Canadian Municipalities and the Regulation of Radio Antennae and their Support Structures (sf09386)

II. Introduction to Radio Antennae and their Support Structures

The radio spectrum

Radiocommunication is made possible when a transmitter converts an intelligible message into radio frequency and radiates a signal through an antenna. Depending on the directivity of the antenna, the signal may radiate in all directions at once (omnidirectional) or it may, by design, cancel signal in some directions and intensify it in others.^{Footnote 4} The signal travels or propagates through space via radio waves and at the point of reception another antenna collects the signal as electrical current. The current passes to a receiver which converts the energy into the original message. Communication devices and their antennae may be designed for one-way or two-way communication. The range of a radiocommunication is generally a function of the particular radio frequency used, the height of the antennae, the properties of the antennae employed, the power of the transmitter and the nature of the surrounding terrain. Of these factors, radio frequency is the most important determinant of the range for particular radiocommunications and, based upon the frequencies employed, the nature and siting of the antennae used will be very different.

Radio frequencies range from very low frequencies (VLF), at 3,000 waves or cycles per second (hertz) to extremely high frequency (EHF) at a high of 400 billion waves per second. The complete range of frequencies is called the radio frequency spectrum and government regulation of this precious resource in the public interest is called spectrum management. In its most general sense, spectrum management is interference^{Footnote 5} management. While co-ordinating its efforts internationally,the federal Department of Communications plans, authorizes, adjusts and polices the use of the radio spectrum for the orderly development of radiocommunications.^{Footnote 6} Because the spectrum is a sharedresource (shared domestically and internationally), these objectives charge the Department to attempt to maximize the total number of users of the spectrum while ensuring that each user suffers no greater radio interference than is considered permissible for each user's service category.

Frequencies and their use

As stated above, the critical determinant for the distance a radiocommunication travels is the frequency employed. Different frequency and antenna combinations will tend to concentrate signal skyward (skywave), directly outward (direct waves) or along the contours of the ground (groundwaves). Different frequencies behave very differently when they interact with the earth's atmosphere. Some travel through with little difficulty, some are badly affected by adverse weather conditions and some will be reflected back to earth (once or repeatedly) and, thereby, travel great distances across the surface of the earth. These natural propensities, when advantageous to radiocommunications, can be significantly enhanced by the type of antenna used and the circumstances surrounding their siting.

Table 1

Frequency Type	FrequencyFootnote 7 Range	Wave Length (at upper limit)	Range and Uses
VLF (very low)	3 kHz - 30 kHz	10 km	long range. Radionavigation and Marine
LF (low)	30-300 kHz	1 km	same as above
MF (mid)	300 kHz3 MHz	100 m	commonly used from 160-400 km (depending on power and atmospheric conditions). AM Radio, Amateur, Marine and Radionavigation
HF (high)	3 MHz30 MHz	10 m	commonly used from 320 to thousands of km (depending on power and atmospheric conditions). International communications, Short Wave, Amateur and Citizen BandFootnote 8
VHF (very high)	30 MHz300 MHz	1 m	from 16-80 km. VHF-TV, FM radio, Municipal Services,Footnote 9 Aeronautical, Amateur
UHF (ultra high)	300 MHz3 GHz	10 cm	up to 80 km. UHF-TV, Municipal Services, Commercial Common Carriers, Cellular Radio, Amateur
SHF (super high)	3 GHz- 30 GHz	1 cm	up to 80 km by direct wave or up to several thousand km if the signal goes via satellite.Footnote 10 Satellite, Terrestrial Microwave, Radar, Amateur
EHF (extremely high)	30 GHz- 300 GHz	1 mm	almost unlimited in space.Footnote 11 Satellite, Radar, Amateur, Radio Astronomy

Antenna site selection criteria

Other than the cost of a site which will be a function of its size, location and other market value determinants, there are a number of other factors which affect the selection of an antenna site.

