Legal Considerations for Telecommunications at Airports (2021)

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22 ACRP LRD 43 V. ANTENNAS A. Siting and Collocation Requests Entities seeking to construct a new tower or collocate equip- ment on an existing tower must seek site approval from state or local authorities and comply with FCC NEPA requirements. Additionally, based on the tower or antenna height and location, the entity may have to seek FAA authorization and register with the FCC. Collocation may require the same processes, authori- zations, and registrations. 1. State and Local Airport operators may have to consider siting and colloca- tion requests as a regulator or an entity seeking to deploy equip- ment. Airports that operate as part of a state or local government may approve siting requests, or an airport may be consulted by the appropriate state or local office depending on the govern- ment structures and authority. Similarly, an independent airport authority may have its own approval authority that must comply with state or local rules and regulations. Alternatively, an airport may have an interest to deploy equipment as an operator. For example, some airports deploy DAS. These airports will need to comply with state and local regulations and consider how approvals for their deployments may affect third-party applica- tions at their airports. The Communications Act of 1934 preserves state and local zoning and land use authority for personal use wireless service facilities with some limitations. State and local governments may not unreasonably discriminate among providers or func- tionally equivalent services, may not prohibit personal wireless service, must act on applications within a reasonable period of time, and application denials must be written with substantial evidence. Finally, state and local authorities cannot directly or indirectly deny an application based on environmental effects of radio transmission where the provider complies with FCC rules. 177 Legislation, regulation, and case law have further restricted state and local authorities’ ability to approve or deny siting requests. Some state and local authorities continue to voice oppo sition to these restrictions on state and local power.178 Ap- proving authorities must consider the applicable fees, aesthetic requirements, “shot clock” time limitations for application re- views, restric tions placed on application denials, exclusivity in contracts, and the courts interpretations of these rules and regulations. a. Small Cell Deployment and Annual Fees The FCC introduced new restrictions on fees applicable to the deployment of 5G small cells in 2018, arguing that excessive 177 47 U.S.C. § 332(c)(7). 178 See, City of Portland, 969 F.3d at 1032; Press Release Counties, National League of Cities, Cities Voice Concern Over FCC’s Small Cell Ruling (September 26, 2018), https://www.nlc.org/post/2018/09/26/ counties-cities-voice-concern-over-fccs-small-cell-ruling/ (last visited October 5, 2020); Mobile 5G and Small Cell 2021 Legislation. does not expressly exempt the FAA tests from radio and sat- ellite communication interference or jamming prohibitions.172 The NTIA will determine whether the FAA is authorized to use spectrum to conduct C-UAS testing and the FAA will need to coordinate with the FCC regarding potential interference or jamming concerns. Congress further instructed the FAA to develop a plan for certifying, permitting, and authorizing UAS detection and mitigation technologies and systems for use by the FAA.173 The FAA released a solicitation in the fall of 2020 for airport operators to host FAA tests of drone detection and mitigation systems.174 The FAA issued an addendum to the initial pro posal noting that the FAA and the UAS detection and mitigation com- panies will be responsible for operational permissions from the agencies of concern, including the FCC, to maintain compli- ance with federal law.175 A subsequent question sub mitted to the FAA specifically asks whether the airport operator will be re- quired to get operational permissions from the agencies of con- cern, including the FCC, to maintain compliance with federal law. The FAA pointed back to its first addendum in response to the question, saying “the FAA and UAS detection and miti- gation technology vendor will be responsible for operational permissions.”176 It is not clear whether the FAA has authori- zation to test active defense technologies that jam radio or sat- ellite communications during its tests. The manner in which FAA is authorized to test particular UAS detection and mitiga- tion technologies, including active defense technologies, will be deter mined in coordination with the FCC and other potentially impacted federal agencies. The FAA will have to meet all licens- ing requirements in support of the UAS Detection and Mitiga- tion Research Program Airport operators must understand the operational func- tions of any drone detection or mitigation technology they use or consider using. Any system that interferes with radio or satellite communication may be subject to federal criminal or administrative action for interfering with radio or satellite com- munications. 172 Section 44810 of title 49 does reference other applicable laws that do not apply to the FAA tests, such as the Aircraft Sabotage Act, Computer Fraud and Abuse Act of 1986, the Wiretap Act, and the Pen/Trap Statute. The lack of reference to wire, electronic, or radio communication or specific references to 47 U.S.C. §§ 302a(b) and 333 present a question of Congressional intent related to active UAS defense systems that interfere with or jam telecommunication signals. 173 Id. 174 See Solicitation for Airport Operators Interest in Hosting Federal Aviation Administration’s (FAA) Airport Unmanned Aircraft System(s) (UAS) Detection and Mitigation Research Program; Solicitation Number: 692M15-20-R-00028. 175 OMB Control No. 2120-0595 Amendment of Solicitation 0001. 176 OMB Control No. 2120-0595 Amendment of Solicitation 0002.

