FAA to Adopt New Rules to Require Certain 50- to 200-Foot Towers to Be Clearly Marked

Under current Federal Aviation Administration (FAA) rules, towers that are less than 200 feet tall only require FAA approval if they are located on or near an airport, or if the tower falls within the “slope” of an airport runway. However, pursuant to the “FAA Extension, Safety, and Security Act of 2016” (the Act), certain towers between 50 to 200 feet high will be required to be clearly marked consistent with applicable guidance to be provided by the FAA. The Act gives the FAA one year – i.e., by July 2017 – to issue regulations to require the marking of certain “covered towers.” The marking requirements will apply to all “covered towers” constructed on and after the regulations go into effect and also to “covered towers” that exist as of the effective date of the regulations. Existing “covered towers” will have one year after the effective date of the new rules to comply with the marking requirements. Consequently, the new law could add significant costs for marking of existing and future covered towers for broadcasters and other tower owners, and could raise new FAA enforcement and liability concerns for tower owners who fail to comply with the new tower marking rules.

A “covered tower” (i.e., a tower that will need to be properly marked going forward) is 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 and not more than 200 feet above ground level at the highest point;
• has accessory facilities on which an antenna, sensor, camera, meteorological instrument, or other equipment is mounted; and
• is located: (1) outside the boundaries of an incorporated city or town; or (2) on land that is undeveloped or used for agricultural purposes.

The term “undeveloped land” is defined as any area where the FAA determines low-flying aircraft are operated on a routine basis, such as low-lying forest areas with predominant tree cover under 200 feet, and pasture and range land. The law requires the FAA to develop and maintain a database that contains the location and height of each covered tower. The Act does not specify who would have access to the database, but it does require users who access the database to agree and acknowledge that information in the database may only be used for aviation safety purposes, and may not be disclosed for any other purposes. The Act also requires the FAA to ensure that any “proprietary information” in the database be protected from disclosure, but the Act does not specifically address what information would be considered proprietary.

The law does specifically exclude certain towers, including structures that: (i) are adjacent to a house, barn, electric utility station, or other building, or within the curtilage of a farmstead; (ii) support electric utility transmission or distribution lines; (iii) are wind-powered electrical generators with a rotor blade radius that exceeds six feet; or (iv) are a street light erected or maintained by a Federal, state, local, or tribal entity.

Although these exceptions are designed to limit which towers have to be marked, many of the terms used by Congress in the Act are still undefined. The FAA will need to decide how to define these terms and adopt new rules through a notice and comment rulemaking proceeding. The rulemaking proceeding has not yet been initiated, but some of the terms the FAA will need to clarify include: “accessory facilities,” “adjacent,” “agricultural purposes,” “antenna,” and “building.” Depending on how these and other terms are ultimately defined, the FAA could either decide to limit the scope of any new tower marking requirements, or it could greatly expand the universe of towers that have to be marked.

Once adopted, the new rule will certainly cover many existing towers that previously did not have to be marked. Thus, the new FAA rules will likely increase costs and regulatory burdens for some tower owners, including radio and television stations. As a result, broadcasters and other tower owners should closely monitor the FAA’s forthcoming rulemaking proceeding, and be prepared to file comments in the proceeding, if necessary.

Should you have any questions regarding the FAA’s rulemaking proceeding or the new rules to be adopted by the FAA, please contact any attorney in our office.