**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | WT Docket No. 05-326         |
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| Requests of American Tower       | ** |                              |
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| Global Signal, Inc. to Waive     | *) |                              |
| Section 17.47(b)                 | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: May 11, 2007 Released: May 15, 2007**

By the Commission:

# INTRODUCTIOn

1.  This *Memorandum Opinion and Order* addresses two separate requests
    to waive Section 17.47(b) of the Commission's Rules, 47 C.F.R. §
    17.47(b), which provides that the owner of any antenna structure
    which is registered with the Commission and has been assigned
    lighting specifications pursuant to Part 17 "\[s\]hall 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."[^1] The requests are from American Tower Corporation
    ("ATC") and Global Signal, Inc. ("GSI"). Each of the two requests is
    from a corporation that owns thousands of antenna tower structures
    that are subject to the lighting requirements set forth in Part 17
    of the Commission's Rules.[^2]

2.  ATC and GSI each argue that the quarterly inspections of antenna
    monitoring systems mandated by Section 17.47(b) of the Rules have
    been rendered unnecessary because of technological advancements
    associated with the particular monitoring system that it employs
    with respect to many of its antenna structures. They both ask the
    Commission to waive the rule to permit annual inspections instead
    for the antenna structures that use these systems. This *Memorandum
    Opinion and Order* grants their respective requests for relief.

# BACKGROUND

3.  On May 19, 2005, ATC filed a Request for Waiver ("ATC Waiver
    Request").[^3] Specifically, for towers utilizing the Eagle
    Monitoring System ("Eagle System") developed by Flash Technology
    ("Flash"), ATC seeks permission to perform an annual inspection of
    the towers in place of the required quarterly inspection.[^4] On
    November 14, 2005, ATC supplemented its waiver request with
    additional information regarding the technical characteristics and
    functioning of the Eagle System.[^5]

4.  On January 24, 2006, the Wireless Telecommunications Bureau released
    a Public Notice (DA 06-139) seeking comment on the ATC Waiver
    Request. Comments were due no later than February 23, 2006, and
    reply comments were due no later than March 15, 2006. Four parties
    filed comments in response to the Public Notice: (1) GSI;[^6] (2)
    Hark Tower Systems, Inc. ("Hark");[^7] (3) PCIA -- the Wireless
    Infrastructure Association ("PCIA");[^8] and (4) the Aircraft Owners
    and Pilots Association ("AOPA").[^9] ATC and Flash filed Reply
    Comments.[^10] As part of its comments, GSI requests that it also be
    granted a limited waiver of the quarterly inspection requirements,
    consistent with ATC's waiver request, with regard to its towers that
    are monitored using the HARK System. More recently, the Airspace and
    Rules Group of the Federal Aviation Administration (FAA) filed a
    statement in which it said: "We would not be opposed (to) the FCC
    issuing waivers to 47 C.F.R. Section 17.47(b) provided the applicant
    can demonstrate a safe and reliable automatic monitoring system with
    tracking mechanisms to evaluate the remote monitoring
    technology."[^11]

# DISCUSSION

5.  Section 1.925 of the Commission's Rules provides that, with respect
    to wireless telecommunications services, the Commission may grant a
    request for waiver if it is shown that: "(i) The underlying purpose
    of the rule(s) would not be served or would be frustrated by
    application to the instant case, and that a grant of the requested
    waiver would be in the public interest; or (ii) In view of unique or
    unusual factual circumstances of the instant case, application of
    the rule(s) would be inequitable, unduly burdensome or contrary to
    the public interest, or the applicant has no reasonable
    alternative."[^12] As discussed below, we grant waivers to ATC and
    GSI because we find that application of the quarterly inspection
    requirements of Section 17.47(b) to the towers in question is not
    necessary to serve the underlying purposes of the rule, and grant of
    the waivers is in the public interest. Based on the evidence
    presented, strict application of the rule to ATC and GSI would be
    unduly burdensome and contrary to the public interest.

