensity, dual- lighting system. However, NE Passage failed to notify the Commission of the new tower height and the associated change in lighting specifications. Some of the factual claims of NE Passage with regard to who was responsible for monitoring and repairing the lighting system were determined by the Bureau to be untrue.
Under the Commission’s guidelines, the base forfeiture amount for failure to comply with prescribed lighting or painting is $10,000 and the base forfeiture amount for failing to file required forms or information is $3,000. The Bureau found that the failure of NE Passage to notify the FAA of a known light outage combined with its lack of diligence with regard to the monitoring of the requisite lights represented a deliberate disregard for Commission rules critical to ensuring the safety of air navigation, and thus concluded that an upward adjustment of $2,000 was warranted.
Michael L. Higgs Jr. is a member of the Telecommunications, and Entertainment and Sports Law practices of Shulman Rogers Gandal Pordy Ecker. Mr. Higgs’ telecommunications clients include tower owners, land-mobile radio operators, wireless broadband and ISPs, equipment manufacturers, municipal and public safety entities, radio and television broadcasters.