ACRP LRD 43 23 and 60 days for collocation applications. Airport stake holders ex- pressed opposition to the initial 2008 CTIA – The Wireless Asso- ciation petition requesting that the FCC restrict state and local reviewing periods, ability to impose barriers to entry, and proce- dural requirements. The comments argued against the reviewing periods because airports need to coordinate these decisions with state and local authorities.190 The FCC did not directly respond to airport specific concerns in finalizing the rule. If a state or local government fails to act, the FCC stated that an applicant can bring action in court within 30 days to seek redress. This is known as the “shot clock.” The state or locality will have to argue the extended timeframe to review the applica- tion is reasonable given the nature and scope of the application at issue. If the state or local government does not rebut this pre- sumption, then the presiding court will decide an appropriate remedy. The FCC noted that a failure to decide within a reason- able timeframe does not require the court to grant the applica- tion and enter an injunction. The shot clock begins from the time the application is sub- mitted and may only toll when written notice of incompleteness is provided.191 An incomplete siting or collocation application tolls by mutual agreement or where the state or local authorities provide notice of incompleteness to applicants within 30 days of the initial submissions.192 The written notice of incompleteness must specify the missing information. The information deemed missing must reasonably relate to the collocation or application requirements. The written notice “must specify the code, provi- sion, ordinance, application instruction, or otherwise publicly- stated procedures that require information to be submitted.”193 The clock begins running again when entities submit the infor- mation, but state and local authorities have ten days to notify entities that the information is still incomplete to continue to toll the clock.194 If the state or local authority does not provide notice within ten days the clock may not toll again. Finally, state or local moratoriums may not affect the shot clock.195 190 See Comments to the 2008 CTIA – The Wireless Association petition: Airports Council International – North America, https:// www.fcc.gov/ecfs/filing/5515322104 (last visited August 5, 2020); Aviation Council of Alabama Inc, https://www.fcc.gov/ecfs/ filing/5515321096 (last visited August 5, 2020); Florida Airports Council, https://www.fcc.gov/ecfs/filing/5515215383 (last visited August 5, 2020); Missouri State Aviation Council, https://www.fcc. gov/ecfs/filing/5515318097 (last visited August 5, 2020); National Agricultural Aviation Association, https://www.fcc.gov/ecfs/ filing/5515322670 (last visited August 5, 2020); National Association of State Aviation Officials, https://www.fcc.gov/ecfs/filing/5515318037 (last visited August 5, 2020); and North Carolina Department of Transportation’s Division of Aviation, https://www.fcc.gov/ecfs/ filing/5515215916 (last visited August 5, 2020). 191 In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 F.C.C. Rcd. 12865, ¶ 258 (2014) [hereinafter Accelerating Broadband Deployment Report and Order 2014]. 192 Id. 193 Id. at ¶ 260. 194 Id. at ¶¶ 217 and 219. 195 Id. at 219. fees prohibit nationwide deployment of the technology.179 Any fees must be a reasonable approximation of the government’s costs, based on objectively reasonable costs, and “no higher than the fees charged to similarly-situated competitors in simi- lar situations.”180 The FCC included a provision that presumes the fee is valid if under $500 for an application, and under $270 annually.181 Any application or annual fee above these values must justify why the government’s costs exceed the threshold.182 b. Aesthetic Requirements State and local governments have authority to review siting applications for aesthetics. Federal law preempts aesthetic re- quirements that unreasonably discriminate among functionally equivalent providers.183 The FCC altered