## The ATC Waiver Request

6.  In its waiver request, ATC states that, as of November 2005, 4,694
    of the towers that it owns or operates in the United States, and
    that are subject to the Commission's lighting requirements, were
    being monitored utilizing the Eagle System.[^13] ATC asserts that
    the self-diagnostic functions in the Eagle System are sufficiently
    robust that quarterly inspection is unnecessary to ensure that the
    control devices, indicators, and alarm systems on the towers are
    operating properly. In this regard, ATC maintains that the Eagle
    System provides the functional equivalent of a continual inspection
    of control devices from one central location and that users of this
    system will be alerted to actual and potential problems immediately,
    in many cases, or at most within 24 hours.[^14] Specifically, ATC
    describes the following features of the Eagle System:

> \(1\) *Alarm notification*. The lighting system installed at the tower
> site is equipped with Eagle software that contacts the Alarm Response
> Center (ARC) for every type of "alarm." ATC categorizes these alarms
> as "major alarms" (beacon/strobe failure, beacon/strobe communication
> failure, filter failure, low flash energy, consecutive missed flashes,
> photo cell failure, power failure, and site communication failure) and
> "minor alarms" (AC power failure, DC power failure, and side marker
> failure).[^15] These alarms have automated escalations within the ARC
> to ensure proper diagnostics are conducted within a 30 minute window.
> Within the time frame, the ARC contacts the site and performs full
> lighting system diagnostics to identify the nature of a lighting
> failure and to determine if issuance of a Notice to Airmen ("NOTAM")
> is necessary.[^16]
>
> \(2\) *24-hour polling*. The Eagle System is programmed to call each
> and every site once every 24 hours regardless of the independent
> on-site lighting system notification. This call is automated and runs
> a full diagnosis of the lighting system. This diagnosis is completed
> for all lighting phases (i.e., night, day, twilight) regardless of the
> time of day. This process ensures the lighting system is both working
> and communicating properly with the Eagle System.
>
> \(3\) *Manual contact*. The Eagle System allows for a manual
> diagnostic review of any tower monitored by the system from any
> computer.[^17]

7.  The Eagle monitoring system has a Network Operations Call ("NOC")
    center that is staffed with trained personnel capable of responding
    to alarms and that has the ability to communicate during limited
    power outages. Additionally, it is significant that ATC has a backup
    NOC center in the event of catastrophic failure at the primary NOC
    center, and specific procedures to follow in the event of such a
    catastrophic failure.

8.  ATC states that, particularly for towers in remote locations,
    quarterly inspection imposes a substantial and unnecessary resource
    burden. ATC contends that without relief it will continue to carry
    out tens of thousands of quarterly inspections each year without a
    discernible public interest benefit.[^18] In its Reply Comments, ATC
    further notes that at the time the ATC Waiver Request was filed, ATC
    had conducted 43,761 quarterly inspections since March 28, 2002, the
    date on which the Eagle System became "stabilized." ATC asserts that
    not a single incident was discovered during any of these quarterly
    inspections that required the issuance of a NOTAM under FCC rules.
    It points out that between the filing of ATC's Request for Waiver
    and its Reply Comments, an additional 17,477 quarterly inspections
    were conducted, each without the discovery of any NOTAM-worthy
    event.[^19]

9.  Flash, PCIA, GSI, and Hark support the ATC Waiver Request. Flash was
    founded in 1969 and developed the Eagle System that is the basis of
    the ATC Waiver Request. In its comments, Flash corroborates ATC's
    description of the Eagle System and supports ATC's argument that the
    system's features render quarterly inspections unnecessary. PCIA is
    a trade association representing the wireless telecommunications and
    broadcast infrastructure industry, whose members own or manage more
    than 50,000 towers that support wireless services across the
    country.[^20] PCIA supports ATC's Request for Waiver on the grounds
    that the underlying purpose of Section 17.47(b) is served "just as
    well" by ATC's "alternative approach."[^21] GSI, an owner and
    operator of towers, supports the ATC Waiver Request,[^22] and also
    asks for a similar waiver based on its own use of the HARK
    System.[^23] Hark, a supplier of obstruction light alarm monitoring
    equipment to the wireless communications industry, also urges the
    Commission to grant the ATC Waiver Request if the grant is not
    limited to the one brand of monitoring equipment used by ATC.[^24]

10. AOPA, representing over 406,000 general aviation pilots nationwide,
    opposes ATC's Waiver Request.  AOPA indicates that it favors
    introduction and use of new technologies, but believes quarterly
    inspections should continue at this time until these new
    technologies have been thoroughly evaluated.  AOPA emphasizes that
    it is concerned about safety, and indicates that lack of tower
    lighting has contributed to numerous fatal aircraft crashes.[^25]
    AOPA therefore asks the Commission first to track more closely ATC's
    responsiveness to outages before granting relief from any inspection
    requirements.[^26] In addition, AOPA alleges generally \[without
    more\] that "ATC's history of non-compliance with lighting and
    inspection requirements" provides a reason for denying its
    request.[^27]

