2004 and 2006 Biennial Regulatory Reviews-Streamlining and Other Revisions of the Commission's Rules Governing Construction, Marking and Lighting of Antenna Structures; Amendments To Modernize and Clarify the Commission's Rules Concerning Construction, Marking and Lighting of Antenna Structures, 28517-28540 [2010-12142]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 98 (Friday, May 21, 2010)]
[Proposed Rules]
[Pages 28517-28540]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12142]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 17

[WT Docket No. 10-88; RM 11349; FCC 10-53]


2004 and 2006 Biennial Regulatory Reviews--Streamlining and Other 
Revisions of the Commission's Rules Governing Construction, Marking and 
Lighting of Antenna Structures; Amendments To Modernize and Clarify the 
Commission's Rules Concerning Construction, Marking and Lighting of 
Antenna Structures

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this Notice of Proposed Rulemaking (NPRM), the Commission 
seeks comment on revisions to the Commission's rules governing the 
construction, marking, and lighting of antenna structures. The 
Commission initiates this proceeding to update and modernize the 
Commission's rules.

DATES: Interested parties may file comments on or before July 20, 2010, 
and reply comments on or before August 19, 2010. Written comments on 
the Paperwork Reduction Act proposed information collection 
requirements must be submitted by the public, Office of Management and 
Budget (OMB), and other interested parties on or before July 20, 2010.

ADDRESSES: You may submit comments, identified by WT Docket No. 10-88; 
RM 11349; FCC 10-53, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: https://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: fcc.gov">FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.
    In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act information collection 
requirements contained herein should be submitted to the Federal 
Communications Commission via e-mail to fcc.gov">PRA@fcc.gov and to Nicholas A. 
Fraser, Office of Management and Budget, via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.

FOR FURTHER INFORMATION CONTACT: John Borkowski, Wireless 
Telecommunications Bureau, (202) 418-0626, e-mail 
fcc.gov">John.Borkowski@fcc.gov. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an e-mail to fcc.gov">PRA@fcc.gov or contact Judith B. 
Herman at 202-418-0214 or via the Internet at fcc.gov">Judith-B.Herman@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking in WT Docket No. 10-88; RM 11349; FCC 10-53, 
adopted April 12, 2010, and released on April 20, 2010. The full text 
of the NPRM is available for public inspection and copying during 
business hours in the FCC Reference Information Center, Portals II, 445 
12th Street, SW., Room CY-A257, Washington, DC 20554. It also may be 
purchased from the Commission's duplicating contractor at Portals II, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554; the 
contractor's Web site, https://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or e-mail FCC@BCPIWEB.com. Copies of

[[Page 28518]]

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 https://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 Sec.  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 Sec.  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 Sec. Sec.  17.21 through 17.23, the Commission 
first proposes to amend Sec.  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

[[Page 28519]]

