communication tower presented by: michael fitch safety and ... 3030 april slide deck.pdf ·...

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Communication TowerSafety and the Coming

OSHA Rulemaking

April 22, 2015

Presented by:Michael FitchSenior Counsel

[email protected] Rath

[email protected] Sarvadi

[email protected]



Michael T. N. Fitch

Michael Fitch is Senior Counsel in Keller and Heckman’s telecommunicationspractice group. Mr. Fitch has over 40 years of experience in wireless,international, infrastructure and other telecommunications regulatory areas,and he advises clients on a wide range of issues in these areas.

Mr. Fitch began his career at the Federal Communications Commission,where he advanced from staff attorney to Bureau Chief and Senior Legal andInternational Advisor to the Chairman. He also served as a PresidentialExchange Executive from the FCC to the Westinghouse Electric Corporationin Pittsburgh for one year. He moved to the U.S. Department of State, wherehe was an Office Director and Deputy Assistant Secretary of State in theCommunications and Information Policy Bureau. He led U.S. delegations toInmarsat, Intelsat, and International Telecommunication Union meetings.

Mr. Fitch then became the Vice President of Regulatory Affairs and SpectrumManagement at Hughes Communications, part of Hughes Electronics in LosAngeles.

When Hughes Space and Communications was acquired by Boeing, he continued his telecommunicationsresponsibilities as well as new programs involving Homeland Security. While at Boeing, he was VicePresident of the U.S. ITU Association.

From 2005-2012, he was President and CEO of PCIA – The Wireless Infrastructure Association. After PCIA,Fitch was a consultant on wireless, infrastructure, and technology matters. He is a member of the Board ofDirectors of the California Wireless Association and a Fellow in the Radio Club of America.

Michael FitchSenior Counsel

[email protected]



Manesh K. Rath

Manesh Rath is a partner in Keller and Heckman’s litigation and OSHApractice groups. He has been the lead amicus counsel on several casesbefore the U.S. Supreme Court including Staub v. Proctor Hospital and Vancev. Ball State University.

Mr. Rath is a co-author of three books in the fields of wage/hour law, laborand employment law, and OSHA law. On developing legal issues, he hasbeen quoted or interviewed in The Wall Street Journal, Bloomberg, SmartMoney magazine, Entrepreneur magazine, on "PBS's Nightly BusinessReport," WAVY-TV and C-SPAN. He was listed in Smart CEO Magazine'sReaders' Choice List of Legal Elite.

Mr. Rath has extensive experience representing industry in OSHArulemakings. He has successfully represented employers—including some ofthe largest in the country—in OSHA citations and investigations before federalOSHA in regions across the country and in state plan states.

Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business(NFIB) Small Business Legal Center. He served on the Society For Human Resources (SHRM) SpecialExpertise Panel for Safety and Health law for several years.He is the editor and co-author of the OSHA chapter of the Employment and Labor Law Audit (9th and 10th

Editions) and a co-author of the book Occupational Safety and Health Law Handbook (2001).

Manesh RathPartner

[email protected]



David G. Sarvadi

Mr. Sarvadi practices in the areas of occupational health and safety, toxicsubstance management, pesticide regulation, and product safety.

Mr. Sarvadi represents clients before a variety of federal and stateenforcement agencies in legal proceedings involving OSHA citations, EPANotice of Violations, TSCA consent orders, CPSC Notices, FIFRA StopSale Use and Removal Orders, and EEOC Charges of Discrimination. Heworks with clients in developing, reviewing, and auditing complianceprograms in all of these areas, and in obtaining agency rulings on proposedor novel activities and questions, seeking interpretations of regulations asthey apply to specific sets of facts. He has been counsel to the NationalCoalition on Ergonomics from its inception.

David SarvadiPartner

[email protected]

He has a background in occupational safety and health, having worked as an industrial hygienistfor more than 15 years and became a Certified Industrial Hygienist in 1978, a designation he helduntil he voluntarily relinquished it in 2010. Prior to becoming an attorney, he managed a corporateindustrial hygiene program for a Fortune 500 company. Mr. Sarvadi was selected by the NationalAcademy of Sciences to participate in a panel of the Institute of Medicine that was asked to reviewa NIOSH study on the use of respirators. He was asked to participate because of his expertise inlaw and industrial hygiene.



