Owner should be proactive in addressing antenna issues.

The ownership and management of any property having antennas, particularly multiple antennas, located on the roof or on the side of the building such as cellular telephone antennas, Personal Communications System (PCS) digital antennas, pager system antennas, radio or television station antennas, microwave antennas or any other antennas on their building must be concerned with radio frequency radiation (RFR) issues. While it is not likely that the property owner will be exposed to liability arising from radio frequency radiation emissions, it is possible depending upon the roll of the property owner in dealing with these issues. Accordingly, proactive management of RFR issues is required.

The Federal Communications Commission regulates wireless transmission facilities that may result in human exposure to harmful radio frequency radiation. The FCC has adopted comprehensive regulations dealing with these issues. These regulations principally apply to the operators of the antennas. The regulations set radiation exposure limits which differ depending upon whether the area is "controlled" with access limited to persons trained to be aware of radio frequency radiation issues or "uncontrolled" and therefore with access open to the general public. The regulations also require signage notifying people of the hazards.

If a property owner has significant control over the antenna operator's ability to comply with FCC requirements, then the property owner could potentially be found liable under FCC regulations.

The FCC regulations adopted in 1996 required compliance by Sept. 1, 2000 with radio frequency radiation exposure guidelines for all wireless facilities. Unfortunately however, it is common knowledge that many facilities have not yet complied with the guidelines. These facilities have not completed the necessary testing to determine whether their facilities exceed the maximum permissible exposure limits or have not yet taken the necessary steps to cure exposure problems once they were discovered. The FCC is now embarking upon an aggressive campaign to enforce these guidelines. There has been no indication that the FCC will initiate enforcement action against property owners; however, this is possible.

* Background. The FCC regulates wireless facilities that may result in human exposure to harmful RFR. In 1996, the FCC adopted comprehensive regulations intended to specify the obligations of wireless licensees and manufacturers of certain wireless devices to comply with RER exposure guidelines. Those regulations apply to the actual operators of the Antennas which may be tenants under a lease or a sublessee, sub-licensee or permittee of a tenant.

Generally, the FCC's regulations state that licensees and applicants of certain types of wireless facilities must routinely assess their compliance with RER radiation exposure limits, which differ, depending on whether the RFR environment is "controlled" (i.e., access is limited to persons, such as technicians, who are theoretically aware of the potential for exposure) as is the case with the rooftops of most buildings containing antennas, or "uncontrolled" (i.e., access is open to the general public).

If, based on that assessment, the FCC's maximum permissible exposure ("MPE") limits for humans are exceeded, and the facilities cannot be brought into compliance, the applicant or licensee installing or operating an Antenna must prepare an environmental assessment ("EA") and submit that EA to the FCC. There are certain licensees and applicants for some types of facilities that are "categorically excluded" from routine evaluation of RFR compliance. These licensees and applicants are not excused from compliance with the FCC's exposure limits; they merely are not required to routinely assess their compliance.

It is likely that an FCC licensee that violates the FCC's RFR radiation exposure protection guidelines could expect to receive a severe monetary penalty, be subject to reporting requirements, and possibly face license revocation (if the violation was concealed from the FCC). The FCC's harshest punishments relate to rule violations that endanger the safety of the public.

In the case of multiple transmitter environments, these licensees or applicants (regardless of the fact that their own antenna might otherwise individually be categorically excluded or compliant) may be required to assist in bringing the entire site into compliance. For example, there are regulations concerning sites that become non-compliant with the addition of another licensee and different regulations concerning sites that are already non-compliant prior to the addition of another licensee. Essentially, any licensee whose RFR output comprises 5% or more of the total RFR output at a particular site is obligated to assist in the remediation and compliance efforts. This 5% level applies to the location at which the RFR exposure limits are exceeded. The FCC has stated that it will not regulate the precise manner in which multiple transmitter site RFR remediation efforts are resolved including, for example, how much each party contributes to expenses of remediation.

* Property Owner Obligations. Generally, antenna site structure owners have no responsibility for compliance with FCC RFR exposure regulations; that responsibility rests solely with the FCC licensees and applicants. In an August 1997 decision, the FCC specifically rejected arguments that site owners should be responsible for determining and ensuring compliance with RFR requirements. The FCC particularly pointed out in that decision that, because RER exposure from several buildings could cause non-compliance, it did not make sense for a building owner to be responsible for ensuring compliance when some of the RER energy could be generated by antennas not located on its building.

Nevertheless, the FCC also stated that "a site owner has significant control over applicants' and licensees' ability to comply with [the FCC's] RFR exposure requirements." The FCC noted that site owners could determine whether a licensee is permitted to erect a fence limiting access or a sign warning of RFR exposure dangers.