or they require special aeronautical study. The Commission proposes to 
instead reference FAA notification requirements. The Commission 
believes that referencing FAA notification requirements will clarify 
which antenna structures must comply with Sec.  17.21. The Commission 
would retain the provision in Sec.  17.21(b) that the Commission may 
modify requirements ``for painting and/or lighting of antenna 
structures when it is shown by the applicant that the absence of such 
marking would not impair the safety of air navigation, or that a lesser 
marking requirement would insure the safety thereof.'' The Commission 
then proposes to delete as unnecessary the first sentence of Sec.  
17.22, which provides: ``Whenever painting or lighting is required, the 
Commission will generally assign specifications in accordance with the 
FAA Advisory Circulars referenced in Section 17.23.'' The Commission 
would redesignate as paragraph 17.21(c) the remainder of current Sec.  
17.22, specifying that ``[i]f an antenna installation is of such a 
nature that its painting and lighting in accordance with these 
specifications are confusing, or endanger rather than assist airmen, or 
are otherwise inadequate, the Commission will specify the type of 
painting and lighting or other marking to be used in the individual 
situation.'' Finally, the Commission would amend Sec.  17.23, as 
discussed above, to replace the reference to specific Advisory 
Circulars with a more general reference to the FAA's determination of 
no hazard and associated study, and to clarify the structure owner's 
obligation to comply with any other specifications prescribed by the 
Commission. The Commission seeks comment on all these proposals.
    9. Finally, the Commission proposes deleting Sec.  17.17(a). The 
Commission's proposed removal of reference to FAA circulars in Sec.  
17.23 would eliminate the need for the stated exception in Sec.  
17.17(a). Moreover, the language in Sec.  17.17(a) has resulted in some 
confusion as to what painting and lighting specifications antenna 
structures authorized prior to July 1, 1996, must maintain. The 
Commission does not make a specific proposal to amend Sec.  17.17(b) in 
this Notice, but the Commission notes that the Commission would need to 
conform Sec.  17.17(b) to any decision regarding PCIA's proposal to 
specify that lighting and marking requirements do not change unless the 
FAA recommends new specifications for particular structures. The 
Commission seeks comment on these proposals.
2. Accuracy of Location and Height Data
    10. Section 17.4(a)(1) provides that alteration of an existing 
antenna structure requires a new registration. However, the 
Commission's rules do not define what constitutes an alteration such 
that a new registration is required. In the ASR Streamlining Order (11 
FCC Rcd at 4287), the Commission determined that any change or 
correction of antenna structure site data of one second or greater in 
longitude or latitude, or one foot or greater in height, requires a new 
aeronautical study and a new determination by the FAA. The Commission 
noted that these criteria are consistent with the FAA's standards for 
when a new notification is required. In order to clarify the 
obligations of antenna structure owners, the Commission proposes adding 
a new section to Sec.  17.4 specifying that any change in height of one 
foot or greater or any change in coordinates of one second or greater 
requires prior approval from the FAA and the Commission. The Commission 
seeks comment on this proposal.
    11. Consistent with this standard, the Commission also seeks 
comment on whether to amend its rules to require that the height 
information provided on FCC Form 854 must be accurate within one foot 
and the coordinates provided in FCC Form 854 must be accurate within 
one second of longitude and latitude. The Commission further seeks 
comment on whether to require that antenna structure owners must use 
the most accurate data available when reporting height information and 
site coordinates, and on whether the Commission should specify a 
particular survey method. In the ASR Streamlining Order, the Commission 
stated that antenna structure owners ``may use surveying tools of 
differing accuracy, such as maps, GPS receivers, or GPS receivers with 
differential corrections to obtain site data.'' Moreover, in the ASR 
Clarification Order (15 FCC Rcd at 8678-8679), the Commission declined 
to mandate a specific accuracy standard for the submission of antenna 
structure data in deference to the FAA. It has been the Commission's 
experience, however, that measurements taken using older survey methods 
may differ significantly from those performed using current GPS 
technology. In light of developments in technology and practice, the 
Commission therefore finds it appropriate to revisit whether the 
Commission should specify accuracy standards or survey methods. The 
Commission asks commenters to address whether the Commission should 
continue to defer to the FAA's expertise, and whether the Commission's 
promulgation of rules would risk creating conflicts with the FAA's 
process. Any comments proposing a specific method should explain that 
method and the benefits of mandating it for new antenna structure 
registrants.
3. Structures Requiring FAA Notification
    12. Section 17.7 of the Commission's rules sets forth which antenna 
structures require notification to the FAA. Section 17.14 of the 
Commission's rules sets forth certain categories of antenna structures 
that are exempt from notification to the FAA. Sections 17.7 and 17.14 
are restatements of FAA rules. Specifically, Sec.  17.7 of the 
Commission's rules is a restatement of Sec.  77.13 of the FAA's rules. 
Section 17.14 of the Commission's rules is a restatement of Sec.  77.15 
of the FAA's rules. These restatements of FAA rules in Commission rules 
appear to be unnecessary and duplicative, and their inclusion risks 
creating confusion in the event the FAA were to change its criteria. 
The Commission therefore proposes to delete Sec. Sec.  17.7 and 17.14 
of the Commission's rules. In lieu of these full restatements of FAA 
rules, the Commission proposes adding cross-references to relevant FAA 
rules in Sec.  17.4 of the Commission's rules, which provides that the 
owner of any proposed or existing antenna structure that requires 
notice of proposed construction to the FAA must register the structure 
with the Commission. The Commission seeks comment on this tentative 
conclusion, and on whether there is any reason the Commission should 
retain language in its own rules stating which antenna structures 
require notification to the FAA.
4. Pending FAA Rulemaking Proceeding
    13. The FAA's current part 77 rules set forth regulations 
pertaining to the physical attributes of objects (including 
communications facilities) that may affect navigable airspace. Under 
these rules, parties proposing to construct or modify a structure must 
file a ``Notice of Proposed Construction or Alteration'' with the FAA. 
The FAA then conducts an obstruction evaluation to determine whether 
the proposed structure will pose a hazard to air navigation. The 
Commission has, in turn, required any antenna structure for which a 
Notice of Proposed Construction or Alteration must be filed with the 
FAA to be registered with the Commission as well. As discussed in more 
detail above, this registration requirement is the vehicle by which the 
Commission exercises its

[[Page 28520]]

authority under the Communications Act to require painting and lighting 
of towers that may constitute a hazard to air navigation.
    14. In a Notice of Proposed Rulemaking released in June, 2006, the 
FAA has proposed to modify its notification rules. Under the FAA's 
proposal, among other things, events that give rise to a notification 
requirement would be expanded to include construction of new facilities 
that operate on specified frequency bands, changes in authorized 
frequency, addition of new frequencies, increases in effective radiated 
power or antenna height above certain thresholds, and changes in 
antenna configuration for communications facilities that operate in 
specified radio frequency bands, independent of the physical attributes 
of such facilities. The Commission seeks comment on how the outcome of 
the FAA's proceeding may affect any of the matters being considered in 
the instant proceeding. In particular, the Commission seeks comment on 
whether, if the FAA were to adopt its proposed rules in whole or in 
part, the Commission should modify any of its rules or change any 
proposed approaches to issues addressed in this proceeding. In this 
regard, one such significant issue is whether the Commission should 
continue to require all instances of ``Notice of Proposed Construction 
or Alteration'' required by the FAA to result in an antenna structure 
registration or amendment of antenna structure registration with the 
Commission.

