Selected portions of the BloostonLaw Private Users Update, a newsletter from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission.
Clients Using Commercial Wireless Services Should Develop a Policy for Employees That Receive Emergency Alerts
The newly-created Commercial Mobile Alert System (CMAS) is now in operation, with cellphone companies and other wireless carriers sending their customers alerts via their wireless handsets about storms and other emergency conditions. For our clients that use commercial wireless services instead of, or in addition to, their own radio system, this service can provide invaluable information concerning hazardous conditions that may affect their operations, and more importantly, the safety of their employees and customers. Now that this Emergency Alert information is being furnished to employees using wireless handsets, it will be important for our clients to put into place a policy for employees to follow in response to such alerts. For instance, if an employee is traveling toward an area that is under a storm warning and receives an emergency alert on his or her cell phone, what is the company policy concerning whether that employee should proceed? The lack of a policy may have liability consequences for the company if an employee is injured.
The FCC has announced that the Office of Management and Budget (OMB) has approved the information collection requirements associated with the order creating the CMAS, effective July 13. This has given the green light for wireless carriers to begin sending the alerts, which they are now doing. As required by the Warning, Alert, and Response Network (WARN) Act, Public Law 109-347, the FCC adopted final rules to establish a CMAS, under which the Commercial Mobile Service (CMS) providers may elect to transmit emergency alerts to the public.
FCC Denies Petition to Halt Tower Construction
The FCC has found that American Towers has complied with its environmental obligations under the Commission's rules with respect to a proposed 314-foot tower in Marshall, Ark. The FCC said the proposed tower does not fall within a category that routinely requires the preparation of an environmental assessment. This protest likely constitutes a preview of what lies ahead for licensees building towers under the expanded environmental assessment/tower registration rules. While the licensee ultimately won, time and expense fighting a protest significantly increased.
The FCC's action came in response to an emergency petition filed by Michael J. Pearson, who argued that American Towers began construction of the tower with-out providing notice to the public. Given that the rules from the Commission's December 2011 Order on Remand were not in effect at the time the tower was registered, American Tower was required to provide notice under the Commission's rules only for National Historic Preservation Act Section 106 review under the Nation-wide Programmatic Agreement, the FCC said. It added that American Towers' notice in the Marshall Mountain Wave newspaper met this obligation. Mr. Pearson also alleged that this tower would have significant environ-mental effects on migratory birds and endangered species. The FCC, however, found that this assertion does not meet the standard for requesting environmental re-view under section 1.1307(c) of the rules. The FCC said that "Mr. Pearson does not identify any endangered species that may be affected by the tower. Instead, he provides a lengthy list of non-endangered species in the area. Further, Mr. Pearson does not provide any basis for why migratory birds may be significantly affected by this particular tower. The proximity to a Wildlife Management Area and relative proximity to the Buffalo National River Park do not, in and of themselves, establish that the tower may have a significant effect on the environment." The FCC also noted that while the tower would be situated in a migratory flyway and lit with red-steady lights, it would be under 450 feet tall and not use guy wires. Existing studies have not shown significant avian mortality at towers less than 450 feet tall, the Commission said. It, therefore, denied Mr. Pearson's petition.
Executive Order Gives President Control of All Communications For National Security
President Obama last Friday signed Executive Order 10995, "Assignment of National Security and Emergency Preparedness Communications Functions," which claims expansive authority to ensure the ability of the federal government "to communicate at all times and under all circumstances to carry out its most critical and time sensitive missions." and to "ensure national security, effectively manage emergencies, and improve national resilience."
To achieve these policies, the Executive Order authorizes the Secretary of Homeland Security, among other things, to oversee the development, testing, implementation, and sustainment of national security and emergency preparedness (NS/EP) communication and to "satisfy priority communications requirements through the use of commercial, government, and privately owned communications resources, when appropriate." (emphasis added).
The Executive Order also creates an Executive Commit-tee made up of representatives of various executive branch offices and the Federal Communications Commission, with responsibilities to, among other things, "advise and make policy recommendations to the President . . . on enhancing the survivability, resilience, and future architecture of NS/EP communications;" "promote the incorporation of the optimal combination of hardness, redundancy, mobility, connectivity, interoperability, restorability, and security to obtain, to the maximum extent practicable, the survivability of NS/EP communications under all circumstances" and "to recommend to the President . . . the regimes to test, exercise, and evaluate the capabilities of existing and planned communications systems, networks, or facilities to meet all executive branch NS/EP communications requirements, including any recommended remedial actions."
Although the Executive Order states that the Executive Committee shall enable industry input, it is not clear whether or how all members of the industry will be allowed to comment on or participate in the recommendations of the Executive Committee.
FCC Proposes $10k Fine for Tower Lighting Failures
The FCC has issued a Notice of Apparent Liability for Forfeiture and Order (NAL), finding that Super Towers, Inc., owner of an antenna structure in Bonita Springs, Florida, apparently willfully and repeatedly violated the Communications Act Commission rules by failing to:
(1) exhibit red obstruction lighting from sunset to sunrise,
(2) notify the Federal Aviation Administration (FAA) of a known lighting outage, and
(3) monitor the antenna structure lighting on a daily basis.
The FCC concluded that Super Towers is apparently liable for a forfeiture in the amount of $10,000. In addition, the FCC directed Super Towers to submit, no later than 30 calendar days from the date of the NAL, a statement signed under penalty of perjury stating that it complies with the Commission's antenna structure lighting, notification, and monitoring requirements.