On April 15, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a Request for Information (RFI) on Communication Tower Safety. The agency requests that the communication tower industry and the general public send in comments and information by June 15, 2015, about the hazards and safety issues for employees working on communication towers.
The RFI expresses particular concern over the relatively-high number of fatalities in the communication tower industry, which comprises the tower structures that carry antennas and equipment for wireless, cellular, television, and radio communications. From 2003 through 2013, the industry had 107 incidents, of which 91 were fatalities. Seventy-nine fatalities and 13 non-fatal incidents were attributable to falls.
After a 2012 PBS documentary highlighted the issue and after 13 fatality cases occurred in 2013, OSHA released an open letter to the communication tower industry in February of 2014 urging the industry to take extra steps to protect tower climbers, specifically pointing out fall protection training and use of effective equipment, among other tower safety issues.
The industry has made efforts to reduce incident and fatality rates. Notably, the National Association of Tower Erectors (NATE), an industry trade association, has published industry standards for tower climbing, hazard recognition guides, and checklists for safety equipment and contractor qualifications, as well as several other resources. But, according to OSHA, the industry’s fatality rate remains high—agency statistics indicate the industry had 11 fatality cases in 2014. . . hence the RFI.
The RFI focuses on cellular and wireless towers, which make up a majority of the communication towers in the country. OSHA mentions the “complex business relationships” among cellular and wireless industry members. The major carriers generally do not perform work on towers; often they do not even own the towers that carry their equipment. Instead, typically a tower company owns the tower itself and leases space on the tower to a carrier. Equipment frequently needs to be upgraded, repaired, or replaced, due to the nation’s ever-growing demand for broadband and faster wireless speed. Carriers generally hire management companies or “turf vendors” to coordinate the work. These companies hire subcontractors that employ the tower climbers who actually perform the work.
“This business structure poses challenges to setting and enforcing safety rules and ensuring the well-being of employees,” OSHA notes in the RFI. The agency could attempt to assert enforcement authority over all industry members under OSHA’s controversial Multi-Employer Citation Policy (MEP). But Jordan Barab, Deputy Assistant Secretary of Labor for Occupational Safety and Health (and the number two person at OSHA), told PBS that OSHA would have difficulty applying the MEP to carriers and others not present when work is being done at towers:
[The MEP is] very restrictive in terms of the legal requirements for using and employing Multi-Employer. Again, generally it’s only useful when you actually have somebody at the site that actually is witnessing and has some control over the actual working conditions at the site.
The RFI poses 38 questions to the industry, OSHA first asks tower climber employees about their work and their perceptions on the ability to perform their work safely. OSHA also inquires about training and certification requirements and availability and physical suitability for the work. The agency dedicates a large portion of the RFI to queries about common hazards and incidents, focusing on falls and other potential hazards, such as hosting materials and personnel, radio frequency hazards, inclement weather, and worker fatigue.
The RFI also seeks information about contracting and oversight, looking to examine “ways in which the multi-leveled contracting environment . . . impacts employee safety at communication tower worksites,” and practices that might “encourage communication and coordination” among the levels of industry members. Some may perceive this as a ploy by OSHA to increase carriers’ responsibility for its contractors and to allow the agency to impose citations to carriers under the MEP. The RFI concludes by asking about economic issues, tower design, and regulatory and non-regulatory approaches.
OSHA will likely use the information received from the RFI to plan a proposed rule for the communication towers industry. Two states—North Carolina and Michigan—already have communication tower regulations. North Carolina’s regulation formally adopts a buddy system requiring no more than two employees at a work site whenever the work involves climbing or any fall hazard of six feet or greater. Neither state imposes multi-employer liability for communication tower safety.
John F. Martin is a shareholder in the Washington, D.C. office of Ogletree Deakins.