B. Maintenance of Marking and Lighting

    15. The part 17 rules also detail certain requirements that concern 
the maintenance of the marking and lighting on antenna structures. 
These requirements include inspection and maintenance of lighting, 
records of extinguishment or improper functioning of lights, and 
maintenance of painting. The Commission believes that some of these 
requirements are unnecessarily burdensome to antenna structure owners 
and may be less effective at preventing hazards to air navigation than 
certain alternatives. The Commission also believes that some 
interpretations of these requirements overly complicate its enforcement 
efforts in this important public safety area. Therefore, the Commission 
is proposing several amendments and deletions to streamline and clarify 
these rules.
1. Inspection and Maintenance of Lighting
    16. The basic regime governing inspection and maintenance of 
required lighting is set forth in Sec. Sec.  17.47, 17.48, and 17.56(a) 
of the rules. Section 17.47 of the rules requires antenna structure 
owners to make an observation of the antenna structure's lights at 
least once each 24 hours either visually or by observing an automatic 
properly maintained indicator designed to register any failure of such 
lights or, alternatively, to provide and properly maintain an automatic 
alarm system designed to detect any failure of such lights and to 
provide indication of such failure to the owner. Section 17.47 also 
requires antenna structure owners to inspect at intervals not to exceed 
3 months all automatic or mechanical control devices, indicators, and 
alarm systems associated with the antenna structure lighting to insure 
that such apparatus is functioning properly. Section 17.48(a) of the 
Rules requires immediate notification to the nearest Flight Service 
Station (FSS) or office of the FAA of any observed or otherwise known 
extinguishment or improper functioning of any top steady burning light 
or any flashing obstruction light, regardless of its position on the 
antenna structure, not corrected within 30 minutes. Upon notification 
of such an incident, the FAA issues a Notice to Airmen (NOTAM) to alert 
aircraft of the light outage. Section 17.48(b) of the Rules provides 
that ``[a]n extinguishment or improper functioning of a steady burning 
side intermediate light or lights, shall be corrected as soon as 
possible, but notification to the FAA or [sic] such extinguishment or 
improper functioning is not required.'' Section 17.56(a) of the rules 
requires antenna structure owners to replace or repair lights, 
automatic indicators or automatic control or alarm systems as soon as 
practicable.
    17. In their comments to the 2004 Biennial Review, PCIA, CTIA and 
Cingular argue that quarterly physical inspection of antenna structures 
imposes needless and costly burdens and adds nothing to the reliability 
of the system. Also, the Commission, initially, and later the Wireless 
Telecommunications Bureau on delegated authority, have granted several 
tower owners waivers of Sec.  17.47(b) of the Rules to permit annual 
rather than quarterly inspections for their automatic or mechanical 
control devices, indicators and alarm systems associated with their 
antenna structure lighting, on the basis that they use advanced 
monitoring systems. In its Petition for Rulemaking, PCIA, consistent 
with these waiver requests, recommends amendment of Section 17.47(b) of 
the rules to exempt systems using network operations control (NOC) 
center-based monitoring technologies from any requirement to regularly 
inspect all automatic or mechanical systems associated with antenna 
structure lighting. Sprint Nextel Corporation (Sprint Nextel), 
Cingular, Crown Castle and NAB all support such a rule amendment. In 
comments on a waiver request, Hark Tower Systems, Inc., also supported 
this approach.
    18. The Commission seeks comment on two possible alternative 
changes to Sec.  17.47. First, the Commission seeks comment on whether 
to delete Sec.  17.47 of the rules in its entirety. The Commission is 
concerned that the current regime, which includes separate requirements 
for inspecting lighting systems, providing notice of extinguished 
lights, and replacing malfunctioning lights and monitoring systems, may 
create ambiguity for antenna structure owners regarding their 
regulatory obligations. In particular, an antenna structure owner may 
incorrectly conclude that so long as it performs the inspections 
required under Sec.  17.47, it will not be subject to enforcement 
action if its lights fail to function. Eliminating the inspection 
requirements under Sec.  17.47 would make clear that what matters is 
that the lighting required under the antenna structure registration 
remains on, or, if required lights become extinguished, that the 
structure owner promptly request a NOTAM. If these requirements are not 
met, the Commission may subject the structure owner to enforcement 
action regardless of the measures it followed to inspect its lighting 
and monitoring systems; and if these requirements are met, it would be 
immaterial to us how the structure owner ensured that its lights would 
remain functioning or NOTAMs would be requested. The Commission seeks 
comment on this possible approach, including on whether inspection 
requirements are necessary to ensure responsible monitoring of lighting 
systems.
    19. Second, if the Commission determines not to eliminate all 
inspection requirements, the Commission seeks comment on whether to 
amend Sec.  17.47(b) to exempt certain systems using NOC center-based 
monitoring technologies from the requirement to quarterly inspect all 
automatic or mechanical systems associated with antenna structure 
lighting. As explained in the Commission's order granting waivers to

[[Page 28521]]

