Canadian Municipalities and the Regulation of Radio Antennae and their Support Structures (sf09389)

Footnotes

  1. 1 Both domestic and international law define radio or radiocommunication in these terms. See: Radio Act, R.S.C. 1970 c.R-1 s.2(1) and International Telecommunication Union, General Regulations, c.1 Art.1 ss.1.3 and 1.4.
  2. 2 While the issue is not truly within the scope of this study, it should be noted that, on occasion, those who own and operate radio antennae have complained that municipal planning has been undertaken without sufficient regard to the impact the local authorization process will have upon the operative capacity of the existing radio facility. As will be explained within this project (infra p. 7) some radio facilities are quite vulnerable to future development which can disrupt or obstruct radio signals. When such has occurred in the past, municipal officials have not been sensitive to the plight of the radio operator. For example, when the Ontario Municipal Board (OMB) was holding public hearings on extensive changes to the official plan for the City of Oakville, Ontario the existing AM radio broadcasting facility (CHWO Radio Station and CJMR Community Broadcasting) attempted to tender evidence about the resulting disruption to their signal, but their evidence was ruled out of order. The OMB chairman stated that only land use planning issues would be considered. The general facts surrounding the amendment of Oakville's official plan can be found in, Re Oakville Planning Area Official Plan, Amendments 28, 31 and 32 (1979), 9 O.M.B.R. 412.
  3. 3 For example, the technical, legal and political issues which surround the siting and operation of an external (off-air) television receiving antenna, pale in significance to those related to the broadcast antenna and support structure which is needed to transmit an appropriate television signal. If the broadcaster is a member of the CBC television network, certain of these issues may take on more significance.
  4. 4 Both transmitting and receiving antennae may be directional. In Canada, over 70% of the transmitting antennae used for AM radio broadcasting have directional properties. An example of a directional receiving antenna is the yagi type used for off-air colour TV reception. It resembles a flat fish-bone like structure.
  5. 5 The term interference has specific technical meaning. As employed here, however, it means any significant disruption to radiocommunications or to the operation of certain non-radio devices.
  6. 6 The Department of Communications authorizes such things as frequencies, bandwidth, type of emission, power, antenna properties and height, technical standards for radio equipment and operator proficiency.
  7. 7 One thousand cycles or hertz is one kilohertz (kHz), one million hertz is one megahertz (MHz) and one billion hertz is one gigahertz (GHz).
  8. 8 Citizen Band is also called General Radio Service (GRS). The range of CB or GRS is between 60-80 km which is in part due to severe power restrictions.
  9. 9 The categorization Municipal Service is not an internationally recognized service designation. It is used here to include all municipal-type services whether offered by a municipal, provincial or federal government. The services include radio services for detention centres, emergency response, government administration, hospitals, parks, police, public works, museums, nursing homes, schools and universities, and utilities. Such services are almost invariably of the land-mobile type.
  10. 10 By use of a satellite the distance across the surface of the earth can be up to several thousand km, but the absolute distance in space is almost unlimited. For example, when Voyager 2 transmitted information about the planet Uranus, its signal travelled nearly 3 billion kilometers.
  11. 11 Radio Astronomy has been used to receive radio signals from quasars billions of light years from earth.
  12. 12 For guyed towers, sizes less than 50% of the height of the tower can be used but the cost of the support structure rises dramatically due to engineering difficulties.
  13. 13 A recent application from CFGM radio in Richmond Hill, Ontario to locate a directional AM broadcasting antenna in Beamsville, Ontario involves 8 towers and requires 80 acres of land.
  14. 14 An excellent example of this situation is Mount Royal Park in Montreal. To get city-wide coverage, TV broadcast transmitters must be atop that mountain.
  15. 15 For large towers the parts must be transported in sections, assembled at the site and erected with a crane. While some towers are brought into isolated areas and erected with the use of helicopters, due to the costs involved this is for exceptional circumstances.
  16. 16 For the reasons cited above, high ground proximately located to the TransCanada Highway was chosen for much of the route of the first series of microwave relay stations across Canada. As a general rule, those who wish to construct transmission facilities would not acquire a site if the public roads were merely proposed for the area as no authority could be used to force the construction of the road if a local government objected to the proposed location of the transmitter.