11. We find that uncontested evidence submitted in the record by ATC,
    and corroborated by Flash, establishes that quarterly inspections
    are unnecessary for those towers using ATC's Eagle monitoring
    system. Features of this system provide sufficiently robust
    monitoring of the control devices, indicators and alarm systems so
    as to render quarterly inspections unnecessary, thus warranting
    grant of ATC's waiver request. We conclude that ATC is operating a
    safe and reliable monitoring system with tracking mechanisms to
    evaluate the remote monitoring technology.[^28] Indeed, such
    advanced technology provides the benefits of more rapid response
    where there has been a lighting failure, and thus the public
    interest is served with respect to aircraft safety. In addition,
    granting ATC's request for waiver will save ATC millions of dollars
    and thousands of person-hours that are unnecessarily spent on
    quarterly inspections annually where it has deployed this advanced
    technology.

12. We do not find AOPA's general objections persuasive in light of the
    record before us. AOPA suggests that the technology ATC uses, as
    well as ATC's record utilizing that technology, require further
    evaluation before the Commission should grant ATC relief. However,
    as discussed above, ATC and Flash have provided a detailed
    description of the relevant features of the Eagle System, and ATC
    further shows the system's successful operation at thousands of
    towers over four years without incident. We believe this evidence
    amply establishes the system's efficacy and reliability, without
    need for further consideration. Moreover, AOPA provides no detail
    regarding ATC's alleged "history of non-compliance with lighting and
    inspection requirements" or its relevance to ATC's Waiver Request.
    [^29] We therefore find that ATC has established good grounds for
    the waiver that it requests.

## The GSI Waiver Request

13. GSI requests, consistent with ATC's waiver request, that the
    Commission adopt a further limited waiver of the quarterly
    inspections requirement to allow all GSI towers that utilize the
    Hark System to be inspected on an annual, instead of quarterly,
    basis. GSI owns or operates more than 11,000 towers in the U.S., of
    which 3,350 are subject to the Commission's lighting requirements. 
    Of these 3,350 lit towers, 2,975 are monitored using the HARK
    System, and GSI planned to upgrade the remainder of its lit towers
    in 2006.[^30]

14. GSI states that today's remote inspection technology, and the HARK
    System in particular, is vastly superior to the technology that
    existed when on-site quarterly inspections were first mandated in
    the 1940s and 1950s.[^31] GSI provides a comprehensive exhibit that
    completes its waiver request, and includes similar information to
    that provided in the *ATC Supplement*. Specifically, the HARK
    System, which is used by GSI, receives and reports alarms that are
    activated when the self-diagnostic functions of the obstruction
    lighting systems determine that there is a lighting malfunction.
    These monitoring devices are microcomputer-based and sophisticated.
    Features of these devices include programmable delays to prevent
    false alarms, alphanumeric labeling for input and output circuits to
    remove confusion as to the origin of alarms, and the capability of
    handling a variety of two-way communications to the NOC center.[^32]
    In addition to the alarm contact inputs, the HARK System samples the
    state of photocells at the tower sites to determine whether the
    lighting systems are operating in the correct mode for the time of
    day. Alarms from GSI's sites are transmitted immediately,
    acknowledged by the NOC center computer system, and then reviewed by
    NOC center personnel located in Sarasota, Florida. NOC center
    personnel are able to connect with the alarmed site on demand to
    interrogate the status of the site. To ensure that the
    communications link between each tower's controller device and GSI's
    NOC center is operational, GSI's NOC center system initiates an
    outbound connection to each tower's monitoring system at least once
    each day to test the communications link. If this redundancy results
    in a failed contact, a NOTAM is opened out of an abundance of
    caution. As a practical matter, the HARK System notifies GSI within
    minutes of (i) the occurrence of any incident that would require
    opening a NOTAM; and/or (ii) any equipment failure that could be
    discovered during an on-site inspection. GSI has site equipment
    capable of interrogation on demand and the ability to communicate
    during limited power outages. Additionally, GSI has a backup NOC
    center in the event of catastrophic failure at the primary NOC
    center, and specific procedures to follow in the event of such a
    catastrophic failure. On the basis of the entirety of the filing,
    GSI characterizes its system as similar to ATC's and seeks the same
    waiver as ATC.