American Tower Corporation (ATC) and Global Signal, Inc. (GSI), the 
types of systems used by ATC, GSI, and others reliably diagnose 
problems, including any failures of control devices, indicators and 
alarm systems, within real time. Thus, quarterly inspections of such 
systems may unnecessarily burden antenna structure owners without 
promoting aircraft navigation safety, and relieving inspection 
requirements for such towers may encourage tower owners to adopt state-
of-the-art systems. In granting the ATC and GSI waiver requests, the 
Commission found that the use of advanced technology in those instances 
provided the benefits of more rapid response for lighting failures, 
with attendant aircraft safety benefits. The Commission seeks comment 
on the benefits and drawbacks of eliminating quarterly inspection 
requirements for systems utilizing advanced self-monitoring technology, 
and on whether required regular inspections that are less frequent, 
such as annually, should be retained. The Commission also seeks comment 
as to how the systems to be exempted from the quarterly inspection 
requirement should be defined.
    20. The Commission proposes to retain the requirement in Sec.  
17.48(a) that antenna structure owners promptly report outages of top 
steady burning lights or flashing antenna structure lights to the FAA. 
However, the Commission believes amendment of this provision is 
necessary to ensure that a NOTAM is maintained so long as any outage 
continues. The FAA cancels all such notices within 15 days. However, 
the Commission's rules do not currently require antenna structure 
owners to notify the FAA if repairs to an antenna structure's lights 
require more than 15 days. Therefore, the Commission proposes to 
require antenna structure owners to provide continuously active NOTAM 
notice to the FAA of these lighting outages in accordance with current 
FAA requirements. Accordingly, antenna structure owners would be 
required to contact the FAA to extend the lighting outage date after 15 
days and provide a return to service date. The Commission seeks comment 
on this proposal. The Commission specifically asks commenters to 
discuss how the Commission should balance the public interest benefit 
of having antenna structure owners contact the FAA every 15 days during 
a light outage against the burden on antenna structure owners of 
continual notification requirements. The Commission also notes that the 
reporting requirement of Sec.  17.48(a) requires that the FAA be 
notified ``by telephone or telegraph.'' The Commission tentatively 
concludes that this rule should be updated to require notification by 
means acceptable to the FAA, which currently is by a nationwide toll-
free telephone number for reporting lighting outages, and the 
Commission seeks comment on this proposal.
    21. Finally, the Commission requests comment on whether its rules 
should include time frames for replacing or repairing extinguished 
lights notwithstanding the issuance of a NOTAM, and if so, what those 
time frames should be. The Commission believes that the current 
requirements to replace or repair lights ``as soon as practicable'' (in 
Sec.  17.56(a)) or ``as soon as possible'' (in Sec.  17.48(b)) may be 
overly vague, and may engender confusion as to whether diligent efforts 
to correct lighting malfunctions obviate the need for a NOTAM. 
Accordingly, the Commission tentatively concludes that these provisions 
should be deleted. By proposing to delete these rule sections, however, 
the Commission does not intend to provide antenna structure owners with 
an unlimited amount of time to repair the lighting systems on their 
antenna structures, nor does the Commission suggest that antenna 
structure owners may avoid repairing the lighting systems on their 
antenna structures indefinitely by continually filing for NOTAMs. 
Moreover, because the FAA does not accept notifications or issue NOTAMs 
for extinguished steady burning side intermediate lights, in the 
absence of Section 17.48(b) the Commission's rules would contain no 
requirements relating to maintenance of these lights. The Commission 
therefore seeks comment on whether the Commission should implement a 
time limitation for lighting system repairs. If such a requirement is 
implemented, should it be based on the geographic location of the 
antenna structure? Should weather conditions be considered when 
determining the reasonableness of a time period requirement? The 
Commission seeks comment on these proposals.
2. Elimination of Unnecessary Provisions
    22. Sections 17.45, 17.51, and 17.56(b) each set forth specific 
requirements for antenna structure owners to follow in exhibiting or 
maintaining lights. Section 17.45 of the rules specifies the type of 
temporary warning lights to be used during construction of antenna 
structures for which red obstruction lighting is required. Section 
17.51 of the rules requires red obstruction lighting to be on from 
sunset to sunrise and high intensity and medium intensity lighting to 
burn continuously. Section 17.56(b) requires that the flash tubes in a 
high intensity obstruction lighting system shall be replaced whenever 
the peak effective daytime intensity falls below 200,000 candelas.
    23. The Commission notes that in their 2004 Biennial Review 
comments, PCIA, CTIA and Cingular ask that Sec.  17.51 be amended to 
harmonize it with Section 17.48 (Notification of Extinguishment or 
Improper Functioning Lights). Specifically, PCIA states that Sec.  
17.51 should be revised to provide that a malfunctioning flashing light 
does not violate Sec.  17.51, so long as a NOTAM has been sought by the 
tower owner or operator and issued by the FAA. PCIA also suggests that 
Sec.  17.51 should provide that it is not violated when a malfunction 
is beyond the control of the tower owner/operator (such as in a power 
failure).
    24. The Commission tentatively concludes that each of these 
provisions should be deleted because the relevant requirements are 
specified in the FAA determination of no hazard and associated study 
for each tower, and the separate identification of specific 
requirements in the Commission's rules is therefore unnecessary and may 
create ambiguity in cases of conflict. Any antenna structure which is 
assigned specifications by the FAA for lighting is also assigned 
Chapter 4 (Lighting Guideline) of FAA Advisory Circular AC 70/7460-1. 
This chapter details the type of construction lights, both red and 
white, that should be used during construction. Chapter 4 also details 
requirements for the inspection, repair and maintenance of lights. Any 
antenna structure which is assigned red obstruction, high intensity or 
medium intensity lighting by the FAA is also assigned the applicable 
chapter (Chapter 5, 6 or 7) of the same FAA Advisory Circular (AC 70/
7460-1) on its antenna structure registration. The Commission therefore 
proposes to delete each of these rule provisions in order to promote 
clarity and avoid potential conflicts. The Commission seeks comment on 
this tentative conclusion, and in particular on whether there are any 
instances in which the FAA would not assign the relevant specifications 
in its Advisory Circular.
    25. The Commission does not agree with the commenters' position 
that its lighting requirements should include an exception where lights 
are extinguished due to loss of power beyond the structure owner's 
control. As discussed above, the Commission is proposing amending Sec.  
17.48 to clearly state the basic requirement to maintain the required 
lighting or, if lights become

[[Page 28522]]

