Fines for broadcast station tower owners who fail to maintain the required lighting on their tower are not unusual. But in a decision last week, the FCC made clear that, even if the licensee of a broadcast station is not the tower owner, it still has the responsibility for dealing with tower lights that are out, even if the tower owner does not. The failure of the licensee to maintain the tower lights, and other related issues, resulted in an $11,000 fine issued by the FCC.
The case was unusual in that the broadcast licensee, and the company from which it bought the station, were arguing over who owned the tower – not contending that the each owned the tower, but instead each pointing to the other as the one with the responsibility for the maintenance of the tower. The former owner of the station maintained ownership of the underlying land, but claimed that the tower was conveyed to the new station owner. The licensee claimed that the tower was still owned by the former owner, and that former owner should be responsible for the tower lights. The FCC reviewed the contract between the two parties, seemed to conclude that the licensee had in fact acquired the tower, but said that the final determination on that issue was one for local courts, not the FCC. But even if the licensee did not own the tower, it still had the responsibility for the tower as licensees have the responsibility to insure that the tower lighting requirements in their licenses are met. This obligation is set out in Section 17.6 of the Commission's rules and in various policy statements. Thus, no matter who owned the tower, the licensee was still subject to the fine for the lights not being operational.
As set forth in this decision, if the lights go out, the FAA must be notified of the outage, which was not done here. And attempts to fix the problem must be made. Here, while there was the dispute over the ownership of the tower, the FCC found that the licensee made no attempts to fix the issue or notify the FAA or the FCC, even though it appeared to have control over the tower – whether or not it actually owned it.
Clearly, licensees need to take note. If the required lights are out on their towers, and the owner of the tower refuses to take the required actions, the licensee must step in and do what it needed to be in compliance or, on top of any other liability that may attach, the FCC is liable to take action. Section 17.6 of the FCC's rules requires that the licensee notify the tower owner if the licensee believes that painting or lighting requirements are not being met. If such a step does not result in a resolution of the problem, the licensee must notify the FCC and take such steps as it can to get the tower into complaince. Such an eventuality should also be taken into account in any tower lease agreement, requiring that the owner do what is necessary, but noting that the licensee can act (and perhaps set off costs against its lease obligations) if the owner does not do what it required. Something to think about if you are operating a broadcast station from a tower that you do not own.