  17. 17 In some circumstances the common law of nuisance may offer protection for broadcasting undertakings which suffer interference when power lines locate so as to spoil the reception on transmission of their signals. See: Nor-Video Services Ltd. v. Ontario Hydro (1978), 19 O.R. 107 (Ont. H.C.). In addition to the concerns discussed above, those with powerful transmitters are considering the implications of recent legal precedent involving complaints by local residents about the smell and dust from a piggery in New Brunswick. In the Sullivan Case, damages were awarded against a pig farmer despite the fact that he had been carrying on his operation long before the surrounding area became residential in nature. Radio operators are concerned that the safety level of the RF emissions from their transmitters, or the interference they may cause to radio and non-radio devices, may be similarly challenged by those who move in around them. See: Desrosier et al. v. Sullivan and Sullivan Farms (1986), 66 N.B.R. (2d) 243 (Q.B.); aff'd (1986), 76 N.B.R. (2d) 271 (C.A.); leave to appeal to S.C.C. refused June 1, 1987.
  18. 18 For example, another communication tower located nearby will often cause ghosting and other interference problems for TV reception. Controlling for such problems can be expensive and involve the cooperation of those in control of other radiocommunication systems.
  19. 19 Special circuits can be added, in some cases, to permit closer placement of AM stations but this can be difficult and costly.
  20. 20 The cost of the high intensity white lights can be in excess of $10,000.00 each and it is very expensive to maintain painted obstruction markings once an antenna structure is erected.
  21. 21 Those who wish to site large, expensive radio facilities tend to follow the 'path of least resistance' when acquiring antenna sites. Therefore, land use regulation problems are avoided where it is reasonably possible to do so. For example, CANTEL is currently acquiring sites for a cellular corridor between Windsor, Ontario and Quebec City. Antennae located in rural areas will be up to 95 meters tall. The company has adopted a policy of applying for permission to construct (building permit) from the local government for each site they have arranged to purchase or lease.
  22. 22 Satellite teleport or radioport facilities are being constructed by Telesat Canada. They involve co-location of many satellite antennae and satellite services. Typically, teleport installations involve between seven to ten parabolic dishes, sized from 1.8 to 10 meters in diameter, mounted upon the roof of a warehouse-like structure. It is this warehouse which is under local jurisdiction and by-law control. Currently, five teleport and ten radioport sites have been constructed by Telesat. They are within major metropolitan areas.
  23. 23 For AM broadcasting towers, the entire structure is the antenna.
  24. 24 Much of the material concerning the types and uses of support structures is taken from information provided at a half-day seminar entitled "The Design of Communication Towers and CSA Specification S37-M86" sponsored by the communications firm of Leblanc & Royle Telecommunications Inc. and held in Ottawa on 25 June 1987.
  25. 25 The support structures for cellular radio corridors and for microwave relay systems often follow this pattern and site guyed towers in rural areas and self-supporting ones in urban locations.
  26. 26 The new antenna (two UHF-TV channels) added last summer to the self-supporting tower atop Mount Royal in Montreal weighed nine tons. It joined two VHF-TV antennae and four FM antennae on the same structure. FM antennae may weigh up to 3,000 pounds and coaxial cable can range between fifteen to thirty pounds per linear meter.
  27. 27 It is not unusual for microwave towers which are sited at the downtown location of a telephone company to be made of concrete for this reason. In British Columbia, when residents complained about a microwave tower planned by B.C. Tel, the utility installed the antenna into a sculpture-like structure, sited it on a hillside, and permitted a local church to erect a cross upon it. Aesthetic factors are another reason why the CN Tower is made of concrete.
  28. 28 See: "Flat Satellite Antenna Developed", Signal Magazine, Vol. 4 No. 2 June/July 1987 (at p. 38). This antenna uses a foam core design to collect the signal.
  29. 29 Certain parabolic dish antennae may have to increase in size in the future as more and more satellites are placed in geostationary orbit around the earth. As key orbital positions become more congested, interference problems may develop which will require larger dishes to collect more of the desired signals.
  30. 30 Cellular phones were first introduced into Canada in July of 1985 by Cantel Inc. and Bell Cellular. At the time of writing, Cantel serves 21 Canadian cities, is working on two cellular corridors and plans to offer cellular service in Halifax by November of this year and in Winnipeg next year.
  31. 31 Currently, cable TV operators in Canada have at least three satellite dishes sited on their property. One for each of the 'birds' with Canadian TV programming on them, ANIK C-3 and ANIK D-1, and a third to receive programs from an American satellite.
  32. 32 This phrase has been employed because it has not been settled as to whether MDS, which does not transmit entertainment services, amounts to broadcasting or should be given another radio service designation.