extinguished, obtain and maintain a NOTAM. Thus, if lights become 
extinguished due to loss of power, the structure owner will remain in 
compliance with the rules if it immediately notifies the FAA and renews 
the notification every 15 days. The Commission does not believe it is 
either necessary or consistent with aircraft navigation safety to 
exempt outages due to loss of power from this process. Moreover, the 
Commission is not persuaded that the effects of power outages are 
beyond the control of antenna structure owners, or beyond their ability 
to remedy. The Commission seeks comment above on whether the Commission 
should establish time limits for repair or replacement of extinguished 
lights. Any rules that the Commission might adopt setting such time 
limits would apply to lights that are off due to a power outage. The 
Commission seeks comment on this analysis.
3. Records of Extinguishment or Improper Functioning of Lights
    26. Section 17.49 requires antenna structure owners to maintain a 
record of observed or otherwise known extinguishments or improper 
functioning of structure lights. The Commission proposes to amend this 
provision by adding a requirement to maintain such records for two 
years and provide the records to the Commission upon request. The 
Commission tentatively concludes that this retention period best 
balances the Commission's need to determine the compliance record 
against the burden of record retention on antenna structure owners. The 
Commission seeks comment on this tentative conclusion, and in 
particular on whether two years is the appropriate retention period. 
The Commission encourages commenters to provide data regarding the 
burden this record retention would impose on antenna structure owners, 
and the Commission invites comment on whether the Commission should 
eliminate the recordkeeping requirement entirely.
4. Maintenance of Painting
    27. Section 17.50 of the rules specifies that antenna structures 
requiring painting under part 17 shall be cleaned or repainted as often 
as necessary to maintain good visibility. In their 2004 Biennial Review 
Comments, PCIA, CTIA and Cingular argue that the Commission needs an 
unambiguous standard for measuring good visibility, and suggest that 
the rule be amended to reflect the standard used by the FAA. In 
particular, PCIA proposes that the Commission amend Sec.  17.50 to 
require that the ``paint on the structure must be within the color 
tolerance depicted on the FAA's `In Service Aviation Orange Tolerance 
Chart' as measured against the base of the tower from a distance of 
one-quarter mile.'' Cingular states that the current lack of a standard 
for ``good visibility'' ``leads to the potential for inconsistent 
enforcement.''
    28. The Commission requests comment on whether to amend Sec.  17.50 
to specifically provide for use of the FAA's `In Service Aviation 
Orange Tolerance Chart' to determine whether a structure needs to be 
cleaned or repainted. In the field, the Commission's Enforcement Bureau 
currently determines whether a structure needs to be cleaned or 
repainted by comparing it to the FAA's In Service Aviation Orange 
Tolerance Chart at the base of the structure and/or by observing the 
structure at one-quarter mile distance from the structure. The 
Commission believes that each of these approaches has certain benefits. 
On one hand, a close inspection of the tower may provide more 
information about the condition of the paint (e.g., whether it is 
flaking) and about the actual color and how closely it matches the 
required parameters. On the other hand, a view from one-quarter mile 
distance, although subjective, may closely approximate tower visibility 
and conspicuity that pilots would encounter and therefore may better 
ensure that towers are visible. However, a view from a distance may be 
subject to inconsistencies depending upon such factors as direction, 
time of day, weather conditions, and silhouetting. Adding a specific 
reference to the color chart in Sec.  17.50 could provide a more 
objective standard for gauging the condition of required painting and 
may provide better guidance for antenna structure owners and promote 
consistent enforcement. The Commission therefore seeks comment on 
whether to incorporate such a reference.
    29. If the Commission does amend the rules to defer to the In 
Service Aviation Orange Tolerance Chart, the Commission further seeks 
comment on whether to compare the FAA's In Service Aviation Orange 
Tolerance Chart to the tower at a distance of one-quarter mile, as PCIA 
proposes, or at the base of the tower, as is the Enforcement Bureau's 
practice. The instructions on the FAA chart direct that ``to use the 
charts place each directly over the surface to be examined.'' However, 
a more distant view may be most consistent with the FAA's Advisory 
Circular on Obstruction Marking and Lighting, which indicates that 
``the color should be sampled on the upper half of the structure, since 
weathering is greater there.'' The Commission seeks comment on which of 
these methods of using the chart, or both or neither, should be 
referenced in the rule. The Commission also seeks comment on whether, 
and if so how, the rule should combine use of the chart with other 
methods of gauging visibility, as well as any other suggestions on how 
the rule should be drafted.

C. Other Matters

1. Definitions
    30. Section 17.2(a) of the rules defines an ``antenna structure'' 
as including ``the radiating and/or receive system, its supporting 
structures and any appurtenances mounted thereon.'' Section 17.2(c) 
defines an ``antenna structure owner'' as the individual or entity 
vested with ownership, equitable ownership, dominion, or title to the 
antenna structure. Commenters argue that because the definition of 
``antenna structure'' includes antennas and other appurtenances, the 
definition of ``antenna structure owner'' could be read to include the 
service providers who own these antennas. Commenters therefore urge the 
Commission to amend its rules to clarify that the obligations of 
antenna structure owners fall only on the owner of the underlying 
structure. Specifically, in their comments to the 2004 Biennial Review, 
PCIA, CTIA and Cingular urge the Commission to revise the definition of 
antenna structure so that compliance obligations of infrastructure 
providers and licensed carriers are not ambiguous. PCIA and Cingular 
both argue that the definition needs to be revised to reinforce 
Commission decisions that the antenna structure owner is responsible 
for marking, lighting and notification responsibilities relating to the 
structure.
    31. The Commission has previously made clear that registration 
responsibilities fall squarely on the antenna structure owners, and not 
on the licensees or permittees that are merely tenants of the 
structures. Nonetheless, the Commission agrees that incorporating a 
more precise definition into its rules would promote clarity for all 
parties. The Commission therefore proposes amending Sec.  17.2(c) to 
provide that the antenna structure owner is the owner of ``the 
underlying structure that supports or is intended to support antennas 
and other appurtenances.'' The Commission seeks comment on this 
proposal, including any unintended consequences that may result from 
this change.
    32. The Commission also tentatively concludes that Sec.  17.2(a) 
should be