1. Size requirements - these are a function of the type of antenna support structure used, the type of radio service the site is for and the antenna type.
   1. Support structure - many antennae are mounted on towers or other support structures designed for this purpose. Generally, the length and width of the site must be 20 to 25% of the height of an antenna if the structure is free-standing and between 50 to 80% of the height if the support structure is to be guyed down.^{Footnote 12}
   2. Service type - some radiocommunication services require very large sites due to the particular type of antenna required. For example, a short wave antenna for international broadcasting may require up to 500 acres of land.
   3. Directivity of signals - depending upon the frequency used, directional antenna can become quite elaborate, consequently increasing the site requirements. For example, a highly directional amateur antenna may need more and further spaced guy lines. Also, a highly directional AM radio antenna may require up to 12 independent antenna towers, each requiring many guy lines.^{Footnote 13}
2. Soil type - all radio antennae must be grounded to protect against a lightning stroke which could damage equipment and possibly set fire to structures nearby. If the soil is very rocky or for other reasons unconductive, the cost of the ground system can be prohibitive. Grounding is also critical for the generation and integrity of the radio signal for some radio services. For example, AM radio requires an extensive ground screen which may involve hundreds of cables which are buried just below the soil surface. For an AM broadcasting antenna location, the soil should have characteristics which are commonly found in good agricultural soil.
3. H.A.A.T. - height above average terrain is a critical site selection factor for the majority of radio services (those which rely on line-of-sight propagation). The signal will travel farther and suffer less obstruction when the antenna is mounted as high as practicable. Therefore, to avoid the cost of tall towers many antennae are sited on mountains and hills or atop existing structures like buildings or water towers. Also, radio signals generally will not pass through and most will not pass up and over obstructions, either man-made or natural. Therefore, a mountain located centrally to a large population may be a critical site as it will likely produce a tremendous signal shadow even if a tall tower is constructed elsewhere.^{Footnote 14}
4. Availability of electrical power - while some transmitters have in the past been operated by diesel power and some low power microwave stations can operate on solar power, antenna installations are almost invariably connected to electrical power. If power must be brought into the site, the cost for the siting can climb dramatically. Sites are selected with this in mind. Also, broadcasting transmitters often require three-phase power to provide adequate capacity to the system and to avoid background noise from the power itself. (This can be suppressed, but at a cost.)
5. All weather access road - for servicing antenna sites, but especially when constructing sizable support structures, a proper road is a necessity.^{Footnote 15} Due to the high cost of land and the construction and maintenance costs of such roads, sites are almost always acquired as close as possible to existing public roads.^{Footnote 16}
6. Future development of surrounding environs - many radio services are vulnerable to facilities and structures which may be located nearby subsequent to the construction of their own facilities. To illustrate, buildings and large amounts of metal will distort AM signal patterns, microwave relays can be cut off between towers and an electric power line corridor may cause substantial interference.^{Footnote 17}
7. Site landscaping - a site which is to support a free-standing or a guyed tower must be flat or the cost of engineering the support structure may make the site too expensive. For very large sites, preparation costs may exclude some sites from consideration.
8. Co-location with other radio services - generally, the transmitters and antennae of some radio services can be located in close proximity to each other while others may not - or may require expensive shields or filters. In fact, it is easier from a radio interference standpoint, to co-locate certain TV and FM facilities if their antennae are mounted on the same tower or support structure as opposed to one nearby.^{Footnote 18} On the other hand, there is great potential for harmful interference when certain FM radio facilities are located near aeronautical radio equipment at airports and such location arrangements are often avoided. Also, AM radio installations frequently must be located a good distance from each other.^{Footnote 19}
9. Airport height restrictions - the rules requiring the painting and lighting of antennae designated as possible aeronautical obstructions (to be discussed) substantially add to the cost of antenna installations, especially for large structures in close proximity to an airport.^{Footnote 20}
10. Land use planning restrictions - despite or because of the uncertainty of the legal status of provincial or municipal land use restrictions, which relate to radiocommunication facilities, the existence of such continues to be a site selection factor. Generally, engineering consultants recommend against siting extensive radio facilities in an area where land use restrictions expressly attempt to prohibit them. The cost and delay incurred and the bad publicity generated by a direct challenge to such regulations usually cause prudent individuals either to look for a site where the installation is expressly or by implication permitted, or to obey the requirements as set out.^{Footnote 21} Also, when radiocommunication installations involve the siting and construction of ancillary structures such as production studios or satellite teleport buildings,^{Footnote 22} there is little doubt that these structures can be regulated like any other building within a municipality. Therefore, restrictions which relate to such ancillary structures may discourage the siting of an antenna.

