Potential issue looming for stations with towers less than 200 feet tall

posted on 8.05.2016

There is a potential problem lurking in a new FAA reauthorization law that could affect stations with short towers, specifically, those under 200 feet tall.

These types of station towers are found primarily in smaller, rural radio markets, but other aspects of the law could bring other towers into question.

In the past, Federal Aviation Administration rules did not impose lighting or specific painting requirements for such towers unless the tower was in the flight path of a nearby airport.

Earlier this summer, Congress passed H.R. 636, the “FAA Extension, Safety, and Security Act of 2016”, which was signed into law by President Obama on July 15.

The primary objective of the bill was to ensure FAA operations through September of 2017.

At issue, however, is Section 2110 of the new law which requires the FAA to formulate and adopt marking and lighting rules for existing and new towers between 50 and 200 feet that are or will be located in rural areas.

“Section 2110 appears to have been included in the Act as a result of some prodding by agricultural and other low-altitude pilots – think crop dusters, emergency medical helicopters, firefighting aircraft and the like – concerned about the dangers posed by certain types of unmarked towers,” Ashley Ludlow, an attorney with TAB Associate member law firm Fletcher Heald and Hildreth, told Radio World in late July.

There are no FAA rules in effect yet and it will take some time before the FAA formulates and adopts them.

Existing towers will have one year to come into compliance from the effective date set forth in the still unformulated rules.

Ludlow said Section 2110 requires the FAA to issue regulations requiring “covered towers” to be “clearly marked.”

The new law, Ludlow said, defines a “covered tower” as a structure that:

• is self-standing or supported by guy wires and ground anchors;
• is 10 feet or less in diameter at the above-ground base, excluding concrete footing;
• is at least 50 feet above ground level and not more than 200 feet at its highest point;
• has accessory facilities on which an antenna, sensor, camera, meteorological instrument, or other equipment is mounted; or
• is located (a) outside the boundaries of an incorporated city or town; or (b) on land that is (i) undeveloped; or (ii) used for agricultural purposes.

David Oxenford, an attorney with TAB Associate member law firm Wilkinson Barker Knauer, said there are also some exceptions laid out in the new law as well, such as:

• Structures 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.

Which towers are ultimately affected will depend greatly on how the FAA defines certain terms in the Act such as “adjacent”, ”building”, “curtilage”, etc.

For example, Ludlow asked, “if a tower were in the middle of a field with only the shack next to it, would the shack constitute a ‘building’ for purposes of any new marking requirements?”

As the old saying goes, the devil will be in the details

“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,” Oxenford warned.

TAB will keep stations apprised on developments with these new regulations as they occur.

Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.

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