  33. 33 Some are calling this new service "cable in the sky".
  34. 34An MMDS undertaking is currently being installed in a rural area of Quebec pursuant to a joint DOC-Quebec Ministry of Communications agreement. See: Network Newsletter, Vol.7 No.22 15 June 1987 (at p. 6). This proposal involves the simultaneous transmission of four entertainment channels from one transmitter site.
  35. 35 The Department of National Defence has of the most radio spectrum allocated and assigned to its use than any other user, public or private, in Canada.
  36. 36 The sovereignty issue referred to here is the legal jurisdiction to control the flow of radio transmissions across our borders. Without an authorization process, which can be granted and rescinded, the flow of commercial information would be very difficult to control. The Clyne Committee Report (Department of Communications, Consultative Committee on the Implications of Telecommunications for Canadian Sovereignty, Telecommunications and Canada, Minister of Supply and Services, (Ottawa: 1979) contained many concerns about our ability, legal and otherwise, to control the flow of computer data across our borders. As an aside, one sovereignty issue which the current Radio Act does not respond to, involves the transmission of intelligence using frequencies significantly higher than those of the radio portion of the electromagnetic spectrum. Enquiries already have been received about licensing requirements for such communications systems. The Radio Act is tied to radio technology and offers no control over such means of communication, unless it was causing interference to radio users.
  37. 37 On a number of occasions in the past, spectrum management policies have been used to achieve public policy objectives related to creating and fostering a national network for radio and television broadcasting. For example: frequencies were juggled and reassigned during the early years of AM radio to give the national broadcasting system the choice frequencies; signal power freezes were employed to favour public, over private, broadcasters; and signal contour rules were created to foster the introduction of radio and television into areas which did not promise a healthy market for private broadcasters.
  38. 38 There is explicit authority to enter into international agreements in both the Department of Communications Act, (s.5(i)(f)) and the Radio Act (s.8(l)).
  39. 39 The Department of Communications Act, section 5(2), provides authority for intra-national agreements.
  40. 40 The dedication of resources to spectrum management by DOC is substantial. For the fiscal year 1985-86, 44.5 million dollars and 872 person years were deployed for this purpose. Costs were recovered through radio licence fee revenues.
  41. 41 R.S.C. 1970, c.R-1 (as amended) Statutory authority for spectrum management functions can also be found in the Department of Communications Act, Broadcasting Act and the Telegraph Act. Many spectrum management functions relate to providing support to legislative programs contained within the Fisheries Act, National Transportation Act, Canadian Merchant Marine Act, Aeronautics Act, Arctic Pollution Control Act, St. Lawrence Seaway Administration Act and the Gas and Petroleum Production and Conservation Act.
  42. 42 General Radio Regulations, Part I, C.R.C., c.1371., General Radio Regulations, Part II, C.R.C., c.1372., Radio Interference Regulations, C.R.C., c.1374, Radio Operator Certificate Regulations, SOR/78-244., and the Private Receiving Antenna Construction Order, C.R.C., c.1373. (There are also a number of schedules made under the regulations.)
  43. 43 The Department uses about ten different types of policy and guidance documents called policies, procedures, standards, rules, specifications, bulletins, circulars, equipment lists, system plans and manuals.
  44. 44 As is true for every other aspect of broadcast regulation, broadcasting antennae tend to receive far more attention than all other antennae sited for radiocommunications. In actuality, less than two percent of all licensed antennae sited in Canada are related to broadcasting undertakings.
  45. 45 Broadcasting undertakings include AM and FM radio, VHF and UHF-TV and cable operations.
  46. 46 The CRTC may not grant a licence under the Broadcasting Act unless the applicant has been issued or is about to be issued a TC & OC. See: Broadcasting Act, section 22(1)(b). The CBC is also bound by the precondition of a valid TC & OC for its broadcast undertakings as per section 30(3) of the Broadcasting Act. The CRTC is, of course, the Canadian Radio-television and Telecommunications Commission.
  47. 47 The control over specific licensees is clarified by section 4(c) which states that the Minister may, "amend the conditions of any licence or certificate [TC & OC] where he considers such amendment necessary …".
  48. 48 The sanction for establishing, installing, operating or possessing a radio apparatus without a proper authorization is substantial. Section 11 provides for a fine of up to $2,500.00 or imprisonment not exceeding one year and possible forfeiture of the apparatus involved.