Antenna support structures

Supporting structures perform two purposes. First, quite obviously, they elevate and support the radiating element for a radiocommunication system. Second, they may also radiate signal themselves as is the case for AM radio towers.^{Footnote 23}

1. Types^{Footnote 24} - there are two principal types of supporting structures for radio antennae. They are the self-supporting type and the guyed mast type. Self-supporting towers are square, triangular or pyramidal in shape (viewed from cross-section). They may be constructed of tubular steel, steel lattice, reinforced concrete and, on occasion, wood.

   Guyed mast structures are made of tubular steel, latticed steel and (infrequently) aluminum. They are held in place by many guy wires. Although their central column may take far less space on the ground than a self-supporting tower, the guy lines require several acres of land to secure the structure.

2. Structure choice - the selection of one type of support structure, or one type of construction material, over another depends upon economic, technical and engineering factors.
   1. Economics - self-supporting towers are more expensive than the guyed variety and very costly when they exceed 95 meters in height. Reinforced concrete is the most expensive construction material with aluminum being the second most expensive.
   2. Site size - free-standing structures require much less land than guyed towers. In urban areas, the high cost of land and its general lack of availability may dictate the use of a self-supporting structure. In rural areas, a guyed tower becomes more practical.^{Footnote 25}
   3. Load and capacity - due to the weight of equipment, or the preponderance of antennae, a self-supporting structure with its stronger central column is often chosen over the guyed type.^{Footnote 26} For both of these reasons, the CN Tower in Toronto is free-standing and constructed of reinforced concrete.
   4. Aesthetics - the selection of type of structure and construction materials can effect how aesthetically disruptive or pleasing it is. A guyed tower is generally less obtrusive, at a distance, than is a free-standing one, with its larger base and bulkier members. On a number of occasions in Canada reinforced concrete, while admittedly bulkier, has been used because of the architectural possibilities it offers.^{Footnote 27}

Municipal concerns and antenna technology

Technological advances have made a rather limited response to the local issues being raised by municipalities in Canada. While certain aesthetic-related improvements have made some antennae less obtrusive and permitted others to be more easily co-located, developing technology and radio policy likely will give local governments more cause for complaint in the future.

