Industry Groups Urge FAA to Withdraw RF Rulemaking

The FCC has yet to file in the 2nd round of comments in the proceeding, which were due this week. The Commission warned in Aug., in comments on paperwork reduction, that the burden could be enormous (CD Aug. 15 p 3). This week’s comments explore broader issues raised by the rulemaking.

Sources said FCC officials are upset about how the FAA has conducted the rulemaking, released in June, and about what they regard as that agency’s attempt to assert authority over spectrum issues. One source said FCC’s Office of Engineering & Technology and the Wireless Bureau had strong concerns about the FAA rulemaking.

“This comes out of nowhere,” said a regulatory lawyer following the proceeding. “It applies in lots and lots and lots of bands, and it’s focused not on the physical structures but on RF emissions. It makes them a little FCC. It is extraordinary.” The source said the FAA probably lacks authority to regulate RF emissions. “Apart from being stupid, it would also be illegal,” the lawyer said. “I believe at some point they will come to that conclusion themselves.”

A 2nd regulatory lawyer said industry has gotten relatively little feedback because, unlike the FCC, the FAA develops a record almost exclusively through written comments. “But the scuttlebutt is that the FAA was surprised by the reaction of the communications industry to their proposal,” the lawyer said. “The FAA had not anticipated the level of concern that communications entities might have.”

“The FAA has been trying to do this for more than 29 years,” said an industry source who follows tower siting issues. “This was in some ways a little out of the blue… There’s been a lot of opposition that has come out.” The source agreed the rulemaking may fall flat: “From what I've heard I don’t really think it’s going to go anywhere and if it does it will take a while, it would take a couple of years.”

“This NPRM should be withdrawn,” the Wi-Fi Alliance said. “At the very least, the FAA must significantly curtail its reach to avoid any regulation of radio frequency matters.” The alliance said the rulemaking is a departure from FAA’s traditional willingness to work with the FCC on air safety. “With this NPRM, however, the FAA is proposing to extend its regulatory reach to almost all transmitters in 13 different radiocommunication bands that the FCC and/or NTIA already regulate,” the group said: “And it does so regardless of height over 20 feet, distance from an airport or flight path, or any demonstrated (or even probable) effect on air navigation.”

The Wireless Communications Assn. said imposing the rules would have “a devastating impact on much needed broadband deployments across the United States.” WCA questioned whether the FAA has authority over spectrum matters normally under the FCC’s control. “If the proposals in the 2006 NPRM are adopted, the FAA effectively will become a gatekeeper that has the power to deny a [wireless broadband] operator the right to use its FCC-licensed spectrum,” WCA said: “The Airport and Airway Safety and Capacity Expansion Act of 1987 did not give the FAA that authority.”

CTIA agreed the proposed rules exceed the FAA’s statutory authority. CTIA said the airport safety act cited by the FAA as the source of its jurisdiction “is a narrow grant of authority over the safe and efficient use of the navigable airspace.” The act “does not supersede the FCC’s primary and comprehensive jurisdiction over spectrum management,” CTIA said.

PCIA said tower operators are concerned that the rules would slow the build out of towers by imposing longer notice periods for changes to towers and tower siting. “The NPRM sets forth a number of rules which, in concert, will not enhance air safety but will significantly delay the issuance and effectiveness of final determinations for new and modified structures,” the group said. “The proposals will more than triple the amount of time applicable to most notice filings.”