this preemption in 2018 for small cell deployments, requiring that aesthetic requirements be “(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.”184 The FCC defines permissible re- quirements as reasonable where they are “technically feasible and reasonably directed to avoiding or remedying the intangible public harm or unsightly or out-of-character deployments.”185 An August 2020 decision, City of Portland v. U.S., took issue with the FCC’s aesthetic standard. The court vacated the “no more burdensome” requirement because it required a com- parison to any infrastructure deployments, not just function- ally equivalent providers as defined by Congress in 47 U.S.C. § 332.186 The court also took issue with the objective require- ment, finding that there is a level of discretion involved in re- viewing a zoning permit application and holding the objective requirement is arbitrary and capricious.187 c. Shot Clocks State and local authorities have 90 days to review collocation applications and 150 days to review siting applications other than collocation.188 The FCC further reduced that timeline for small cell deployments and collocation applications in 2018.189 State and localities have 90 days to approve or deny small cell structures 179 In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C. Rcd. 9088 (2018) [hereinafter Accelerating Wireless Broadband Deployment Declaratory Ruling]. 180 Accelerating Wireless Broadband Deployment Declaratory Ruling, at ¶ 50. 181 Id. at ¶ 79. 182 Id at. ¶ 80. 183 47 U.S.C. § 332(c)(7)(B)(i)(I). 184 Accelerating Wireless Broadband Deployment Declaratory Ruling, at ¶ 86. 185 Id. at ¶ 87. 186 City of Portland, 969 F.3d at 1041 (9th Cir. 2020). 187 Id. at 1042. 188 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd. 13994 (2009). 189 Accelerating Wireless Broadband Deployment Declaratory Ruling.

24 ACRP LRD 43 portation argued the presence of another carrier is a valid con- cern for localities because an additional antenna site would have a negative effect on airports by increasing potential air naviga- tion obstructions.204 In disagreeing with the rule’s negative effect on aviation, the FCC cited the FAA’s comment that any FCC “action on this Petition does not alter or amend the FAA’s regu- latory requirements and process” to require notice of structures that may affect aeronautical operations and facilities.205 The airports also argued that carrier competition should not drive decisions to allow more antennas or frequencies to operate on or near airports. The FCC did not accommodate or acknowl- edge the comment in its ruling. The FAA’s comment to the 2008 CTIA – The Wireless Asso- ciation petition states that the agency waives review of any wireless entity communication service siting application that is collocated on a structure previously studied by the FAA pur- suant to a November 2007 Federal Register Notice. The FAA also commented that “favorable action by FCC on this petition does not in any manner affect or alter an airport’s responsibil- ity and compliance pursuant to 49 U.S.C. §47101 et seq. and in particular its airport grant assurances under the AIP and PFC programs.”206 e. Causes of Action A party subject to a state or local authority siting or colloca- tion denial or a failure to act has a right of action within thirty days.207 State or local authorities must provide written applica- tion denials in a timely manner with substantial evidence sup- porting the decision.208 Courts must have sufficient information in the record to determine the reason for the application denial and ensure the decision does not exceed local authority.209 The deciding authority does not have to include a reason for denial in the denial letter if another writing is “issued essentially contemporaneously” with the denial.210 For example, a letter identifying the reason for the denial and a transcript of the plan- ning commission meeting released six days later may meet the requirements that a denial be supported by substantial evidence 204 See North Carolina Department of Transportation’s Division of Aviation Comments to the 2008 CTIA – The Wireless Association petition, https://www.fcc.gov/ecfs/filing/5515215916 (last visited August 5, 2020). 