June 2011 News

Compliance Alert

FAA admits OE/AAA online Notice Criteria Tool “requests that you file” because it is incapable of determining Part 77 notice requirements.

Be Aware of New Changes to FAA Notice Criteria Tool – The newest update to the FAA’s Notice Criteria Tool (NCT) released on 23 June 2011 explicitly states the tool cannot accurately calculate notice requirements. Although the purpose of an aeronautical study is to determine a structure’s impact to the aeronautical environment, the tool’s new alert states that “an aeronautical study is needed to obtain the data” required to calculate part 77 notice requirements. The Notice Criteria Tool has moved from attempting to aid the public in determining whether or not notice to the FAA is required to requesting that its users file notice with the FAA so that it can determine whether or not notice should be required.

Project sponsors are now expected to initiate the 45+ day aeronautical study process so that the FAA can obtain and record the data needed to determine whether an aeronautical study should be conducted. Initially conceived to compute notice requirements for the public, the tool has instead provided false guidance to developers, resulting in millions of dollars revenue lost. Use of the tool is not required by law, however, tool users can be considered legally obligated to comply with tool-output notice requests, regardless of their validity.

Because it is incomplete and inaccurate, the oeaaa.faa.gov’s Notice Criteria Tool subjects the public sector to both overregulation and under regulation. The potential for online tools to make regulatory compliance more convenient by using automation to speed up tedious and time-consuming filing processes and complex calculations cannot be denied. Before such a tool can have any real validity and provide the public with the failsafe analysis that it deserves, the databases used by such tools must be accurate and complete and the algorithms applied must be logical.

All wireless companies and transmission and distribution providers are painfully familiar with the potential for incurring disastrous liabilities by failing to notify the FAA of the construction of a structure that meets the Title 14 Part 77.9 notice requirements. With the adoption of the new Part 77 on 18 January 2011, the FAA effectively relieved itself of its duty to provide the American public with factual criteria for meeting regulatory compliance requirements and placed all liability firmly on the shoulders of the overburdened private sector.

Overcautious developers may be intimidated enough by fines and litigation potential to file all structures that are remotely questionable with the FAA. The obvious drawback to this approach is that FAA aeronautical studies generally take a minimum of 45 days. Every day lost in any development project is an intolerable waste of precious resources. Projects become one-year behind schedule one day at a time. Delivery deadlines, construction and tax schedules, and commitments to clients cannot be met when unnecessary delays destroy developers’ ability to provide the services necessary to maintain and advance the energy and communication infrastructures that fuel every aspect of Americans’ personal and professional lives.

Part 77.9 requires notice “when requested by the FAA.” Such a broad and sweeping requirement is almost impossible to fulfill. The NCT returned from Thursday (06/23/2011) night’s scheduled offline system update with a new development in overregulation. NCT users may now receive the following message:

Your proposed structure is located within proximity to an airport for which the OEAAA source is not able to provide airport/runway data therefore this tool cannot calculate part 77 notice requirements and return a result. An aeronautical study is needed to obtain the data and evaluate a proposal. The FAA, in accordance with 77.9, requests that you file.

The FAA requests that you file

Although the interpretation of the law requires users of the NCT to file with the FAA when this message is returned, Federal law does not require that the NCT be used. The only way to avoid unnecessary filing is to avoid using the tool altogether. If one is not notified of the FAA’s unnecessary request and can prove that the structure in question does not actually require notice, the 45+ day delay needed for the FAA to update its Automated System Airport/Runway database is removed. How can this be done? Completely avoiding the NCT and using independent, non-government, quality-controlled proprietary databases and programs proven to provide accurate answers allows project sponsors to determine and comply with actual notice requirements. An “official” database simply means a government-produced database. The term “official” in no way relates to quality control of the database.

Both the Automated System Airport/Runway Database and the Digital Obstacle File used to evaluate the impact of proposed and existing structures are known to be error-ridden and incomplete. The public is not granted access to these databases. Out of approximately 23,850 records for landing facilities in the FAA Obstacle Evaluation Group (OEG)’s Automated System Airport Runway Database, approximately 18,029 facilities have runways; however, 11564 of these facilities with runways have no data regarding the runway location. The NCT’s new output indicates that rather than functioning to serve the taxpaying public, the tool is exploiting the information provided by users in order to identify incomplete or missing records so that the OEG can update its deficient official database. At the same time, the alert “The FAA requests that you file” introduces a minimum delay of 45 days into construction schedules. The misinformed public, it seems, has been made the unwitting quality control team for an errant tool whose inaccurate output continues to cost developers millions of dollars a year.

Nebulous requirements of the FAA bureaucracy are unnecessarily burdening the public. The Part 77.9 catch-all that filing is required “if requested by the FAA” must be eliminated until concrete and objective methodologies for determining conditions whereby the FAA would be warranted to request notice are established and published. The suggestion to use the tool available on the oeaaa.faa.gov portal should be eliminated until all databases are validated and a reasonable and reliable quality control system is implemented. The rubric for determining notice requirements should be published and available to the public without cost.

If you have any questions or concerns, please give our office a call at (321) 777-1266, or send us an email, airspace@airspaceusa.com, we would be happy to assist you.