1. Aesthetic improvements - there are at least four instances where recent advances in radio science can or will respond to local concerns.
   1. TVRO dish design - it is now possible (though more costly) to construct satellite dishes for residential areas which have a much flatter presentation. Some can be recessed into the roof of an existing structure and the latest design can be wall mounted and painted to match its background.^{Footnote 28} Also, for some time parabolic dishes fabricated of black wire mesh, which is far less obtrusive than solid materials in other colours, have been available on the market.
   2. Down-sizing of satellite dishes - when parabolic dishes were first used for satellite radiocommunications, they were thirty meters in diameter. The technology of higher frequencies and more powerful satellites has permitted the size of dishes to be dramatically reduced.^{Footnote 29} (But, this has also made them more affordable for business and home use.)
   3. Antennae multiplexing - advances in antenna technology, especially for land-mobile antennae, has permitted many antennae to be incorporated, hence co-located, into one piece of hardware. Up to 12 land-mobile systems can be accommodated on one multiplexed or multicoupled antenna and up to 20 can use one pair of these elements.
   4. Antenna combiners - improvements in radio electronics now permit several broadcasting transmitter signals to be combined and fed into one antenna. Under ideal conditions a number of FM and TV signals can be combined and a multiplicity of antenna towers and antennae can be avoided.
2. Technology and the prospects for more antennae - there is little doubt that the complaints recently expressed by local governments will continue to grow in number until some way is found to site antennae in a manner more sensitive to municipal interests. This is especially true if the number of complaints is proportional to the number of antennae sited. Changes in technology and radio policy will see a number of new services introduced which will cause a steady increase in the number of antennae within municipal boundaries.
   1. Expansion of the AM band - at a recent world radio conference it was agreed that the AM radio band would be expanded from 1605 to 1705 kHz. For Canada this will mean the possibility of 100 new AM stations of relatively low power. Presumably the siting of these antennae will begin as soon as receivers which can tune to these stations are commonly available.
   2. Cellular telephone - radio telephones which have ready access to the public-switched network are now available in a number of major Canadian cities.^{Footnote 30} This technology requires that a city be divided into a number of radio zones or cells, each with its own transmitter and antenna. In urban areas these rather bulky antennae are sited about 30-40 meters above the ground and a number of them are required to serve a major metropolitan area. Cellular corridors, like the one between Edmonton and Calgary and the one under construction between Windsor and Quebec City, permit access to the telephone network while travelling along or near to the main highway. A very real problem for rural municipal governments is that they must bear the undesirable aspects of antennae that are up to 125 meters high, yet their citizens will not likely be the ones with cellular phones in their vehicles.
   3. Satellite service developments - there are a number of changes anticipated for satellite services which will impact on local municipalities. First, with the launch of two ANIK E satellites by Telesat Canada in 1990, direct broadcasting via satellite will be available to citizens who possess a receiving dish which will be between 1 and 1.4 meters in diameter. Second, commercial use of satellite communications is likely to grow at an astounding rate. VSAT or Very Small Aperture Terminal, with their capacity to transmit large amounts of data, may soon be sited on many commercial and industrial buildings. ANIK E satellites will offer a number of telephone, video and data communication services to the business community. Private satellite networks for convenience store chains and car dealerships, for example, may see such antennae sited in close proximity to, or within, residential areas. Third, the construction of satellite teleports and radioports by Telesat Canada has meant an increase in satellite dish sitings and, in some cases, services which used to be located outside of major urban centres have now moved downtown to the radioport. Fourth, currently being discussed in Canada is the possibility of moving CBC onto the satellite ANIK C-1. This would mean that Canadian programming will be available on three Telesat satellites instead of two and most cable TV companies, and anyone else interested in receiving these programs, would need to site another dish on their property.^{Footnote 31}
   4. New broadcasting services - the Department of Communications and the CRTC are currently developing policy for a new broadcast-type^{Footnote 32} service using low power transmitters. These are called Multi-channel Multipoint Distribution Systems (MMDS) and Multipoint Distribution System (MDS). MMDS will permit a cable TV type of operation -- but without the cable.^{Footnote 33} From one location, using microwave frequencies, all 15 available MMDS TV channels can be transmitted to area homes. Such operations, planned for rural areas,^{Footnote 34} will involve one transmission antenna and a number of satellite and other antennae to receive the signals for distribution. MDS is similar to the system described above except that it transmits only one channel. It is anticipated that it will be used to transmit (or broadcast) specialty information services to commercial clients within a certain geographical location. Because they operate at microwave frequencies and broadly transmit their signals, such antennae will need to be centrally located at a high elevation above obstructions and the average terrain.

The federal authority over radio antennae in Canada

(a) Statutory authority

As stated in the introduction to this study, the spectrum management functions of the federal Department of Communications (DOC) require the department to plan, authorize, adjust and police the use of the radio frequency spectrum to ensure the orderly development of radiocommunications for the nation and to co-ordinate those efforts internationally. This involves, as a principal objective, maximizing the total number of legitimate users of the spectrum while controlling the radio interference each user may suffer. To achieve this objective, DOC must have jurisdiction over such things as: radio frequencies, bandwidth, emissions, and power and direction of the signal; time of operation and station identification; technical standards and other requirements for radio apparatus; antenna location, height, type and other properties; and, in some cases, operator proficiency. Spectrum management also involves issues of national defence,^{Footnote 35} sovereignty^{Footnote 36} and public policy (such as those related to national and cultural identity^{Footnote 37} and regional development).

To perform its spectrum management functions, the Department of Communications must possess the legal mandate to: enter into international^{Footnote 38} (bilateral and multilateral) and intra-national^{Footnote 39} (between DOC and other governments and agencies within Canada) agreements; control radio services with general and user-specific policy; enforce its policies through a system of inspections and prosecutions; and deploy the resources^{Footnote 40} necessary to achieve all of the above. The mandate to control radio services with general and user-specific policy is the one with which this section of the study is most concerned, especially as such control relates to antennae.