  49. 49 It is interesting to note at this point that this is the principal enabling provision for control over all non-broadcast antennae yet it is silent with respect to authority to make further rules regarding site-specific approvals and control over the selection of an antenna system or support structures or towers. There is considerable legal authority on the rules for regulation-making which requires that every regulation must clearly be authorized by an enabling provision in the statute itself. Therefore, regulations with respect to these subjects, as such relate to non-broadcast antennae, may be ultra vires the Act unless some other legislative provision can be found to support them. It may be possible to uphold their validity by arguing that these provisions are authorized by section 3(1)(b) of the Radio Act. In other words, the Minister is employing his/her broad discretion to set licence conditions by putting them in regulation form. If the Radio Act is amended in the near future, this stretch of authority could be avoided by including an enabling provision, in the act itself, which authorizes the Minister to make policy rules related to the antenna system, site approval and support structures for all licensed antennae (not just those used for broadcasting undertakings).
  50. 50 Private commercial broadcasting stations are radio, TV and cable operators which are not affiliated with the CBC. This provision may be left over from the very early years of radio regulation when the CBC regulated the technical parameters of its own stations. Currently, even with the authority vested in the CBC to "establish, equip, maintain and operate a broadcasting undertaking" (Broadcasting Act, s.39(1)(a)), the CBC, like the private stations, must possess, or be eligible for, a TC & OC from DOC before it can be issued a licence by the CRTC See: Broadcasting Act, s.39(3).
  51. 51 Private Receiving Antenna Construction Order, C.R.C., c.1373.
  52. 52 Schedule 1 of General Radio Regulations, Part II (first enacted as Schedule A: Antenna and Supporting Structures for Domestic Radio Receiving Purposes, SOR/56-400, on 14 November 1956).
  53. 53 The engineering standards in the Schedule apply only to the districts enumerated in the Order. Over the 30-year history of this regulation, the number of districts has ranged from a low of about six to a high of eighteen. As will be seen in the following section of this study, the schedule has not been enforced in a number of years and is about to be repealed.
  54. 54 The definition within the preface to General Radio Regulations, Part II defines a "private receiving station" as any receiver specifically exempted from licensing under section 3(3) of the Radio Act. Likely, the combination of this definition and the provisions in the Order would extend its application to include unlicensed TVRO dishes sited on "domestic" (residential) property. This would explain why a few municipalities recently have been writing to DOC asking about how they can be added to the schedule appended to the Order.
  55. 55 See: Radio Act, s.5(e) regarding broadcasting undertakings. This is the sole provision.
  56. 56 The lack of a specific enabling provision in the Act, while problematic, is likely not fatal to the validity of the interference provisions embodied in regulation form. Managing interference through licensing was the raison d'être of the first radio legislation in Canada (the Wireless Radiotelegraph Act of 1905 per, R. Prefontaine, Minister of Marine and Fisheries, Commons, July 7, 1905 at p. 9032) and has continued as such throughout successive efforts to regulate use of the spectrum. Be that as it may, if new Radio Act provisions are created in the future, an enabling provision should be specifically created for interference management authority.
  57. 57 Decided in the Ontario District Court on April 9, 1986, Judge W.T. Hollinger (unreported) (file no. 1559/85). The Ontario Court of Appeal likely will hear the case in November of 1987.
  58. 58 The non-radio devices included the neighbour's electronic organ and furnace controls. The issue of interference from licensed radio operators to non-radio devices complicated DOC action in this case and is causing inconsistent action in others. This is because the Radio Act speaks of interference to radiocommunications. Thus, the Department of Communications is uncertain of its jurisdiction to intervene when the performance of equipment such as telephones, VCR's, computers and electronic organs is seriously affected by radio transmissions. In the Ravenscroft situation the Department took no official action, due to concerns about its jurisdiction, but in two other recent cases DOC was not so inhibited. When Manitoba Television applied to site a television broadcasting transmission tower on the campus of the University of Manitoba, DOC turned down the application, in part, because of the potential for interference to non-radio medical devices at a nearby hospital. Also, when transmissions from an AM broadcasting station, CKCV Quebec City, caused substantial interference to the radio and non-radio devices in a municipality which was adjacent to the municipality in which the transmitter was sited, the Department of Communications responded by varying the terms and conditions of the broadcaster's licence. At one point the municipality brought a legal action against the Minister of Communications because of the interference its residents were suffering. See: Ville de Cap Rouge et. Le Ministre des Communications du Canada, decided in the Federal Court, Trial Decision on December 6, l984, Justice P. Denault (unreported) (file no. T 1420-84). The action was dismissed on grounds unrelated to radio regulation. To avoid inconsistent departmental policy and to protect its jurisdiction over all forms of radio interference this jurisdictional lacuna should be filled when the Radio Act is next amended.