[[Page 28523]]

amended to clarify both when a structure becomes, and when a structure 
ceases to be, an ``antenna structure'' under its rules. Section 303(q) 
of the Act provides that ``[i]n the event that the tower ceases to be 
licensed by the Commission for the transmission of radio energy, the 
owner of the tower shall maintain the prescribed painting and/or 
illumination of such tower until it is dismantled . * * *'' Consistent 
with this provision, the Commission proposes amending Sec.  17.2(a) to 
provide that a structure will continue to be considered an antenna 
structure and subject to its part 17 requirements until such time as 
that structure is dismantled, regardless of whether the structure 
continues to be used for the transmission and/or receipt of radio 
energy. Similarly, the Commission believes it is consistent with the 
intent of Sec.  303(q) that a structure constructed for the primary 
purpose of transmitting or receiving radio energy be treated as an 
antenna structure subject to its rules from the time construction 
begins, regardless of whether the structure immediately is being used 
for its intended purpose. The Commission therefore proposes amending 
Sec.  17.2(a) to reflect this tentative conclusion as well. The 
Commission seeks comment on these proposals. Finally, the Commission 
notes that the term ``antenna structure'' is defined in both Sec. Sec.  
1.907 and 17.2(a) of the Commission's rules. The Commission seeks 
comment on whether these two definitions should be harmonized.
2. Structures Not Requiring Registration
    33. Under the Commission's rules, not all antenna structures must 
be registered with the Commission, only those of certain heights, 
depending on their location. Despite this limitation, some antenna 
structure owners have voluntarily registered their structures with the 
Commission, even though such registration is not required. The 
Commission seeks comment on whether the rules concerning antenna 
structures should be enforced against such voluntarily registered 
structures. In addition, the Commission seeks comment on whether owners 
of antenna structures that do not require registration should be 
prohibited from registering their towers, and whether antenna structure 
owners who have voluntarily registered structures should be required to 
withdraw their registrations from the Commission's antenna structure 
database. Such an action could reduce confusion concerning the 
regulatory status of these structures. The Commission seeks comment on 
both the benefits and drawbacks to the Commission and the public of 
keeping voluntarily registered structures in the database, as well as 
of permitting additional structures to be voluntarily registered. In 
this regard, the Commission notes that antenna structure owners often 
register structures that fall below the Commission's height thresholds 
in order to file an Environmental Assessment and obtain a Finding Of No 
Significant Impact under the Commission's environmental rules. The 
Commission invites comment regarding what changes to its environmental 
processing may be necessary if antenna structure registration under 
these circumstances were to be limited.
3. Posting of Antenna Structure Registration Number
    34. Section 17.4(g) provides: ``Except as provided in paragraph (h) 
of this section, the Antenna Structure Registration [ASR] number must 
be displayed in a conspicuous place so that it is readily visible near 
the base of the antenna structure.'' In its Petition for Rulemaking, 
PCIA contends that it is not always possible to post the ASR number so 
that it is both ``readily visible'' and ``near the base'' of the tower. 
PCIA and Cingular both comment that the Commission's ``Posting 
Guidelines'' indicate that in such instances an appropriate place to 
post the ASR number is ``along a perimeter fence'' or ``at the point of 
entry of the gate.'' PCIA recommends amendment of the rule to expressly 
permit posting of the ASR number at a compound fence or gate. Sprint 
Nextel, Crown Castle, NAB and Cingular concur.
    35. The purpose of Sec.  17.4(g) is to ensure that a member of the 
general public can identify the structure in the event of a light 
outage or other air safety hazard and report the problem to the 
Commission and/or the FAA, as well as to ensure that FCC and FAA 
personnel can readily identify the structure. As currently written, 
however, the rule does not require that the ASR number be posted in a 
place that would be visible to the general public. The Commission 
therefore proposes to modify Sec.  17.4 to require that antenna 
structure owners display the ASR number so that it would be visible to 
a member of the general public who reaches the closest publicly 
accessible location near the base of the antenna structure. Where two 
or more separate locations of this nature exist for a single antenna 
structure, such as two roads from different directions to a mountaintop 
site, the Commission would require posting the Antenna Structure 
Registration number at each such location. The Commission tentatively 
concludes that amending the rule in this manner would both clarify the 
obligations of antenna structure owners and promote timely remediation 
when lighting is observed to be malfunctioning or extinguished. The 
Commission further tentatively concludes that it is unnecessary for the 
ASR number to be posted both at the base of the tower and at a point 
that is visible to the general public. The Commission seeks comment on 
these tentative conclusions, including whether there would be benefits 
to requiring an additional posting of the ASR number near the base of 
the tower where that location is not readily visible to the public. The 
Commission also seeks comment on how the rule should address those 
situations where two towers having separate ASR numbers may be located 
within a single fenced area, as well as situations in which an antenna 
structure is located on a building.
4. Provision of Antenna Structure Registration to Tenants
    36. Section 17.4(f) requires that antenna structure owners 
immediately provide copies of FCC Form 854R (antenna structure 
registration) to each tenant licensee and permittee. In their Biennial 
Review comments, PCIA, CTIA and Cingular propose that the Commission 
eliminate this requirement altogether, and shift the burden to the 
Commission's licensees and permittees to obtain a copy of the Form 854R 
from the Commission's Web site. In its Petition for Rulemaking, PCIA 
specifically recommends that the rule should instead require antenna 
structure owners to provide tenants with the ASR number or some 
indication that the ASR has been changed or updated, so that licensees 
and permittees may obtain relevant Form 845R (antenna structure 
registration) information from the FCC's ASR Online System. Sprint 
Nextel, Cingular, Crown Castle and NAB agree, arguing that the 
requirement to provide paper copies no longer serves any practical 
purpose and imposes unnecessary costs.
    37. The Commission agrees that antenna structure owners should no 
longer be required to provide paper copies of the Form 854R to their 
tenants, as the relevant information and access to the form can 
ordinarily be provided at least as effectively, and more economically, 
by electronic means. However, the Commission believes it is essential 
that the tenant licensees and permittees know when the antenna 
structure has been registered, and how to access the registration form. 
The

[[Page 28524]]