Spectrum management policy regarding the establishment and operation of a radio service or station is contained within the Radio Act,^{Footnote 41} its various regulations^{Footnote 42} and within a number of policy documents (which may or may not carry the force of law^{Footnote 43}). The enabling authority within the Radio Act to regulate the establishment of a radio station is divided between broadcasting and non-broadcasting stations.^{Footnote 44} To establish a broadcasting undertaking^{Footnote 45} one requires a Technical Construction and Operating Certificate (TC & OC) from the Department of Communications (and to commence delivering programs, a licence is required from the CRTC).^{Footnote 46} For all other licensed radiocommunication services, a licence is the principal authorization certificate. Sections 4(b)(i) and (ii) of the Radio Act state, in part:

The Minister may … issue …

1. licences in respect of radio stations … and
2. technical construction and operating certificates …

for such terms and subject to such conditions as he considers appropriate for ensuring the orderly development and operation of radiocommunications in Canada.

This section gives the Department a great amount of control over general policy related to radio service categories and/or specific control over an individual applicant for an authorization.^{Footnote 47} To establish, install, operate or possess a radio station without a valid licence or TC & OC is an offense under section 3 of the Act.^{Footnote 48}

For broadcasting undertakings the enabling authority is more specific in regards to ministerial control over the establishment of a station than for other types of radio service. Section 5 of the Act states:

The Minister shall regulate and control all technical matters relating to the planning for and construction and operation of broadcasting facilities and without limiting the generality of the foregoing, he shall:

(c) approve each site upon which radio apparatus, including antenna systems … may be located and approve the erection of all masts, towers and other antenna supporting structures.

Therefore, the preceding section gives the Minister of Communications substantial control over all technical matters relating to the construction of broadcasting facilities and their antenna system, its location and support structure or tower.

For control over antennae generally, enabling authority to make regulations is contained within section 7(e) of the Radio Act. It prescribes that:^{Footnote 49}

The Minister may make regulations:

(e) respecting the installation, erection, construction or repair of antennae for ratio stations and the appointment of inspectors for the enforcement and administration of such regulations …

Regulations promulgated under this act further specify the Minister's control over the establishment of broadcast and non-broadcast radiocommunication systems. For all antennae subject to an authorization process, section 12 of the General Radio Regulations, Part II provides for site-specific approval, and for control over the antenna system's support structures. It states:

12(1) No licence shall be granted for the installation and operation of a radio station unless the applicant has obtained the approval of the Minister for the proposed site and for the erection thereon, of masts, towers and other vertical structures related to the antenna system of the station; and the licensee shall, when required, paint and light any such structures, in accordance with the specifications approved by the Minister.

(2) No change of approved site, masts, towers and other vertical structures related to the antenna system of any such station shall be made without further approval by the Minister.

Control over the selection of a particular antenna system is provided for non-broadcasting antennae in section 14(1) of the General Radio Regulations, Part II:

14(1) No licence shall be granted for the installation and operation of a radio station unless the applicant has obtained the approval of the Minister for the radio apparatus including the antenna system …

For some reason, which is not immediately apparent, additional authority is specified for Ministerial control over the siting of antennae and over the support structures for private commercial broadcasting stations.^{Footnote 50} Section 117 of General Radio Regulations, Part II sets out these powers:

117 The transmitter and associated equipment shall be of standard design and shall conform to the best current engineering practice; and the transmitter and the location, type, height, painting and lighting of the antenna structure shall conform to the requirements prescribed by the Minister from time to time.

The Act and regulations contain only one provision dealing directly with Ministerial control over the antenna system of unlicensed radio stations.

Section 13(1) of the General Radio Regulations, Part II, and the Order^{Footnote 51} and Schedule^{Footnote 52} created pursuant to it, provide control (rather anomalously) over the structural adequacy and other engineering features of private antennae and support structures used for domestic receivers which are sited within 18 municipal districts in Canada.^{Footnote 53} The antennae subject to enumeration and regulation would include all external antennae sited at private residences for unlicensed receivers^{Footnote 54} (i.e. TV, radio, scanners and likely Television Receive Only (TVRO) dishes ).

As can be seen from the material cited above, pursuant to the Radio Act and the regulations made under it, the Department of Communications (and its immediate predecessor in radio regulation, the Department of Transport) has been vested with statutory jurisdiction and subordinate legislative authority over the construction, location, site approval, type approval, erection, repair and operation of radio antennae and the location, painting, lighting and engineering of antenna support structures in Canada.

