In our Ask The Attorney segment today John Garziglia answers a question from a GM who is renting tower space from another radio station. The GM has noticed that the light bulbs in the beacon have been out for weeks. And, the tower's registration number is not visible from the road. What should the GM do? What is he required to do? Is it OK for him not to do anything?
Radio Ink asks: I rent space on another station's tower. I can see that both bulbs in the beacon have been out for several weeks. Also the tower's registration number is not visible from the road. What are the liabilities for my station?
John Garziglia says:
An FCC radio station licensee antenna space renter has no day-to-day responsibilities to insure that tower lights are operational, or that the tower owner otherwise complies with FCC and FAA rules and regulations. In 1996, the FCC shifted the responsibility for tower lighting and painting from FCC licensees to the owner of the tower.
But, since tower lights involve safety, the FCC requires proactive steps in the event an antenna space renter becomes aware of a lack of required painting or lighting. The FCC states that "if a tenant licensee has reason to believe that the structure is not in compliance or that the owner is not carrying out its responsibility to maintain the structure as required ... the licensee must immediately notify the owner, notify the site management company (if applicable), notify the Commission, and make a diligent effort to ensure that the antenna structure is brought into compliance."
Thus, a radio station licensee antenna space renter who observes that tower lights are out on its rented tower must immediately contact the tower owner or site management company, and should keep notes of doing so. If the response received from the tower owner or site management company is that the FAA has been notified, and that the tower light outage will be corrected in a timely fashion, then nothing more needs to be done.
If, however, the radio station licensee antenna space renter does not receive an immediate satisfactory response from the tower owner or site management company, then the radio station licensee should immediately notify the FCC. The FCC says that in such circumstances, the licensee "must assume responsibility and take appropriate action if circumstances would lead a reasonable person to question whether the structure is being maintained" giving as examples a licensee becoming aware that electrical power is no longer available at the site or its rental payment for antenna space is being returned due to unavailability of the tower owner. The FCC requires the radio station licensee to take reasonable actions to ensure that the structure is immediately brought into compliance and will fine a radio station licensee tower space renter on a case-by-case basis in egregious circumstances if a tower light outage situation goes unreported and un-remedied.
As for the failure to post the tower FCC antenna structure registration so it is visible from the road, a tower space renter has no responsibility for that. If the FCC has to be brought into the loop to resolve the tower light outage issue, however, it would not hurt to note to the FCC the additional failure to post the ASR.
So, in summary, while the FCC imposes no day-to-day tower maintenance or inspection responsibilities on a radio station licensee that is merely an antenna space renter on another's tower, it does impose a responsibility to take proactive steps if that licensee becomes aware of a serious failure of the tower owner or management company to maintain painting and lighting requirements.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com
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