FAA Pre-approval of FM Frequency Use on Hold


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The Federal Aviation Administration has backtracked from a proposal advanced in 2006 under which FM broadcasters would have been required to notify the FAA, and get FAA approval, for most proposed new or changed facility applications.

In 2006 the FAA proposed to dramatically expand its influence over radio spectrum users – if not usurp the FCC in some areas of spectrum allocations. New or modified facilities that included RF generators using a wide range of frequencies, including changes in channels, power increases of 3dB or more and antenna modifications, all were to be subject to an FAA threshold study. Without an FAA blessing in the form of a Determination of No Hazard, a noticed change would not be permitted regardless of what the FCC said about the underlying application. Fortunately, in a decision released this summer, the FAA has committed to collaborating with the FCC and NTIA in regulating RF radiation. The end result for FM licensees and applicants, however, is still to be determined.

For decades the FAA has expressed concern about possible adverse effects of electromagnetic interference (EMI) on aviation safety. Modern aviation radios – both on-board aircraft and on the ground – use radio spectrum for a variety of important purposes, including communications and navigation. But the FAA’s interest in preventing EMI has historically led to tension with the FCC and FM broadcasters. It is one thing for the FAA to regulate the height of towers and other structures that might get in the way of aircraft landing and taking off; it is another for the FAA to assert that it can or should dictate the geographic areas and the manner in which FM radio frequencies may be used.

To support its intervention in this area, the FAA has pointed out that Congress gave it broad authority to promote safe air travel. And if EMI is a threat to air safety, then the FAA has a role in controlling spectrum use so as to reduce, if not eliminate, that threat. Relying on that position, in the 1990s the FAA put a hold on hundreds of FM applications involving new tower structures where a possible EMI problem existed regardless of whether the FCC was satisfied that the proposed operations would protect other spectrum users adequately. The FAA’s 2006 initiative threatened to reopen and expand the agency’s review of FM applications as well as applications of other spectrum users on selected frequencies.

In its July 2010 decision, the FAA withdrew the proposal for required pre-construction notice for all frequencies other than the FM band (88.0-107.9MHz). With respect to FM, the FAA took a notably conciliatory tone, saying in the future it would collaborate with the FCC and NTIA to come up with mutually agreeable review standards and procedures.

While this interim decision does not eliminate the threat of increased FAA intrusion into RF matters, it allays immediate concerns. Further, the cooperative manner in which the FAA-FCC dispute involving FM proposals was resolved provides hope that the agencies will cooperate in a way that will not result in a new set of restraints on FM facilities-change applications. But the decision also underscores the fact that the FAA’s interest in having a say about FM operations is still alive, as is the FAA’s apparent belief that its statutory authority gives it some say in that regard.

Under the new rules, which take effect Jan. 18, 2011, Determinations of No Hazard will be effective 40 days after the date on which they are issued. Previously, a determination’s effective date was reflected on the face of the determination itself, and normally corresponded with the date of issuance. Thus, the new rules impose a 40-day lag time between issuance and effectiveness. This, in turn, could result in delays in obtaining FCC Antenna Structure Registrations, which are required for the issuance of a new construction permits.

Dateline

For noncommercial radio stations in Colorado, Minnesota, Montana, North Dakota and South Dakota, their biennial ownership report deadline is Dec. 1.
Dec. 1 is the deadline for radio stations licensed in the following locations to place their Annual EEO Reports in their public files: Alabama, Colorado, Georgia, Minnesota, Montana, North Dakota and South Dakota.
The radio station license renewal cycle begins again in 2011, with the first batch of renewals due on June 1, 2011, for stations in D.C., Maryland, Virginia and West Virginia.


Martin is a member of Fletcher, Heald & Hildreth, PLC, Arlington, Virginia. E-mail: martin@fhhlaw.com.




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