The realities of federal antenna regulation

In order to provide direction on how municipal governments may regulate in a manner incidental to, or unrestrictive of, the federal authority's regulation of radio antennae, it is necessary to know what the federal government actually does regulate pursuant to the legislative authority provided to it.

1. Interference management - controlling the levels and sources of interference to and from radio devices is, and has always been, the most important and prominent feature of spectrum management for the federal government. While the Radio Act itself is surprisingly silent on the issue of interference management,^{Footnote 55} the various regulations created pursuant to it are replete with provisions and authority to control radio interference.^{Footnote 56} A case involving the tort of nuisance, currently on appeal to the Ontario Court of Appeal, may offer legal opinion on the degree of exclusivity of the federal government's jurisdiction to manage radio interference. In the case of Houghtby v. Ravenscroft,^{Footnote 57} an amateur radio operator was sued by his neighbour for an injunction and damages due to interference to the neighbour's radio and non-radio household devices^{Footnote 58} caused by the amateur's radio transmissions. One of the grounds stated in the appeal filed on behalf of the amateur is that, under the constitution, the federal government has exclusive jurisdiction over any interference caused by a radio operator.^{Footnote 59} To the extent that the court responds to this ground of appeal, spectrum management law will be written.

   On occasion, Canadian municipalities have created ordinances prohibiting or controlling radio interference.^{Footnote 60} There is only one known case where a local government attempted to enforce such a condition against a radio operator in Canada. The action was unsuccessful.^{Footnote 61}

2. Location of antennae - as a general statement, the use of land for the site of an antenna for a radio device in Canada is subject primarily to the private controls brought to bear by the owner of the land, but the federal government, through the jurisdiction of the Radio Act and the Aeronautics Act, has the power to veto any particular site selection. The Minister of Communications may refuse a site related to technical radio matters (ie. s.5(c) of the Radio Act) and under the new aviation legislation, the Minister of Transport may regulate structures which are potential aeronautical obstructions (Aeronautics Act, s.3.9(1)(o)).
3. Height of antennae -the Department of Communications, through the power delegated to the Minister of Communications, controls the height of radio antennae and structures which support them, to the extent that such control is necessary for spectrum efficiency and interference management. In many cases, if coordination of the particular radio service with other services is not a problem, the height of the antenna is of no concern to DOC.^{Footnote 62} Likely, an attempt to regulate height on grounds unrelated to spectrum management or aviation would be ultra vires the federal government's powers as currently set out.
4. Co-location of antennae - despite the fact that the Minister may grant or amend licences, "for such terms and subject to such conditions as he considers appropriate", the Department never orders current licensees to accommodate new applicants on their tower or at their site. On occasion, two or more new licensees have been given an authorization to construct on the condition that they accommodate each other at a common site. This has occurred very rarely and only when interference management or spectrum efficiency demands it.^{Footnote 63} Co-siting has never been ordered for aesthetic reasons.
5. Safety regulations - there are three principal areas of regulation which involve the safety of antennae: (1) radio frequency emission control for human exposure; (2) aeronautical obstruction painting and marking; (3) structural and electrical regulation.
   1. RF emission exposure limits - in 1979, the Department of National Health and Welfare published Safety Code 6^{Footnote 64} which limits RF exposure in an occupational setting to a maximum amount averaged over one minute and one hour.^{Footnote 65} These exposure limits do not have the status of law, consequently they are merely guidance for the occupational environment. These standards are not intended to offer protection to those who are exposed to RF energy while in their homes. Currently, DOC is considering incorporating these standards into the broadcasting authorization process.^{Footnote 66}
   2. Aeronautical obstruction regulation - for a number of years the authority to require the painting (orange and white bands) and lighting (red and/or white flashing lights) of communications towers was contained in two provisions within the General Radio Regulations, Part II.^{Footnote 67} Prospective licensees were directed to send one part of their application form^{Footnote 68} to Transport Canada for a ruling. Under the new Aeronautics Act^{Footnote 69}and the regulations^{Footnote 70} passed thereunder, authority now clearly rests with Transport Canada for all aeronautical obstructions and DOC currently plans to rescind the parts of its regulations dealing with painting and lighting requirements.^{Footnote 71}
   3. Structural and electrical regulation - since shortly after World War II, the Canadian Standards Association (False) has been creating and publishing structural and electrical standards for communication antennae supporting structures. These standards have no force of law when issued and are offered as a guide to industry action. For a number of years, the False standard S-37 (as updated over time), which applies to most (all but the smallest^{Footnote 72}) support structures, has been incorporated into the authorization process for a TC & OC (broadcasting undertakings). DOC procedures have required that a "Structural Adequacy" form^{Footnote 73} be filed when a new support structure is to be constructed and when additional loading is to be added to an existing broadcasting antenna tower. The current form requires that the support structure meet the 1976 standard, False STD S-37-1976. No other antennae or support structures are regulated by the federal government for the integrity of their engineering. The general application form for licensed antennae does not enquire about structural adequacy^{Footnote 74}and unlicensed antennae have no authorization process with which to demand any details of the antenna system to be constructed.