15. GSI further argues that the quarterly inspections impose a
    substantial and unnecessary burden on its resources. To meet the
    quarterly inspection requirements, GSI must send a trained
    technician to visit each of 3,350 sites four times per year for a
    total of 13,400 site visits annually. Many of these tower sites are
    in remote locations. GSI spent approximately \$2.01 million in 2005
    to conduct these visits. GSI has conducted 24,153 on-site quarterly
    inspections at GSI/Hark System towers since October 2001. As with
    ATC's antenna structures using the Eagle System, not a single
    NOTAM-worthy event was discovered by GSI during any of these
    inspections. Thus, GSI contends, these inspections appear to yield
    no tangible benefit.[^33]

16. Of the other commenters and reply commenters, only ATC references
    GSI's waiver request. ATC did not take a position on the merits of
    GSI's waiver request, but expressed a preference that it be
    considered in a separate proceeding so as not to delay action on
    ATC's request.[^34]

17. As with ATC, we conclude, based upon uncontested evidence submitted
    in the record by GSI, that certain aspects of the HARK System
    provide sufficiently robust monitoring of the control devices,
    indicators and alarm systems so as to render quarterly inspections
    unnecessary, thus warranting grant of GSI's waiver request. We
    conclude that GSI is operating a safe and reliable monitoring system
    with tracking mechanisms to evaluate the remote monitoring
    technology.[^35] As with ATC's system, GSI's use of advanced
    technology promotes rapid response to lighting failures with
    attendant aircraft safety benefits. In addition, granting GSI's
    request for waiver will save GSI millions of dollars and thousands
    of person-hours that are unnecessarily spent on quarterly
    inspections annually where it has deployed this advanced technology.

# CONCLUSION

18. For the reasons discussed above, we waive Section 17.47(b) to allow
    ATC and GSI, for their towers monitored using the Eagle and HARK
    systems, to conduct inspections required by that section on an
    annual, rather than a quarterly, basis. As described in detail in
    the record, these monitoring systems reliably diagnose problems,
    including any failures of control devices, indicators and alarm
    systems, within real time, and therefore render strict application
    of the rule unnecessary to serve its underlying purpose. Moreover,
    these waivers will relieve ATC and GSI of the burden of performing
    thousands of unnecessary quarterly inspections. In addition,
    granting these waiver requests will encourage other tower owners to
    invest in similar state-of-the-art technologies so that they too
    will become capable of continuous monitoring of both their lighting
    systems and control devices.

19. We note that PCIA has recently filed a Petition for Rulemaking in
    which it requests, among other things, to amend Section 17.47(b) of
    the rules so as to exempt systems using NOC-based monitoring
    technology from the quarterly inspection requirement.[^36]  PCIA's
    Petition for Rulemaking was placed on Public Notice to allow
    interested persons to file statements opposing or supporting
    it.[^37] This petition is currently pending before the Commission,
    and the waivers which we grant today are subject to any rule changes
    that we may promulgate in that proceeding. In the interim, the
    Commission or its staff will evaluate requests by other tower owners
    using monitoring systems with characteristics similar to the Eagle
    and HARK systems for similar waivers.

# ORDERING CLAUSE

20. Pursuant to Sections 4(i), 303(q), and 303(r) of the Communications
    Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(q), 303(r), and
    pursuant to Section 1.925 of the Commission's Rules, 47 C.F.R. §
    1.925, the Requests for Waiver filed by ATC and GSI ARE GRANTED.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

> Secretary

[^1]: 47 C.F.R. § 17.47(b).

[^2]: 47 C.F.R. Part 17.

[^3]: *See* Request for Waiver, WT Docket No. 05-326, filed May 19, 2005
    (*ATC Waiver Request*).

[^4]: *See ATC Waiver Request* at pp. 1-10.

[^5]: *See* Letter from Dennis P. Corbett and John W. Barwell, Leventhal
    Senter & Lerman PLLC, and H. Anthony Lehv, Senior Vice President,
    Associate General Counsel and Chief Compliance Officer, American
    Tower Corporation, to Jeffrey S. Steinberg, Deputy Chief, Spectrum
    and Competition Policy Division, Wireless Telecommunications Bureau
    (November 14, 2005) (*ATC Supplement*). This additional information
    was provided in response to a request by the Wireless
    Telecommunications Bureau's Spectrum and Competition Policy
    Division. *See* Letter from Jeffrey S. Steinberg, Deputy Chief,
    Spectrum and Competition Policy Division, Wireless
    Telecommunications Bureau, to Dennis P. Corbett, Leventhal Senter &
    Lerman PLLC (September 29, 2005).

[^6]: Comments and Request for Further Waiver of Global Signal, Inc., WT
    Docket No. 05-326, filed February 23, 2006 (*GSI Comments and Waiver
    Request*).