205 Timely Siting Declaratory Ruling, at ¶ 63 (discussing FAA Comments). 206 FAA comments to the 2008 CTIA – The Wireless Association petition, https://www.fcc.gov/ecfs/filing/5515319991 (last visited August 5, 2020). 207 Timely Siting Declaratory Ruling, at ¶ 27; 47 U.S.C. § 332(c)(7) (B)(v). 208 47 U.S.C. § 332(c)(7)(B)(v). 209 T-Mobile South, LLC v. City of Roswell, 574 U.S. 293, 814 (2016) (noting the limitations that 47 U.S.C. §332 places on state and local authorities: preventing “discriminat[ion] among providers of functionally equivalent services” and decision based on environmental effects of frequency emissions, and requiring action on applications within a reasonable amount of time). 210 Id. at 813-818. d. Restricting Application Denials In 2012, Congress restricted state and local authorities from denying tower modification and collocation requests that do not substantially change the physical dimensions of the existing tower.196 The FCC established an objective test for assessing whether a change is substantial.197 That analysis involves con- sideration of whether the change is in a public right-of-way, increases the tower’s height, expands the structure’s perimeter, includes technology that has cabinet requirements, requires ex- cavation or deployment outside the current site, or alters condi- tions previously approved.198 State and local governments may only require that applicants provide documentation “reasonably related” to assessing whether the request meets the statutory standard.199 Requesting other information to justify the need for the facility is prohibited.200 Courts have granted injunctive relief where a state or local government fails to issue relevant permits.201 The FCC has barred states and localities from denying per- sonal wireless siting applications because another provider is already present in the geographic area. The FCC states that a denial based on the fact that another carrier already services a market “prohibits or ha[s] the effect of prohibiting the provision of personal wireless services.”202 In supporting its rule, the Com- mission noted disagreement among courts of appeal regarding this question and therefore the issues was ripe for the agency to issue a new rule.203 The North Carolina Department of Trans- 196 47 U.S.C. § 1455(a). 197 Accelerating Broadband Deployment Report and Order 2014, at ¶ 190; 47 C.F.R. § 1.6100. 198 Accelerating Broadband Deployment Report and Order 2014, at ¶ 190. 199 Id. 200 47 C.F.R. § 1.6100(c)(1). 201 See ExteNet Systems, Inc. v. Village of Pellham, 377 F.Supp.3d 217, 230 (S.D.N.Y. 2019); Crown Castle NG E. Inc. v. Town of Greenburgh, N.Y., No. 12-CV-6157 CS, 2013 WL 3357169, at 21 (S.D.N.Y. 2013); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999); Orange Cty.-Poughkeepsie Ltd. P’ship v. Town of East Fishkill, 84 F.Supp.3d 274, 294 (S.D.N.Y.). 202 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review ad to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, 24 FCC Rcd 13994, ¶ 56 (Declaratory Ruling 2009) (citing ¶ 332(c)(7)(B)(i)(II)) [hereinafter Timely Siting Declaratory Ruling]. 203 Id. at ¶ 56 (citing APT Pittsburgh L.P. v. Penn Township Butler County of Pa., 196 F.3d 469, 480 (3d Cir. 1999) (finding “evidence that the area the new facility will serve is not already served by another provider” is essential to showing violation of “effect of prohibiting” clause)); AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 428-29 (4th Cir. 1998) (concluding that the statute only applies when the State or local authority has adopted a blanket ban on wireless service facilities). Other courts of appeals have reached the opposite conclusion. See Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 633-34 (1st Cir. 2002) (rejecting a rule that “any service equals no effective prohibition”); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 731-33 (9th Cir. 2005) (adopting the First Circuit’s analysis).