      There appear to be historical, technical and legal problems which have complicated DOC efforts to better and more comprehensively regulate the structural adequacy of antennae and their supporting structures. The first and foremost difficulty is that the current Radio Act does not supply clear enabling authority over technical issues which are not related to radiocommunication (ie. structural safety, especially for non-broadcasting antennae).^{Footnote 75}The second problem is that the False does not have a current standard for smaller support tower applications.^{Footnote 76}The third complication involves the cost of modifying existing structures. When an applicant wishes to add another antenna to an existing broadcasting antenna support structure the question becomes: which technical standard must the structure meet? The False standards were made more stringent in 1965 (S37-1965), 1976 (S37-1976) and 1986 (S37-M86). Of the broadcasting antennae currently standing, a few antennae would not meet the 1965 standard, some would not pass the 1976 requirement and a great number would not meet the 1986 standard without very expensive modifications. If an 'upgrade' policy were rigorously applied, it would be the CBC and its affiliates which would have the greatest and most expensive compliance problem. The majority of those broadcasting towers pre-date current standards.

      As a consequence of all of these problems, less than two percent of all licensed antennae (broadcasting structures only) are regulated by the federal government for structural adequacy and under current DOC policy and practice electrical safety and the structural standards are not consistently applied to those which are regulated.^{Footnote 77}

      As far as provincial structural regulation is concerned the Ontario Building Code, until it was quietly dropped from the current edition, required the 1976 False standard for all large antennae.

6. Aesthetics -clearly, the discretion contained within the Radio Act regarding the authorization process, relate to the technical, as opposed to the aesthetic, impact of a proposal to erect an antenna or support structure. Accordingly, any requirements to: engineer the support structure, site an antenna in a particular manner, or require screening, with fences or natural vegetation, to achieve an aesthetic purpose, would be ultra vires the Act. Be that as it may, aesthetic regulation of domestic receiving antennae was attempted in Canada in the mid-1950's. Disguised as technical and safety controls, it lasted for about a decade.

   Even prior to the introduction of television to Canada in September of 1952, there were thousands of externally-mounted TV receiving antennae in this country picking up signals from the U.S.A. As more channels became available on each side of the border more and more external antennae and supporting structures, often of a home-made variety, kept appearing. Many complained that they were very unsightly.^{Footnote 78}Municipalities started to complain to the federal regulator of the day, the Department of Transport. Some local governments tried to regulate TV antennae themselves with licensing standards and authorization fees.^{Footnote 79}

   In response, amendments to the Radio Act and to the General Radio Regulations, Part II created and brought into force a great number of engineering standards which were designed to rationalize and standardize TV receiving antennae and their supporting structures and discourage do-it-yourself fabrications.^{Footnote 80} Municipal officials were appointed as inspectors under the new rules for those municipalities which chose to opt in to the scheme. Only about 18 chose to do so and as cable service became more available, the number of external antennae diminished and the scheme was all but forgotten about.^{Footnote 81}

7. Environmental impact - in Canada today, no environmental legislation^{Footnote 82}and no provision in the current Radio Act enables the Department of Communications to deny or modify an application for an antenna or support structure due to the environmental impact of the proposed action. At the federal level there exist some guidelines with respect to how federal activities may affect certain lands, called the Federal Policy on Land Use.^{Footnote 83} The guidelines apply to lands of historic, agricultural, recreational, aesthetic or ecological importance and encourage federal departments and agencies to consider the impact of their own actions and of their authorization processes. The legal status of these policies is that they are merely guidelines and they could not, in of themselves, create a discretion to refuse an application for an antenna. This is unfortunate for municipalities as policy 5.10 specifically requires:^{Footnote 84}

   Local, regional and provincial concerns, plans and zoning will be considered, and appropriate action will be taken to ensure that the federal influence on land and local environments has a positive impact.

