FAA REVIEW OF PROPOSED TELECOMMUNICATIONS TOWER--- PART 1

Background

In administering Title 14 of the Code of Federal Regulations (14 CFR) Part 77, the prime objectives of the FAA are to promote air safety and the efficient use of the navigable airspace. To accomplish this mission, aeronautical studies are conducted based on information provided by proponents on an FAA Form 7460-1, Notice of Proposed Construction or Alteration.

Advisory Circular 70/7460-1K, Obstruction Marking and Lighting, describes the standards for marking and lighting of structures such as buildings, chimneys, antenna towers, cooling towers, storage tanks, supporting structures of overhead wires, etc. FAA  Order JO 7400.2k “Procedures for Handling Airspace Matters” (JO 7400.2k) specifies the procedures for use by all  FAA personnel in the joint administration of the airspace program, and in conducting aeronautical studies.

If an organization is planning to sponsor any construction or alterations of buildings, chimneys, antenna towers or other elevated structures which may affect navigable airspace, it must file a Notice of Proposed Construction or Alteration (FAA Form 7460-1) either electronically via a website or manually with the FAA.  

The FAA website describes the procedures and standards, and provides reports on the status of the aeronautical studies that may be triggered by the notice of construction or alteration provided by an organization. The FAA then performs the appropriate studies and determines whether the proposed construction is a Hazard to Navigation, and what actions need to be taken to ensure aeronautical safety. These can include re-routing aircraft, issuance of warnings to pilots, limitations on the height of construction or the inclusion of suitable lighting or other markings on the structure to warn aircraft.

As already described in an earlier posting, the FAA has a “Notice Criteria Tool” on its Obstruction Evaluation website to help sponsors determine whether they need to file a Notice of Proposed Construction for a project.  It is a simple screening tool, but it gives builders some idea of the issues they are going to have to deal with if they go ahead with a project. The website is a good place start to understand the FAA review process and gather information about the status of obstruction reviews.

Martin County Code Paragraph 4.794.A.5 states that the following documentation shall be provided: “Written technical documentation of any Federal Aviation Administration (FAA) approvals and lighting requirements and, if applicable, documentation of approval or denial of lighting and a statement whether an FAA "Determination of No Hazard to Aviation" is required by 47 C.F.R. part 17 for the tower. If such a determination is required, no building permit for the tower shall be issued until a copy of the determination is filed with the County.”

Sailfish Marina Telecommunications Towers

First Tower Proposal

DTI has tried to build its telecommunications tower on two separate sites within the Sailfish Marina.  The first one was proposed to be built within the old Finest Kind Marina, which was purchased by Sailfish Marina. When you enter the location and the height of this first proposed tower into the Notice Criteria Tool,  it says that “Your proposed structure exceeds an instrument approach area by 39 feet and aeronautical study is needed to determine if it will exceed a standard of Subpart C of 14CFRPart77.  The FAA, in accordance with 77.9, requests that you file.”

DTI filed the Notice for this proposed tower some time in 2013, and the FAA issued a Determination of No Hazard to Air Navigation (2013-ASO-1479-OE) on June 23, 2013. The Determination expired on December 25, 2014, and the FAA sent a notice of termination regarding this aeronautical study to DTI on January 20, 2015. 

Interestingly, the FAA archives have deleted all information related to this first Determination, and it no longer appears in their database. Therefore, it is not possible to determine exactly when DTI filed its Notice for the first tower. A search for this old Determination Letter on the OE (Obstruction Evaluation) website generates this response:  “Please enter a valid ASN. The ASN you requested was terminated and superseded by 2014-ASO-14030-OE. For additional information click here to  contact the appropriate representative.”  This takes you to a link for the Air Traffic State Contacts for Florida – Southern, and Mr. Michael Blaich . Mr. Blaich is the FAA specialist for Air Traffic for Southern Florida.  He is also the person who signed the second Determination of No Hazard discussed below.

Second Tower proposal

After its original proposed site was determined to be unsuitable, due to legal issues, DTI determined to build the tower on the other lot that makes up the Sailfish Marina. They submitted their application to Martin County on October 22, 2014, and included a copy of the FAA determination for the old site in the application.  Use of the Notice Criteria Tool  with the coordinates for the second tower results in the following:  “Your proposed structure exceeds an instrument approach area by 38 feet and aeronautical study is needed to determine if it will exceed a standard of Subpart C of 14CFRPart77.  The FAA, in accordance with 77.9, requests that you file.” The new location is about 100 yards to the Northeast of the original site.

It is curious that the FAA tool says that the original site was only one foot further into the Instrument approach area, even though it is about 300 feet farther away from the runway centerline.  This is an important point, which will be discussed in my next posting.

JO 7400.2k Section 6-1-2 states that “… a separate aeronautical study number must be assigned and a separate obstruction evaluation study must be conducted for:  a. Each site (location), structure (height), or sponsor. …” 

On December 22, 2014 DTI filed another Notice of Proposed Construction with the FAA, using the actual coordinates of the new tower site. On February 22, 2015, the Obstruction Evaluation website reported that the aeronautical study (for this Notice was a “Work in Progress”, with a “Work Schedule” date of May 1, 2015 to June 30, 2015.

The intervenors in this proceeding discovered this work schedule information on Feb 22, and communicated it to Martin County (MC) staff reviewers in the Growth Management Division early in the week of Feb. 23.  MC staff were not aware that there was no FAA determination letter – they had relied on the old one, which had expired and had been terminated. But DTI had not told them that the old determination had expired nor been terminated although they were informed in writing by FAA.

MC staff immediately contacted DTI, and informed them that it was imperative that they have an FAA determination before the scheduled meeting of MC Local Planning Agency on March 5.

Intervenors regularly visited the FAA website to check the status of the review, but nothing changed.  On March 4, MC staff informed intervenors that the applicant had replied to the MC project coordinator enquiries with a letter on February 25 that assured her that they had personally spoken to the FAA administration offices in Texas, and that 9 out of 10 of the FAA offices had approved the new location, and they (the FAA) would try to expedite the new FAA report by the end of the week (Feb 27).  DTI was able to say this within 24 hours after MC staff had heard that they were not scheduled to receive a Determination letter before the summer.

On March 5, as the intervenors were about to leave home for the Local Planning Agency Meeting, they checked the FAA web site one last time, and found that the Determination of No Hazard (2014-ASO-14030-OE) had been issued.  They printed it out to bring to the meeting.  When asked about this quick level of service at the Local Planning Agency meeting, the applicant stated that he had just asked nicely whether FAA could expedite his aeronautical study, and they kindly obliged, by moving it up in the queue by about 3 months.  One wonders what the other applicants in the queue for approval by the FAA would have to say about this practice…

This is a long and complicated tale which resumes in my next posting. There are unsettling questions about the FAA process and the Determination. Please stay tuned.