ACRP LRD 43 25 cants for mobile systems must complete an environmental assess ment prior to equipment authorization.223 For non-construction authorization deployments, the FCC deems new antenna or modification applications categorically excluded from environmental processing unless one of seven exceptions applies.224 Exceptions include a planned antenna loca tion in a wilderness area, a wildlife preserve, or a flood plain; impacts on endangered species, historical preservation, or Indian religious sites; or significant change in surface fea- tures.225 A deployment in a floodplain can avoid the necessity for an environmental assessment if the facility and all equipment is “constructed at least one foot above the base flood elevation.”226 In 2018, the FCC issued an exception to NHPA and NEPA reviews for small wireless facilities deployed under geographic area licenses. The exception was made as part of the FCC’s effort to promote and speed up the deployment of 4G and 5G small cells to densify the cellular network to meet increasing coverage demands. The FCC exempted these small wireless facilities from historic and environmental reviews by reclassifying them as neither NHPA “federal undertakings” nor NEPA “major federal actions.”227 In doing so, the FCC argued the cost of the environ- mental review exceeds its benefits and that it was in the public’s best interest to deploy the small wireless facilities. This rule may not apply to small wireless deployments at air- ports for two reasons. First, the FCC did not exempt wireless facilities subject to ASR system rules or those subject to site-by site licensing. The ASR system applies to facilities over 200 feet tall or near airports.228 The FCC Report and Order does not fur- ther discuss or distinguish small wireless facilities near airports. Therefore, small wireless facilities for 4G and 5G densification may be subject to NHPA and NEPA reviews if near airports. However, the Report and Order does acknowledge the deploy- ment differences of new and old technologies, noting that newer facilities do not need large towers. Second, depending on the airport’s involvement in the deployment, FAA NEPA reviews may apply because of an airports’ contractual grant assurances concerning airport layout plan approval.229 3. FAA Notification The FAA requires notification before proposed construction or alteration of existing structures such as telecommunications antennas 200 feet above ground level or located near or on air- 223 47 C.F.R. § 1.307(b)(2). 224 47 C.F.R. § 1.1306(a). 225 47 C.F.R. § 1.1307(a)(1)-(7). 226 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report and Order, 33 FCC Rcd. 3102, ¶ 144 (2018). 227 Id. at ¶ 36. (reversing Streamlining the Commission’s Antenna Structure Clearance Procedure, Report and Order, 11 FCC Rcd. 4272, ¶ 41 (1995)). 228 See 47 U.S.C. § 303(q); FAA Form 7460-1 Notice of Proposed Construction or Alteration; and FAA Form 7480-1 Notice of Construction, Alteration and Deactivation of Airports. 229 See 49 U.S.C. § 47107. in writing and essentially contemporaneously,211 because refer- encing meeting minutes that were sufficiently clear to enable judicial review sufficed to provide an adequate explanation.212 Similarly, a later-issued transcript of meeting minutes may suf- fice to meet these requirements when the initial transcript re- leased at the time of the denial addressed the key reasons for denial,213 and a representative of the applicant was present at the County meeting where the issue was discussed.214 In contrast, meeting minutes issued 26 days after the written denial does not meet the essentially contemporaneous timeframe require- ment.215 A denial decision that lacks substantial evidence for the denial may be subject to remand.216 Spring Spectrum, L.P., analyzed whether a proposed DAS was functionally equivalent to a cellular tower. The court asked “whether Plaintiffs adequately considered technological alterna- tives to the monopole, i.e. the feasibility of a DAS as a less intru- sive alternative.”217 The court determined a “DAS is not a feasible alternative for a traditional tower because it will not offer com- parable wireless service when measured against the coverage that can be provided by the proposed macro facility.”218 The court noted that a DAS has significant reliability concerns, a small coverage area per node, and is vulnerable to disruption.219 2. Environmental The FCC must consider and disclose