WASHINGTON-As the Occupational Safety and Health Administration prepares to launch a new tower safety program aimed at curbing increased injuries and fatalities that have accompanied phenomenal wireless growth during the past decade, the agency is struggling with how to deal with a gaping loophole in the law that exempts mobile-phone carriers, tower owners and real estate companies from legal liability when accidents occur.
OSHA, alarmed with the spike in the number of tower-related deaths and injuries but legally constrained in its ability to address the problem, wants to combine enforcement with an industry outreach to emphasize safety.
Within weeks, OSHA director Charles Jeffress plans to write tower owners and possibly mobile-phone operators on the safety issue. In the letters, Jeffress is expected to encourage companies to work with reputable construction companies and urge them to include health and safety requirements in tower construction contracts.
While OSHA has slapped a slew of construction firms with fines in recent years, the agency now believes enforcement alone is not enough. One reason for that is OSHA’s enforcement jurisdiction is narrowly proscribed by the Occupational Safety and Health Act of 1970. The law limits OSHA’s oversight to `employers of employees.’
Because many of the nation’s towers have been acquired by tower management companies, mobile-phone carriers are free from liability resulting from tower accidents. But even those carriers that still own towers-operators like AT&T Wireless, Sprint PCS and Alltel Communications Inc.-are shielded from liability for tower accidents so long as tower construction is outsourced.
That might explain why the wireless industry has been silent on tower safety. The Cellular Telecommunications & Internet Association says tower safety is not an issue for the trade group, but rather for individual companies.
Mobile-phone service operators are not the only ones off the hook when it comes to tower safety liability. It turns out the nation’s top tower firms-American Tower, Crown Castle USA, SpectraSite and Pinnacle Towers-also are free of liability so long as tower construction is contracted to third parties. The courts have tended to side with tower owners in litigation involving tower accidents.
“It’s a philosophical issue I don’t think was considered when the OSHA Act was written,” said H. Berrien Zettler, deputy director for the directorate of construction at OSHA, in a lengthy phone interview with RCR Wireless News last week.
Zettler said the loophole in the law has been highlighted in OSHA testimony before Congress, but lawmakers have declined to take action. “We often point out we don’t have jurisdiction over owners,” said Zettler. Zettler said tower owners and mobile-phone carriers no doubt would oppose any changes to OSHA that would make them responsible for safety of tower workers.
There have been at least 118 deaths and scores of tower-related injuries-mostly from falls-in recent years. The increase in injuries and fatalities-which are occurring at a rate that eclipses any other U.S. industry-coincides with the massive growth of wireless communications during the 1990s.
“Yes, we do require that our contractors comply with all federal, state and local safety regulations and we especially reference OSHA’s rules. We really welcome any further guidance that OSHA might be able to provide in this particular area,” said Sheldon Moss, director of government relations for Crown Castle.
American Tower, Pinnacle, SpectraSite and Sprint Sites USA did not return calls for comment.
OSHA has been working with the National Association of Tower Erectors to promote safety. The two groups are close to formalizing a partnership to that end.
As the demand increases for wireless devices-including Internet-ready phones-and more Federal Communications Commission licenses are auctioned off in coming years, the construction of towers will continue.
Today, competition among tower companies is as fierce as competition among mobile-phone carriers, with many companies in both sectors highly leveraged and looking to cut costs. All that has OSHA regulators worried.
OSHA, hamstrung by narrow enforcement ability, is hoping a moral argument on behalf of safety will prove effective. “It’s really a matter of persuasion to get people to see it’s [safety] the right think to do,” said Zettler.
Zettler said the number of deaths and injuries are “too high for us to ignore. Our attention to this was raised by the huge number of towers that would be built,” he said. “We were concerned some of these people don’t have long-term experience to help us address the health and safety issue.”
At the same time, however, Zettler conceded, “We are trying to swim upstream.”