   Despite a lack of clear enabling authority to take environmental impact into account when antennae are located and erected, one should not be left with the impression that such is never the case. First, in the past few years it has become increasingly more common for private citizen groups and municipal governments to attend CRTC hearings for broadcasting licences and object to the grant of the licence based upon the environmental impact of the transmitter and its tower(s). The objections have ranged from ecological concerns to the visual disruption (and even psychological disruption) caused by the tower(s) and flashing lights. For the most part, CRTC members have merely permitted these objections to be aired and put on the record.^{Footnote 85}

   Second, because the ownership of a great percentage of land in Canada is vested with public authorities - municipal, provincial and federal, governments and their agents have used control over the sale or lease of public lands as a method of taking environmental impact into account when radio antennae are to be sited upon them. For example, between 1975 and 1980, Parks Canada objected to an application by Northwestel to site a microwave relay station within the bounds of Wood Buffalo National Park in the Northwest Territories. This refusal was due to concern for the potential impact of the radio energy and tower guy lines on the whooping cranes, known to nest there.^{Footnote 86}

   In June of this year, the Ontario Municipal Board was used as a public forum to air and consider the objections of nine cottagers who protested the siting of a 380 meter TV transmission tower for Global Communications on provincial land.^{Footnote 87} The objectors, all of whom owned recreational property near to the proposed transmission site, argued that development of the land for this purpose would have an environmental impact on the natural habitat of the area and pose a risk to birds which may fly into the tower or its guy lines at night.

8. Consonance with local planning - a very recent policy initiative by the CRTC - to require applicants for broadcasting licences to do their best to secure the assent of the local municipality for the siting of their transmitter and tower(s) -should be mentioned and analysed. In Decision CRTC 87-376,^{Footnote 88} issued June 2, 1987, the CRTC granted a broadcasting licence to Westcom Radio Group for CFGM Richmond Hill to broadcast from a transmitter site to be located in the Town of Lincoln, Ontario (near Beamsville). The proposed AM broadcasting undertaking requires eight transmission towers, each 91 meters high, which will be sited on 80 acres of specialty farmland. In combination, the existing local and regional municipal land use laws do not permit the land to be developed in this manner.

   In the decision referred to above, the CRTC approved the broadcasting licence, but made it conditional upon the applicant supplying proof that, "it has satisfied the zoning and land use requirements".^{Footnote 89} For all future cases, the Decision went on to state:^{Footnote 90}

   "Moreover, the Commission expects that, as a matter of policy, applicants will have advised local authorities of their plans for siting of transmission towers and will have made every reasonable effort to meet local requirements. The Commission will expect these areas to be formerly addressed when applications are submitted."

   It is submitted that the policy contained within Decision CRTC 87-376 does not provide sufficient protection for local interests - neither in the particular case nor for future broadcasting applications before the CRTC In this particular case, the Commission appears to have required Westcom Radio Group to obtain local approval before it can broadcast from the site. When this condition is read in the context of the entire decision, in reality, the broadcaster's obligations are: to do what is feasible within twelve months of the decision to meet the reasonable requirements of the municipality. What makes such a condition unworkable is that the Council and citizens of the Town of Lincoln have at all times insisted that these towers must go elsewhere and that no accommodation by the broadcaster would make the proposal acceptable.^{Footnote 91} The reason that this policy may be of little assistance in the future is because there appears to be no enabling authority in the CRTC Act^{Footnote 92} or Broadcasting Act^{Footnote 93} to support it.

   As the material previously discussed demonstrates, there are many aspects of the health, safety and aesthetics of radio antennae and their support structures which the federal government does not regulate. Many of the aspects, not subject to federal control, are of immediate concern to Canadian municipalities. Constitutional Law must be examined to see how municipalities may be legally permitted to regulate on the absence of, or concurrently to, federal powers and policies in this area.