environmental effects of antenna siting and collocation requests.220 The review will depend on the proposed or existing tower location and height and will include environmental assessments, environmental impact statements, or categorical exclusions. More specifically, an environmental assessment is necessary for antenna structure registration (ASR) systems, site-specific license deployments, and for non-construction authorization deployments where the antenna structures will cause a significant environmental impact.221 Applicant for site-specific licenses may need to complete an environmental assessment if their systems emits more than band-specific thresholds of power or construction of the sys- tems exceed band-specific requirements.222 Additionally, appli- 211 PI Telecom Infrastructure, LLC v. City of Jacksonville, FL, 104 F. Supp. 3d 1321, 1341 (M.D. Fla. 2015). 212 Smith Communications, LLC v. Washington City, Ark., 785 F.3d 1253, 1257 (8th Cir. 2015). 213 Id. (citing T-Mobile S., 574 U.S. at 304). 214 Id. 215 T-Mobile S., 574 U.S. at 304. 216 Vantage Tower Group, LLC v. Chatham County-Savanah Metropolitan Planning Commission, No. 4: 13-CV-258, 2015 WL 300257, at *4 (S.D. Ga. Jan. 20, 2015). 217 Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of the Borough of Paramus, N.J., 21 F. Supp. 3d 381, 397 (3d Cir. 2015) (citing Salas Opinion at 4). 218 Sprint Spectrum L.P., 21 F. Supp. 3d, at 397-98. 219 Id. at 398. 220 See 40 C.F.R. § 1506.5. 221 See 47 C.F.R. § 1.1307. 222 47 C.F.R. § 1.1307(b)(1).

26 ACRP LRD 43 tion begins or the date of the construction permit application.238 The FAA cited a need to increase their review period, especially in cases where public comments are submitted.239 Entities do not need to file notice with the FAA when adding frequencies to an existing structure that has a current no hazard determination. The 45-day notice requirement is waived by the FAA where an “emergency involving essential public services, public health, or public safety” exists and requires immediate construction or alteration of a structure. The entity can provide notice to the FAA by any “expeditious means” and must file FAA Form 7460-1 within five days of the initial notice to the FAA.240 In a 2010 final rule, the FAA declined to create a separate notice requirement for temporary structures deployed for emer- gency circumstances outside of this existing rule. In noting the example given during the comment period concerning the erec- tion of a crane to replace a building’s air conditioning without an extended shutdown for FAA review, the agency noted these re- quests are common. The FAA determined that notice is critical for all structures that may affect aeronautical operations, even temporary, and recommended notifying the FAA of the need for a quick review.241 The FAA will contact the user if its system, operating in one of the frequency bands, causes EMI to one or more of the FAA facilities. The user must then change its proce- dures to mitigate the interference or stop the operation. 4. Antenna Structure Registration Licensees must register approved towers with the FCC.242 An applicant must submit its FAA study number and FCC Form 854. The FCC then issues Form 854R upon acceptance. Form 854R will include the FAA’s “no hazard marking and lighting specifications, along with an ASR registration num- ber.” When constructed, the owner must file FAA Form 7460-2, Notice of Completion of Construction or Alteration with the FAA and Form 854 with the FCC to notify both agencies that construction is complete. Any changes to the ASR specifications will require re-application. 5. Antenna Structure Painting and Lighting All permanent or temporary structures over 200 feet above ground level, or that exceed other obstructions standards, must be properly marked and lighted. The FAA may deter- mine that towers are or are not hazards to aeronautical activ- ity and they therefore may or may not have to comply with marking and lighting requirements.243 The FAA’s Advisory Circular 70.7460-1L provides recommendations for proper lighting and marking. The FCC rules incorporate the FAA 238 Id. 239 Id. 240 14 C.F.R. § 77.7(e). 241 Safe, Efficient Use and Preservation of the Navigable Airspace. 242 47 C.F.R. Part 17. 