The Towering Imbroglio

Who let them build that tower there?

September 1, 1992

It's the sort of thing you don't give much thought to until you're flying low, in unfamiliar territory, maybe under a low ceiling. That's when you truly start to scrutinize that sectional chart, searching for the little blue tepees that signify a tower on your route. The taller symbols, resembling miniature Eiffel towers, really get your attention. They're the ones that represent towers that jut up more than 1,000 feet agl.

We've all seen them — heaven-kissing structures that seem designed to ensnare unsuspecting aircraft. Sure, it is our responsibility as pilots in command to know where obstructions are and to avoid them. But sometimes you have to wonder, why did the FAA allow them to build that tower there?

In fact, the Federal Aviation Administration may not have a heck of a lot to say about it. Federal Aviation Regulations require that anyone planning to erect a structure potentially affecting navigable airspace (higher than 200 feet agl or next to an airport) must notify the FAA. The FAA then studies the proposed construction to determine if it will present a hazard to air navigation. But there's a catch: While FAA officials may require tall structure sponsors to notify them of their plans, the agency has no enforcement authority. Even if the FAA determines that a planned tower or skyscraper will be hazardous to aviation, the builder may be able to go ahead and erect the structure anyway. Although FAA has influence with the Federal Communications Commission when it comes to the issuance of transmission tower licenses, the FCC is under no regulatory requirement to go along with the FAA's wishes. On the tall-tower issue, the FAA is the proverbial toothless watchdog.

AOPA hopes to change that. The association is involved in an ongoing campaign to strengthen the FAA's ability to regulate airplane-catching structures. The association hopes to improve federal regulations in two ways: Give the FAA the authority to prohibit construction of a tall structure near an airport if it exceeds specified parameters that would affect the utility of the airport, and allow the FAA to be more specific in determinations of hazard. Hazards would be defined as dangerous to VFR or IFR traffic, or to instrument approaches, for example. The way it works now, the agency either determines that, yes, a structure would present a hazard, or no, it would not.

Representatives of AOPA also organized and participated in an industry tall-structures committee. The committee made recommendations to the FAA on revising its tall-structures evaluation procedures. Among these were proposed revisions to the FAA's handbook on the subject, Procedures for Handling Airspace Matters. Included in the suggestions were increased user input into airspace and obstruction matters; a decrease from 2,000 feet agl to 1,000 feet agl in the height of proposed structures that get enhanced scrutiny; and charting of new towers when construction begins to avoid a lag in charting and reliance upon notams to advise pilots of new hazards to air navigation.

On the state level, AOPA is working with legislatures to improve existing laws and establish new ones limiting the construction of tall structures that would be dangerous to aviation. The association also is encouraging local governments to establish ordinances and land-use codes that protect navigable airspace — especially around airports.

The federal regulations represent minimum standards. Local and state laws are not superseded by the federal regulations. In cases where states and local governments have adopted aggressive laws governing tall structures, the construction of looming towers and buildings dangerous to aviation has been successfully limited.

On the personal level, pilots and local aviation groups can get involved by increasing the visibility of the tall-towers issue. Promote the economic value and usefulness of the local airport. Contact local and state officials, encouraging them to enact stringent laws governing tall structures.

Pilots should also try to keep informed about any tall structures proposed in their areas. Although the FAA does not notify individual pilots of ongoing tall-structure reviews, the agency is obliged to send a notification to the nearest public-use airport, with a request that the announcement be posted. The notice will include an address where public comments may be sent. Check the bulletin board at the local airport. Ask around.

Say you do hear about a proposed tall-structure review in your neck of the woods. What should you do?

"React," says one tall-towers expert in the AOPA Government and Technical Affairs Division. "Send in your comments [to the FAA]. There really is a live human being in there who reads every single comment."

When reading the comments, FAA officials look for valid aeronautical safety concerns that they may not be aware of. Sheer numbers of negative comments — such as petitions — hold little sway in the evaluation process.

Although the tall-towers issue may be a rather low-profile one among the many considerations facing general aviation, it still is a valid safety concern deserving of attention. Between 1968 and 1978, there were 28 accidents involving tall towers, including 17 fatal crashes in which 88 people lost their lives.