Agenda

Current communication tower landscape

Current safety regulations/standards

OSHA enforcement/inspections

OSHA Request for Information

What employers can do



Industry at a Glance

1980s:Communicat

ion towerwork is a

specializedfield

1990s:Proliferation of

cell phonesincreases

demand forworkers as

more towersare erected

2000s-present:Race for fastest

technology(iPhone, 3G, 4G)accelerates pace

and volume ofwork

Present: Lessmacro towerconstruction.More 4G LTEupgrades, DASand otherdensification

• 75,000 communication towers erected/serviced/maintained annually• 10,000 workers in the industry• 2013 fatalities: 13• 2014 (ytd) fatalities: 11



Quantified Usage Trends

Wireless lines continue to increase

• 6.4B in 2012; estimated 8.6B in 2025, a 34%increase in 13 years—ITU

Mobile data traffic will grow 7X from 2013-2019—Ericsson

Newer devices need more bandwidth

• Smart phones 600X, tablets 800X more datathan feature phones—Cisco

M2M: estimated 26B units by 2020—Gartner



Major Wireless Applications Coming--Not YetQuantified

Healthcare and accessibility

Transportation

Energy

Agriculture

Banking and finance

Education



Demand for Wireless Infrastructure

More wireless lines, users and devices

More data per user

New applications increase usage

New frequency bands require new antennas

Increased throughput requires cell splitting

Large and indoor venues have differentrequirements



Demand-Continued

Continuing major demand for wirelessinfrastructure of all types

• 4G upgrades

• Ubiquitous wireless broadband

• FirstNet

DAS and small cell boom

• $2.7B small cell market by 2015—InfoneticsResearch

Estimated $35B/year investment in wirelessbroadband—PCIA



A Wireless “G”eneration Every 10 Years

Zero G-post WWII: very few channels per community and

expensive

1G-1981: analog cellular, max 14.4 kbps

2G-1991: digital cellular, encryption, SMS, max 64 kbps

3G-2001: wireless Internet, video, circuit switching voice, packet

switching data, min. 200 kbps

4G-2012: packet switched, MIMO, IP telephony, gaming, high def.

mobile TV, high mobility data rates up to 100 Mbps

5G-circa 2020: the “tactile Internet”—real time mobile human-to-

machine and machine-to-machine, all IP, ultra-dense networks,

higher frequencies, cognitive radios, 10-100X user rates, 1000X

mobile data volume/area, 5X less E2E latency, massive MIMO &

M2M, ubiquitous reliable communications



Increased Diversity of Wireless Sites

Macro

Distributed Antenna System (DAS)

Small cell

Wi-Fi

Femtocell

Collocation where feasible, other existing

structures (rooftops, water towers, etc.) and new

builds



How Did We Get Here?

November

2013

OSHA sends letter to regional administrators instructingthem to inspect all active tower worksites within their

enforcement jurisdiction--OSHA seeks contact oversightinformation and all relevant contract documents

February

2014OSHA sends letter to communication tower industry

emphasizing importance of fall protection, proper training,and effective oversight

July

2014OSHA issues directive covering all hoisting of personnel to

or from work stations on communication towers

October

2014

OSHA and FCC hold tower safety workshop to discusspossible causes of recent accidents, potential solutions, and

to announce TIRAP program

April

2015OSHA releases Request for Information in anticipation of

tower safety rulemaking



What Are The Problems?

Hazards

• Fall• Electrical• Falling object• Equipment

Failure• Tower Collapse

• Fall• Electrical• Falling object• Equipment

Failure• Tower Collapse

Other Factors

• Inclementweather

• Difficult workingconditions• Long hours• Extensive travel

• Drugs/alcohol

• Inclementweather

• Difficult workingconditions• Long hours• Extensive travel

• Drugs/alcohol



How Do We Improve Safety?

• Easily followed• Specific methods of compliance

Clear standards

• Before work on live towers?• Controlled environments (e.g., nets?)