243 FAA Advisory Circular Obstruction Marking and Lighting, AC 70/7460 IL, §  2.1 (Issued December 4, 2015) [hereinafter AC 70/7460 IL, at § 2.1]. ports through FAA Form 7460-1 and 7480-1.230 Tower modifi- cations that change an antenna’s height of more than 100 feet, specifications, or bearings require FAA notification.231 A propo- nent is not required to file notice with the FAA for aeronautical study to add frequencies to an existing structure that has a cur- rent and valid No Hazard Determination on file with the FAA. The policy applies to antenna systems operating on designated frequencies and service types stated in the notice. Except as expressly stated in the policy, requirements under Part 77 con- tinue to apply. For example, if adding a frequency to a previously studied structure increases its height, notice must be filed with the FAA under Part 77.232 On August 4, 2020, the Colo Void Coali tion asked the FAA to consider amending the November 2007 policy to include additional frequency bands that the FCC has authorized for use by wireless companies under 47 CFR since 2007. The FAA evaluates interference concerns of both the planned structure and electromagnetic radiation for their effect “on flight procedures, airport surfaces, and communication, radio-navi- gational aids and/or surveillance facilities.”233 The FAA will issue a hazard or no hazard determination based on its evaluation.234 Determinations of hazard never expire, whereas a determina- tion of no hazards expires 18 months after the effective date of the determination or upon abandonment of the proposed con- struction or alteration.235 The FAA amended 14 CFR Part 77 in 2010, to codify “cur- rent practices of studying electromagnetic effects on aircraft navigation and communication facilities.”236 Among other changes, the rulemaking process addressed notice requirements for added frequencies and timeframes for such notice. The FAA proposed expanding the list of broadcast transmissions subject to notice requirements. The FAA withdrew these frequencies from proposed notice requirements because the NTIA manages and oversee them and have historically have not posed electro- magnetic concerns.237 The 2010 rulemaking expanded the timeframe for when stakeholders must notify the FAA of planned antenna deploy- ments or modifications from 30 to 45 days before the construc- 230 See 14 C.F.R. Part 77. 231 Id. 232 Colo Void Clause Coalition, Antenna Systems Co-Location; Voluntary Best Practices, 72 FR 65449 (November 21, 2007). 233 Id. 234 The order becomes effective 40 days after date of issuance. Unless a petition for discretionary review is received by the FAA within 30 days of issuance. 235 Safe, Efficient Use and Preservation of Navigable Airspace, 75 FR 43396 (July 21, 2010) (codified as 14 C.F.R. Part 77) [hereinafter Save, Efficient Use and Preservation of Navigable Airspace]. 236 Id. 237 See Safe, Efficient Use and Preservation of Navigable Airspace (determining that the following frequencies do not require additional notification requirements: 54–88 MHz; 150–216 MHz; 406–430 MHz; 931–940 MHz; 952–960 MHz; 1390–1400 MHz; 2500–2700 MHz; 3700–4200 MHz; 5000–5650 MHz; 5925 6225 MHz; 7450–8550 MHz; and 14.2 14.4 GHz.)

ACRP LRD 43 27 restrictions that impair the use of certain antennas.251 After Congress enacted this provision in the Telecommunication Act of 1996, the FCC has issued a series of orders refining the rules scope and application to promote competition in multitenant environments.252 The FCC even issued a notice of proposed rulemaking in 2019, seeking to use OTARD to promote deploy- ment of 5G technology.253 OTARD applies where an antenna that is one meter or less in diameter or diagonal measurement is deployed within prop- erty that the user has exclusive use and control over through an owner ship or leasehold interest, and the antenna is used to receive or transmit fixed wireless signals.254 Prohibitions can- not “unreasonably delay or prevent installation, maintenance, or use of the antenna; or preclude the reception of an accept- able signal via the antenna.”255 Safety and historic preservation exceptions must include “narrowly tailored restrictions, impose as little burden as possible, and apply in a nondiscriminatory manner.”256 The Competitive Network Order makes clear that the FCC was concerned that premise owners would not adopt best practices to foster a competitive market for their tenants.257 The agency goes so far as to warn that it will consider directly regulating property owners to issue nondiscriminatory access rules if the premise owners inhibit a competitive market.258 Fur- ther, the FCC sought additional public comment regarding the competitiveness of the market, questioning whether state and local government owned buildings should be exempted from a nondiscriminatory access rule. The agency’s question specifi- cally identified municipal airports as a state or local government owned building of concern.259 251 47 C.F.R. § 1.4000. 