Commission therefore proposes to amend the relevant rules to allow 
antenna structure owners, as an alternative to providing a copy of Form 
854R, to notify tenant licensees and permittees that the structure has 
been registered, and give the tenant licensees and permittees the 
antenna structure's registration number along with the link for the 
Commission's antenna structure registration Web site. This notification 
may be done using paper mail or electronic mail. The Commission seeks 
comment on this proposal.
5. Notification of Construction or Dismantlement
    38. Section 17.57 requires that antenna structure owners notify the 
Commission within 24 hours of construction or dismantlement of an 
antenna structure, and immediately for changes in height or ownership. 
In its Biennial Review comments, PCIA recommends changing Sec.  17.57 
to harmonize the timing for these requirements with FAA rules. In its 
Petition for Rulemaking, PCIA indicates specifically that its proposal 
in this regard would be to change from 24 hours to five days the time 
for notification of construction or dismantlement, and to change from 
``immediately'' to five days the time for notification of changes in 
height or ownership. Cingular and NAB support the concept of 
harmonization of the Commission's rules with FAA rules regarding 
notification of construction and/or dismantlement.
    39. The Commission tentatively concludes that the Commission should 
not adopt these proposed changes. Initially, the Commission notes that 
neither PCIA nor Cingular cites the relevant FAA requirements or 
explains why they are appropriate for the Commission's purposes. In any 
event, these FCC notification requirements promote accuracy of the 
Commission's information, and it would not appear to create any 
conflict for them to be stricter than the FAA's. Given the simple 
nature of notification filings, commenters have not shown that the time 
frames are unreasonably burdensome. The Commission seeks comment on 
this issue, including discussion of any burdens that the existing rule 
may impose.
6. Facilities on Federal Land
    40. Section 17.58 of the Commission's rules provides that any 
application proposing new or modified transmitting facilities to be 
located on land under the jurisdiction of the U.S. Forest Service or 
the Bureau of Land Management shall include a statement that the 
facilities will be so located, and that the applicant shall comply with 
the requirements of Sec.  1.70 of the rules. This rule was adopted in 
1967, along with former Sec.  1.70, which prescribed procedures for 
handling applications involving the use of certain lands and 
reservations under the jurisdiction of the U.S. Government. Those 
procedures were abolished in 1977 at the request of the Department of 
Agriculture and the Department of the Interior, at which point that 
iteration of Sec.  1.70 was deleted. As Sec.  17.58 was intended to 
promote compliance with procedures that no longer exist, the Commission 
now proposes to delete Sec.  17.58. The Commission seeks comment on 
this proposal, including whether there is any reason to retain a 
requirement that the Commission be notified of facilities on Forest 
Service or Bureau of Land Management lands.

III. Conclusion

    41. By this NPRM, the Commission proposes various clarifications 
and amendments to the part 17 rules, in order to allow antenna 
structure owners to more efficiently and cost effectively ensure their 
compliance with those rules. The Commission seeks comment on these 
proposals.

IV. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    42. As required by the Regulatory Flexibility Act of 1980, see 5 
U.S.C. 603, as amended (RFA), the Commission has prepared this present 
Initial Regulatory Flexibility Analysis (IRFA) of the possible 
significant economic impact on a substantial number of small entities 
by the policies and rules proposed in this Notice of Proposed Rule 
Making (NPRM). Written public comments are requested on this IRFA. 
Comments must be specifically identified as responses to the IRFA and 
must be filed by the deadlines for comments on the Notice provided in 
Section V.A. of the item. The Commission will send a copy of the NPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). In addition, the NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.
1. Need for and Objectives of the Proposed Rules
    43. Section 303(q) of the Communications Act vests in the 
Commission the authority to require painting and/or lighting of radio 
towers that may constitute a hazard to air navigation. Part 17 of the 
Commission's rules sets forth procedures for identifying those antenna 
structures that might affect air navigation, consistent with 
recommendations made by the Federal Aviation Administration (FAA), and 
for registering such structures with the Commission. The Commission 
requires owners of antenna structures to register with the Commission 
those structures that meet the registration criteria and to exercise 
primary responsibility for the prescribed painting and lighting. The 
proposed rules seek to achieve the best framework to continue to 
fulfill the Commission's statutory responsibility to require antenna 
structure owners, registrants and Commission licensees to do whatever 
is necessary to prevent antenna structures from being hazards or 
menaces to air navigation.
    44. The Commission proposes to amend Sec.  17.4(a) and Sec. Sec.  
17.21, 17.22 (redesignated as Sec.  17.21(c)), and 17.23 and to delete 
Sec.  17.17(a) of the Commission's rules regarding antenna structure 
registration and painting and lighting specifications. The Commission 
also proposes conforming edits to Sec. Sec.  1.61(a)(5) and 17.1(b). 
These proposed changes are intended to clarify the relationship between 
the Commission's rules and procedures and those of the FAA and to 
ensure continued consistency in those rules and procedures. The 
Commission also asks whether to amend Sec.  17.17(b) (redesignated as 
Sec.  17.24) by providing that a revised FAA Circular does not impose 
new obligations on already-approved antenna structures.
    45. In order to clarify the obligations of antenna structure owners 
and to conform the Commission's regulations to Commission and FAA 
practice, the Commission proposes adding new sections to Sec.  17.4 
specifying that any change in height of one foot or greater, any change 
in coordinates of one second or greater, or any change in marking and 
lighting specifications requires prior approval from the FAA and the 
Commission. The Commission also proposes to consider whether to specify 
accuracy standards or survey methods in order to ensure consistency of 
data.
    46. The Commission proposes to delete Sec. Sec.  17.7 and 17.14 of 
the Commission's rules, which are restatements of FAA rules, and to 
substitute cross-references to relevant FAA rules in Sec.  17.4 of the 
Commission's rules. This change could reduce the risk of confusion in 
the event the FAA were to change its criteria.
    47. The Commission proposes to amend its rules governing inspection 
and maintenance of lighting by: (1) Amending Sec.  17.47 to eliminate 
or reduce requirements to perform