More extensivetraining

• Redesign of towers and antennaeInnovative

technologies

• Contractor qualifications• Explicit OSHA compliance provisions

Build safety intocontracts all alongcontracting chain



Current Regulations

General Industry (29 C.F.R. Part 1910) (OSHA)

• 1910.268 – Telecommunications

• 1910.132 – General Requirements: personal protective equipment

Construction Industry (29 C.F.R. Part 1926) (OSHA)

• 1926.104 – Safety belts, lifeline, and lanyards

• 1926.105 – Safety nets

• 1926 Subpart M – Duty to have fall protection, fall protection criteria, andtraining requirements

Occupational Health and Environmental Control (OSHA)

• 29 C.F.R. § 1910.97: Nonionizing radiation

Radiofrequency Exposure (FCC)

• FCC Office of Engineering and Technology (OET) Bulletin 65, Aug. 1997:Evaluating Compliance with FCC Guidelines for Human Exposure toRadiofrequency Electromagnetic Fields

• 47 C.F.R § 1.130 – Radiofrequency Radiation Exposure Limits



Current Standards

State Standards NC Communication Tower Standard MI Tower Safety Standard

National Association of Tower Erectors• Tower Climber Fall Protection Training Standard

(CTS)• Hoist Standard (members only)• www.natehome.org

Society of Professional Rope AccessTechnicians• www.sprat.org



Enforcement and Inspections

Multi-Employer Worksite Doctrine

• OSHA will cite owners/operators

• Liability determined by status1. Creating Did my employees create the hazard?

2. Exposing Any of my employees exposed?

3. Correcting Did my employees try to correct the condition?

4. Controlling Were my employees in a position to direct thecontractor employees to change their procedure?



Communication Tower Safety RFI

OSHA published request for information(RFI) on April 15, 2015

Requesting information on:• Types of hazards workers encounter;

• Types of incidents (fatal and non-fatal) that result;and

• Best methods to address these hazards

Comment period closes on June 15, 2015

Submit comments at www.regulations.gov• Docket No. OSHA-2014-0018



Rulemaking Process

Request for Information(RFI)• Used when Agency wants public input

on whether new rule or change toexisting rule is needed

• Comments help Agency chart coursefor rulemaking

Advanced Notice ofProposed Rulemaking(ANPRM)• Describes a regulatory action Agency

is considering and the underlyingissues

• Agency solicits public comments

Notice of ProposedRulemaking (NPRM)• Informs public that Agency is proposing a new

rule or revision• Provides public with the opportunity to publicly

comment on the proposal• Usually includes proposed regulatory text,

explanation of the basis and purpose of theproposed rule

Final Rule• Published to the Federal register

to provide public notice• Generally includes a preamble

that explains the basis of the rule,responds to public comments andcontains a variety of analysesrequired by statute and EO

• Generally take effect 30 daysafter publication



What a Proposed Rule Might Look Like

Based on OSHA’s recent correspondence:

• Separate transportation for workers,materials, and tools

• Greater coordination to limit access to towersite to authorized personnel only

• Reporting of “near-misses”

• More frequent equipment replacement

• Additional/more robust training (see TIRAP)



RFI Stakeholder Engagement is KEY

What’s in it for me?• Educate OSHA

• Correct mistaken Agency assumptions

• Influence rulemaking

Essential elements of effective comments:1. Factual estimates of cost

2. Detailed description of processes/practices,including understanding of contracting

3. Current safety practices

4. One’s own experiences



Next OSHA 30/30Please join us

at 1:00 PM Eastern U.S. Wednesday, May 20th , 2015www.khlaw.com/osha3030

The Employment Law Aftermath

Thursday, April 30th, 2015at 12:00 noon Eastern U.S.

Now in Webinar Only Format

www.khlaw.com/aftermath



Thank you!

Keller and Heckman LLP1001 G Street NW

Suite 500 WestWashington, DC 20001

(202) [email protected]

Please take a moment to fillout the survey on your screen.

Michael [email protected]

David [email protected]

Manesh [email protected]

communication tower presented by: michael fitch safety and ... 3030 april slide deck.pdf ·...

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