252 See, Preemption of Local Zoning Regulation of Satellite Earth Stations; Implementation of Section 207 of the Telecommunications Act of 1996; and Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service, Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, 11 FCC Rcd. 19276 (1996) (applying 47 U.S.C. §  207 of the 1996 Telecommunications Act to video programming services); Implementation of Section 207 of the Telecommunications Act of 1996 and Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service, Second Report and Order, 13 FCC Rcd. 23874, 23880-91 ¶¶ 12-32 (1998) (expanding OTARD coverage to rental properties); Competitive Networks Report and Order, at ¶¶ 97-100 (expanding OTARD rules to fixed wireless services); and Promotion of Competitive Networks in Local Telecommunications Markets, Order on Reconsideration, 19 FCC Rcd. 5637, ¶¶ 13-18 (2004) (applying OTARD to “customer-end” antennas) [hereinafter Competitive Networks Reconsideration Order]. 253 In the Matter of Updating the Commission’s Rule for Over-the- Air Reception Devices, 34 FCC Rcd. 2695 (2019). 254 47 C.F.R. § 1.4000. 255 Id. at (a)(3). 256 ET Docket No. 05-247. Id. at 1.4000(b). 257 Competitive Networks Report and Order, at ¶ 8. 258 Id. at ¶ 151. 259 Competitive Networks Report and Order, at ¶ 152. standards and specifications by reference and therefore make them mandatory.244 The FAA has set technical standards for marking and light- ing equipment. Advisory Circular 70/7460-1L discusses FAA- approved obstruction lighting fixtures and marking require- ments. Tower structure owners have primary responsibility for painting and lighting. Recommendations for proper lighting and marking will vary based on terrain features, weather pat- terns, and geographic location.245 Licensees collocated on the tower or antenna structures are also responsible to ensure that the structure maintains all FAA and FCC painting and lighting requirements. Tower owners must immediately report any top light or flashing obstruction light outage or malfunction lasting more than thirty minutes to the FAA. The report must specify who is reporting the failure with their name, title, address, and tele- phone number; the type of structure; location of the structure to include latitude and longitude and prominent structures and landmarks, if known; height of the structure above ground level, and sea level if known; a return of service date; and the FCC ASR number. If after 15 days the outage is not fixed, the tower owner must report the outage again because the NOTAM will automatically delete.246 A report is not required if the primary lamp in a double structure light fails and the secondary lamps come on.247 Finally, the operator must provide notice when the operation is restored to normal.248 An entity may file a request for deviation with Form 7460-1m to use different marking and lighting systems. The FCC issued a Notice of Violation to Santa Ynez Valley Airport Inc. (SYVA) for failure to notify the FCC of tower completion and failure to display their ASR number. The notice required SYVA to submit a written statement concerning the matter within twenty days that explained the violation and rel- evant facts and circumstances, along with a statement of actions to correct violations and a timeline for completion of the cor- rective actions.249 Similarly, East Hampton Airport received a Notice of Violation in 2006 for failing to display the ASR num- ber. East Hampton was required to submit a written response to the FCC.250 B. Over-the-Air Reception Devices (OTARD) Rules Airport operators may not unreasonably restrict the deploy- ment of certain small antennas through regulations, contracts, or network management practices. OTARD prohibits property 244 FCC Antenna Tower Lighting and Marking Requirements, https://www.fcc.gov/media/policy/antenna-tower-lighting-and- marking-requirements (last visited September 5, 2020). 245 AC 70/7460 IL, at § 2.1. 246 Id. at § 2.4. 247 Id. 248 Id. at § 2.5. 249 Santa Yanez Valley Airport NOV, File No. EB-Field WR-14- 00051762. 250 East Hampton Airport NOV, No. V20073238009.