[[Page 28525]]

inspections of lighting and light monitoring systems; (2) amending 
Sec.  17.48(a) to require antenna structure owners to provide 
continuously active notice to the FAA of lighting outages; and (3) 
deleting vague references to timely repair timeframes in Sec. Sec.  
17.48(b) and 17.56(a). The Commission proposes to consider whether to 
eliminate Sec.  17.47 in its entirety or to retain modified inspection 
requirements and whether to substitute more specific repair time 
limitations. These proposals are intended to relieve unnecessary 
burdens and reduce confusion while ensuring that aircraft navigation 
safety is best protected.
    48. The Commission proposes to delete Sec. Sec.  17.45, 17.51, and 
17.56(b), which set forth specific requirements for exhibiting and 
maintaining lights, because they are unnecessary and may create 
ambiguity in cases of conflict with FAA specifications. This change 
could reduce the risk of confusion.
    49. Section 17.49 requires antenna structure owners to maintain a 
record of observed or otherwise known extinguishments or improper 
functioning of structure lights. The Commission proposes to add a 
requirement to maintain such records for two years and provide the 
records to the Commission upon request in order to balance the 
Commission's need to determine the compliance record against the burden 
of record retention on antenna structure owners.
    50. The Commission is considering a proposal to amend Sec.  17.50 
to require use of the FAA's `In Service Aviation Orange Tolerance 
Chart' to determine whether a structure needs to be cleaned or 
repainted and to specify how the chart is to be used. These changes may 
provide more objective standards for gauging visibility.
    51. The Commission proposes to amend Sec.  17.2(a) of the 
Commission's rules to clarify both when a structure becomes, and when a 
structure ceases to be, an ``antenna structure'' under our rules. The 
Commission also proposes to amend Sec.  17.2(c) of the Commission's 
rules to clarify that the obligations of an ``antenna structure owner'' 
fall only on the owner of the underlying structure, and not on tenants, 
thus promoting clarity for all parties.
    52. The Commission also proposes to consider whether the rules 
concerning antenna structures should be enforced against voluntarily 
registered structures, whether owners of antenna structures that do not 
require registration should be prohibited from registering their 
towers, and whether antenna structure owners who have voluntarily 
registered structures should be required to withdraw their 
registrations from the Commission's antenna structure database. Such 
action could reduce confusion by clarifying the regulatory status of 
these structures.
    53. The Commission proposes to modify Sec.  17.4(g) to require that 
antenna structure owners display the Antenna Structure Registration 
(ASR) number so that it would be visible to a member of the general 
public who reaches the closest publicly accessible location near each 
point of access to the antenna structure. The Commission further 
proposes to delete the requirement that the ASR number be posted near 
the base of the antenna structure. The Commission tentatively concludes 
that amending the rule in this manner would clarify the obligations of 
antenna structure owners, promote timely remediation when lighting is 
observed to be malfunctioning or extinguished, and eliminate 
unnecessary postings.
    54. Section 17.4(f) requires that antenna structure owners 
immediately provide copies of FCC Form 854R (antenna structure 
registration) to each tenant licensee and permittee. Sections 17.4(e) 
and 17.6(c) impose a similar requirement on the first licensee in cases 
where the antenna structure owner is unable to file Form 854 because it 
is subject to a denial of Federal benefits under the Anti-Drug Abuse 
Act of 1988. The Commission proposes to amend these rules to allow the 
alternative of providing a link to the Commission's antenna structure 
registration Web site via paper or electronic mail.
    55. The Commission proposes to delete Sec.  17.58, which was 
intended to promote compliance with procedures that are now obsolete. 
This change would streamline the antenna structure registration 
process.
2. Legal Basis
    56. The legal basis for any action that may be taken pursuant to 
the Notice is contained in Sections 4(i), 4(j), 11, and 303(q) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i) through (j), 
161, 303(q).
3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules May Apply
    57. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by proposed rules.\1\ The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \2\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\3\ A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (``SBA'').\4\
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    \1\ 5 U.S.C. 604(a)(3).
    \2\ 5 U.S.C. 601(6).
    \3\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \4\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    58. The Notice proposes rule changes that would impose requirements 
on a large number of entities relating to the registration of and 
maintenance of painting and lighting on antenna structures. Due to the 
number and diversity of owners of antenna structures and other 
responsible parties, including small entities that are Commission 
licensees as well as non-licensee tower companies, the Commission 
classifies and quantifies them in the remainder of this section.
    59. Cellular Licensees. The SBA has developed a small business size 
standard for small businesses in the category ``Wireless 
Telecommunications Carriers (except satellite).'' \5\ Under that SBA 
category, a business is small if it has 1,500 or fewer employees.\6\ 
The census category of ``Cellular and Other Wireless 
Telecommunications'' is no longer used and has been superseded by the 
larger category ``Wireless Telecommunications Carriers (except 
satellite)''. However, since currently available data was gathered when 
``Cellular and Other Wireless Telecommunications'' was the relevant 
category, earlier Census Bureau data collected under the category of 
``Cellular and Other Wireless Telecommunications'' will be used here. 
Census Bureau data for 2002 show that there were 1,397 firms in this 
category that operated for the entire year.\7\ Of this total, 1,378 
firms had employment of 999 or fewer employees, and 19 firms had 
employment of 1,000 employees or

[[Page 28526]]

more.\8\ Thus, under this category and size standard, the majority of 
firms can be considered small.
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    \5\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517210.
    \6\  Id.
    \7\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size