Federal Register, Volume 75, Number 98, May 21, 2010, Pages 28463-28750 Page: 28,518

Federal Register/Vol. 75, No. 98/Friday, May 21, 2010/Proposed Rules

the public notice also may be obtained
via the Commission's Electronic
Comment Filing System (ECFS) by
entering the docket number WT Docket
No. 10-88. Additionally, the complete
item is available on the Federal
Communications Commission's Web
site at http://www.fcc.gov.
Synopsis of the Notice of Proposed
Rulemaking
I. Introduction
1. In this Notice of Proposed
Rulemaking (NPRM), the Commission
seeks comment on revisions to the
Commission's part 17 rules governing
the construction, marking, and lighting
of antenna structures. The Commission
initiates this proceeding to update and
modernize the part 17 rules. These
proposed revisions are intended to
improve compliance with these rules
and allow the Commission to enforce
them more effectively, helping to better
ensure the safety of pilots and aircraft
passengers nationwide. These proposed
revisions would also remove outdated
and burdensome requirements without
compromising the Commission's
statutory responsibility to prevent
antenna structures from being hazards
or menaces to air navigation.
II. Discussion
2. This NPRM proposes amendments
to the part 17 rules to update and
modernize them, including harmonizing
them with Federal Aviation
Administration (FAA) rules where
appropriate. The following discussion
will examine the entirety of part 17,
considering: (1) Antenna structure
registration and marking and lighting
specifications; (2) maintenance of
marking and lighting; and (3) other
matters.
A. Antenna Structure Registration and
Marking and Lighting Specifications
1. Provisions Governing Specification of
Marking and Lighting
3. The provisions governing
specification of marking and lighting for
registered antenna structures are set
forth in Sections 17.21 through 17.23 of
the rules. Section 17.21 specifies that
painting and lighting of an antenna
structure is required if the structure
exceeds 200 feet in height or if it
requires aeronautical study, unless an
applicant can show that absence of (or
lesser) marking would not impair air
safety. Section 17.22 provides that the
Commission will generally assign
specifications for painting and lighting
in accordance with FAA Circulars
referenced in Section 17.23, but also

provides that if such painting or lighting

is confusing, or endangers rather than
assists airmen, the Commission may
specify painting or lighting in the
individual situation. Section 17.23
provides that, unless otherwise
specified by the Commission, each new
or altered antenna structure to be
registered on or after January 1, 1996,
must conform to the FAA's painting and
lighting recommendations set forth on
the structure's FAA determination of
"no hazard" as referenced in FAA
Advisory Circulars AC 70/7460-1J
("Obstruction Marking and Lighting")
and AC 150/5345-43E ("Specification
for Obstruction Lighting Equipment"),
both of which are cross-referenced.
4. In its 2004 Biennial Review
Comments, PCIA-the Wireless
Infrastructure Association (PCIA) states
that FAA Advisory Circular AC 70/460-
1J referenced in Section 17.23 has been
superseded, creating a conflict between
the Commission's marking and lighting
requirements and the FAA's. In the
Biennial Review Proceeding, PCIA,
CTIA-the Wireless Association (CTIA),
and Cingular Wireless LLC (Cingular)
proposed that Section 17.23 be amended
to reference the most recent versions of
the FAA Advisory Circulars. PCIA seeks
this rule change in its Petition for
Rulemaking as well. In their comments
on PCIA's Petition for Rulemaking,
Cingular, Crown Castle USA, Inc.
(Crown Castle), and the National
Association of Broadcasters (NAB) agree
that the Commission's rules should be
consistent with the most recent FAA
painting and lighting recommendations.
In its Petition for Rulemaking, PCIA also
seeks to amend Section 17.23 to clarify
that the lighting and marking
specifications assigned to a structure by
the Commission upon registration do
not change unless the FAA recommends
new specifications for that particular
structure.
5. The Commission proposes several
revisions to these provisions. First, the
Commission agrees with commenters
that the rules should not reference
obsolete editions of the Advisory
Circulars. Rather than updating the
references in the current rules, however,
the Commission proposes to delete any
reference to Advisory Circulars as
unnecessary and potentially confusing.
Because each antenna structure owner is
clearly notified through the registration
process of the specifications that apply
to a particular structure, first by the
FAA itself in its "no hazard"
determination, and then by the
Commission in the owner's antenna
structure registration, the Commission
believes that specific reference in the
rules to particular Advisory Circulars is

unnecessary. Such references also may

cause confusion if the FAA updates the
relevant circulars more frequently than
the Commission amends its part 17
rules. Also, certain older registrations
reference discontinued FCC Form 715/
715A rather than the Advisory
Circulars. To avoid these results, the
Commission proposes that the rules
require the marking and lighting
recommended in the FAA
determination and associated study,
unless otherwise specified, rather than
in any particular circular. The
Commission seeks comment on this
proposal, and in particular on whether
there are any circumstances in which
this approach would not be clear.
6. PCIA proposes that the Commission
specify in the rules that lighting and
marking requirements do not change
unless the FAA recommends new
specifications for particular structures.
PCIA believes this language is necessary
to clarify that a revised FAA Circular
does not impose new obligations upon
already-approved antenna structures.
PCIA also indicates that this proposal
seeks rule codification of a statement
made on the FCC's Web site. The
Commission seeks comment on PCIA's
proposal. The Commission also seeks
comment on whether, in the event the
FAA changes its standards, it may
instead be preferable for the
Commission to have the flexibility to
apply any new standards retroactively.
Should the Commission defer in the
first instance to the FAA as the expert
agency on aircraft navigation safety as to
whether revised standards should be
applied to existing structures, unless
otherwise specified by the FCC?
7. Consistent with this discussion, the
Commission proposes several specific
changes to the rules. Section 17.4 of the
rules contains an overview of the
antenna structure registration process.
The Commission proposes adding to
17.4 a provision clarifying that the
FAA's recommended specifications are
generally mandatory, but that the
Commission may specify additional or
different requirements. The Commission
believes stating this simply up front will
provide clarity regarding the central
obligation of structure owners. The
Commission also proposes to amend
17.4 to indicate that no changes may
be made to the lighting or marking
specifications on an antenna structure
registration without prior FAA and
Commission approval. The Commission
seeks comment on these proposals.
8. With respect to 17.21 through
17.23, the Commission first proposes to
amend 17.21(a), which provides that
antenna structures shall be painted and
lighted when they exceed 60.96 meters

(200 feet) in height above ground level

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