New FAA Rules Could Substantially Impact New and Modified Broadcast Stations

The FAA is proposing substantial changes to its review of possible hazards to air navigation for new and modified broadcast station facilties.

The changes are detailed in an FAA document entitled: SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE AIRSPACE. A summary of this document, along with the procedures for filing comments in response to it, is published in the Federal Register at: Notice of Proposed Rulemaking.

Although the FAA's document is lengthy and the proposed changes are substantial, there are two issues about which every broadcast station licensee should be concerned:

EMI (Electromagnetic Interference): The FAA has in the past asserted its authority (one of the only Federal agencies to do so other than the FCC) over the effects of interference from new broadcast facilities to the FAA's system of radio navigation aids, airport facilities and communications facilities. The FCC has generally acceded to the FAA's determination of interference even though the FAA candidly notes in its document (at page 3) that: "[t]he FAA is not empowered to prevent construction or alteration proponents from proceeding with construction, even if it determines that the structure presents a hazard."

Rather than just new broadcast facilities, the FAA is now proposing that virtually ALL changes to a radio or television broadcast station transmission facility be submitted in advance for a possible FAA determination of hazard. The FAA intends to review changes in antennas, chnages of antenna positions on a tower, power increases, installation of an additional antenna on an existing tower, and a myriad of other broadcast station transmission facility changes that were previously not reviewed by the FAA.

The FAA's history of reviewing broadcast station applications for EMI effects is spotty at best, and may be beyond its authority. While there is no question but that air safety is an utmost priority, the FAA has in the past, for instance, taken the position that the all airline radios are to be protected from interference rather than requiring that airline radios be robust and more impervious to interference.

Additionally, the computer program the FAA uses to forecast possible EMI has in the past been the subject of much controversy. The FAA in its proposed rule does not specifically states what criteria it will use to determine harmful EMI from a proposed broadcast station facility.

The cost to screen each broadcast station change for possible EMI effects will add substantially to both the cost and uncertainty of broadcast station changes.

Expiration Dates for No Hazard Determinations: The FAA presently issues "Determinations of No Hazard" that are valid as long as an FCC issued construction permit application either is pending, or if granted, is valid. The FAA is proposing to go to a system that grants determinations valid for 18 months with an optional 12 month extension. If the FAA proposal goes into effect, broadcasters may find an FAA determination of no hazard expiring long before an FCC issued broadcast station construction expires.

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Anyone who assists broadcast station licensees either with its legal affairs or its engineering affairs should review the FAA's proposed changes, and should consider filing comments with the FAA. The deadline for comments is September 11, 2006. Comments may be submitted using the procedures specified in the FAA's Federal Register summary of the Notice of Proposed Rulemaking.