[^7]: Comments of Hark Tower Systems, Inc. on Request of American Tower
    Corp. for Waiver of Quarterly Inspections Required by Part 17, WT
    Docket No. 05-326, filed February 23, 2006 (*Hark Comments*).

[^8]: Comments of PCIA -- The Wireless Infrastructure Association on
    Request of American Tower Corp. for Waiver of Quarterly Inspections
    Required by Part 17, WT Docket No. o5-326, filed February 23, 2006
    (*PCIA Comments*).

[^9]: Letter from Aircraft Owners and Pilots Association to Federal
    Communications Commission, WT Docket No. 05-326, filed February 23,
    2006 (*AOPA Comments*).

[^10]: Reply Comments of American Tower Corporation, WT Docket No.
    05-326, filed March 15, 2006 (*ATC Reply Comments*); Comments of
    Flash Technology on Request of American Tower Corp. for Waiver of
    Quarterly Inspections Required by Part 17, WT Docket No. 05-326,
    filed March 15, 2006 (*Flash Reply Comments*). Although Flash's
    filing is characterized as "Comments," it was filed during the reply
    comment window, and will be treated as "Reply Comments."

[^11]: Brief Comment of Office of Airspace and Rules, FAA, WT Docket No.
    05-326, filed December 4, 2006 (*FAA Filing*).

[^12]: 47 C.F.R. § 1.925(b)(3).

[^13]: *ATC Supplement* at 4. ATC indicates that it owns or operates
    more than 12,000 towers that are subject to the Commission's
    lighting requirements. *ATC Waiver Request* at 3.

[^14]: *ATC Waiver Request* at 2.

[^15]: *ATC Supplement* at 4-5.

[^16]: Antenna structure owners "shall report immediately by telephone
    or telegraph to the nearest Flight Service Station or office of the
    Federal Aviation Administration any observed or otherwise known
    extinguishment or improper functioning of any topy steady burning
    light or any flashing obstruction light, regardless of its position
    on the antenna structure, not corrected within 30 minutes." 47
    C.F.R. § 17.48(a). *See* FAA Circular AC-70/7460-1K, Chapter 2,
    Light Failure Notification.

[^17]: *ATC Supplement* at 5; *Flash Reply Comments* at 3.

[^18]: *ATC Waiver Request* at 2.

[^19]: *ATC Reply Comments* at 2.

[^20]: *PCIA Comments* at 1.

[^21]: *Id*. at 2.

[^22]: *GSI Comments and Waiver Request*.

[^23]: *Id*.

[^24]: Hark further recommends that Section 17.47(b) be modified to
    relieve inspection requirements for all tower companies using a
    sophisticated monitoring system and a network operations control
    ("NOC") center. *Hark Comments* at 4. As discussed below, this issue
    has been raised in a petition for rulemaking that is currently
    before the Commission.

[^25]: *AOPA Comments* at 1.

[^26]: *Id*.

[^27]: *Id*.

[^28]: *See FAA Filing*.

[^29]: We note that on January 16, 2001, the Commission issued a Notice
    of Apparent Liability (NAL) against ATC for 36 violations of
    Sections 17.4(a), 17.4(a)(1), 17.4(g), 17.45, and 17.57 of the
    Rules.  ATC entered into a Consent Decree with the Commission on
    August 2, 2001, which terminated the investigations detailed in the
    NAL.  The Consent Decree required ATC to make a voluntary
    contribution to the U.S. Treasury of \$300,000 and abide by a Part
    17 Compliance Plan.   Since 2001, ATC has not had a significant
    history of non-compliance with the Part 17 rules.

[^30]: *GSI Comments and Waiver Request* at 1.

[^31]: *GSI Comments and Waiver Request* at 2.

[^32]: *GSI Comments and Waiver Request* at 3.

[^33]: *GSI Comments and Waiver Request* at 2.

[^34]: *ATC Reply Comments* at 2.

[^35]: *See FAA Filing*.

[^36]: Petition for Rulemaking, RM-11349, In the Matter of Amendments to
    Modernize and Clarify Part 17 of the Commission's Rules Concerning
    Construction, Marking and Lighting of Antenna Structures, filed by
    PCIA -- The Wireless Infrastructure Association on September 12,
    2006.

[^37]: Consumer & Governmental Affairs Bureau Reference Information
    Center Petition for Rulemakings Filed, *Public Notice*, Report No.
    2794 (rel. October 30, 2006). Comments were due on November 29,
    2006.