When a proposed tower becomes controversial, it doesn't take long for the issue to get complicated. And a resolution of any potential problems can take awhile. One example is a television transmission tower planned for construction in Astico, Wisconsin.

The Astico tower, first proposed in 1986 by Skycom of Lake Forest, Illinois, gained some attention in aviation circles for a variety of reasons. Not the least of these was that the tower would stick up 2,000 feet agl in an area that sees heavy low-level VFR arrival and departure traffic during the annual Experimental Aircraft Association Fly-in Convention in Oshkosh.

Skycom wanted a tall tower in that location to serve television markets in Milwaukee, Madison, and the Fox River Valley.

The FAA circulated a notice of its obstruction study in September 1986. In all, 48 letters of objection were received by the FAA's Great Lakes Region. Later that September, the agency determined that the tower would exceed FAA obstruction standards, mainly because the structure would result in the loss of the 3,000-foot IFR cardinal altitude along airway V170.

In March 1987, after negotiations with the agency, Skycom notified the FAA that it would agree to reduce the height of the tower to 1,706 feet agl. That would avoid the loss of the 3,000-foot cardinal altitude. In July, the FAA issued a "Determination of No Hazard to Air Navigation" for the tower.

Although the Oshkosh traffic could comprise thousands of flights during the week-long convention, it did not meet the FAA criterion for high impact upon flight operations. That criterion calls for at least three flights per day, on a "regular and continuing" basis, throughout the year.

Meanwhile, Skycom had applied in June 1987 to the Wisconsin Department of Transportation Bureau of Aeronautics for a required state permit. In January 1989, after ongoing discussions and negotiations between the aeronautics bureau and the builder, the permit was denied. The bureau denied the permit for several reasons:

  • The tower would adversely impact VFR flights, especially during the Oshkosh convention.
  • It would adversely impact IFR flights.
  • The tower also would have an adverse impact on aircraft departing from Dodge County Airport.

In February 1989, Skycom requested a hearing on the permit denial, and in March, the aeronautics bureau forwarded the request to the office of the commissioner of transportation. A hearing was scheduled for July of that year.

The bureau, meantime, petitioned the FAA to reconsider its "no hazard" finding. The petition for reconsideration was granted, but in August, the FAA Great Lakes Region reaffirmed its determination of no hazard. In September, the bureau filed a petition with the FAA's obstructions branch in Washington, D.C., requesting reconsideration of the Great Lakes decision. That petition was denied.

After the hearing at the state commissioner of transportation's office, the hearing officer issued a proposed decision in December 1989. It said, in effect, that the proposed Astico tower would not have a serious adverse impact on air navigation. In January, the hearing officer's findings were adopted by the commissioner of transportation, and the aeronautics bureau was ordered to issue a permit for the tower.

The bureau appealed to the local circuit court in February 1990 for judicial review of the commissioner's decision. In August 1990, the court rejected the bureau's arguments and reaffirmed the decision of the commissioner.

There have been additional negotiations between the builder and aviation officials at the state and federal level, including a request from the FAA for additional lighting on the tower. Erection of the structure has not yet been started. But despite the objections over the years, including ongoing protests from AOPA and EAA, nothing now appears to stand in the way of construction of the tower.

The moral, if there is one, is that such cases can be far from clear-cut. Although the FAA has no direct authority over tall structures, its determination of hazard or no-hazard can be a useful tool both for proponents and opponents. The agency can have a strong indirect influence.

The tall-structures issue is a rare one in which product liability considerations may actually play in favor of general aviation. If the FAA determines a tower will be hazardous and the sponsor goes ahead and builds it anyway, the owner must recognize the threat of great liability exposure if an aviation accident should occur.

An example of that concern came about as a result of AOPA's recent successful fight against the construction of an eight-story building just north of National Airport in Washington, D.C. The FAA issued a determination of hazard for the proposed structure in 1990. Although the developer had about $20 million invested in the project, he couldn't get insurance for it after the determination of hazard. Construction was never started.

Every tall-towers case is unique, and the outcome can depend as much upon the locals laws and circumstances as the federal regulations. For more background on the air obstructions issue and information to help you get involved in any local tall-tower proposals, call the AOPA Member Services Division at 800/USA-AOPA (872-2672). Trained membership specialists will be available to offer advice on your local situation.