  59. 59 Factum Submitted on behalf of the Appellants John Ravenscroft and Helen May Ravenscroft, Court file no. 274/86 (at pp. 6-12).
  60. 60 A current by-law in Kanata, Ontario contains a prohibition regarding radio interference. See: By-Law 29-82 (as amended) s.3(8)(h).
  61. 61 R v. Forbes, decided in the Ontario Provincial Court (Criminal Division) on June 8, 1981, Judge K.A. Langdon (unreported). The case involved an amateur (ham) radio operator who was accused of violating a City of Mississauga by-law which was designed to control interference in residential areas. The judge dismissed the case and stated that regulation of the emissions from radio stations was exclusively within the legislative competence of the federal government. (See esp. at p. 4)
  62. 62 For example, if a prospective licensee applied to DOC to site a 50 meter high antenna for a paging service in the middle of a residential zone, the issue of the suitability of a commercial antenna of that height in a residential area would not even be raised. The application forms currently in use do not enquire about the zoning or character of the prospective site. Currently, an amateur or GRS (CB) radio operator could erect a 50 meter antenna in their back yard and the Department would not be aware of it. Licences for these operators are personal in nature and provide no details at all about the antenna system to be used.
  63. 63 Some channels for broadcasting purposes have been allocated between Canada and the U.S.A. on the explicit understanding that when they are used their antennae will be co-sited. Certain FM broadcasting channels have been reserved for Canada's west coast on this understanding. The topography and the close proximity of major urban centres to each side of the border make this necessary in order to maximize use of the radio spectrum.
  64. 64 Recommended Safety Procedures for the Installation and Use of Radio frequency and Microwave Devices in the Frequency Range 10 MHz to 300 Ghz.
  65. 65 The limits are 1mW/cm or 61 V/m averaged over one hour and 25 mW/cm or 307 V/m averaged over one minute.
  66. 66 While DOC considers this policy, Health and Welfare Canada is reconsidering these standards and may issue much more stringent ones. See: A.G. Day, M. Durocher and B.M. Read, Canadian Broadcasters' Manual on Non-Ionizing Radiation, Canadian Association of Broadcasters, (Ottawa: 1986). (at p. 9) This publication provides a good review of the state of domestic and international RF exposure regulation. The CBC has occupational code for its own employees and it is more stringent than the current Health and Welfare standards.
  67. 67 The regulations were General Radio Regulations, Part II, ss.12(1) and 117. While these regulations were relied on for many years to force applicants to submit the details of their antenna proposals to the transport ministry, their legal validity was very much in doubt. The problem is that there is no enabling provision in the Radio Act itself to support such regulation. Historically, s.7(e) was used to support these regulations, but its application to aeronautical safety is far from certain.
  68. 68 Form 16-879(1283), "Particulars of Proposed Site and Radio Antenna Structures".
  69. 69 Aeronautics Act, R.S.C. 1970 (as amended by S.C. 1985.) The enabling authority for aeronautical obstructions, section 3.9(1)(o), was proclaimed into force June 28, l985.
  70. 70 Air Regulations, C.R.C. 1978 c.2, s.514.1(2) and (3). Subsection (2) permits the Minister of Transport to publish a Standards Obstruction Markings Manual and subsection (3) authorizes the Minister to order a structure painted or lit as prescribed by the Manual. The current manual is TP382E published March, 1987.
  71. 71 See: "Retention and amendment of certain sections of the General Radio Regulations, Part II, concerning antenna supporting structures and safety of radio equipment." Proposal 120 DOC-887, within Federal Regulatory Plan - 1987, Minister of State (Privatization) and Minister Responsible for Regulatory Affairs, Government Publishing Centre, (Ottawa: 1987). (at p. 92)
  72. 72 The standard has no application for smaller attachment-type antennae nor those less than 25 meters above grade or 15 meters above the roof of a building. See: CSA STD S-37-M86, ss. 1.2(a),(b) and (c).
  73. 73 DOC Form 16-619(1-80) "Data Required Regarding the Structural Adequacy of Antenna Supporting Structures for Broadcasting Undertakings".
  74. 74 Form 16-879(1283), "Particulars of Proposed Site and Radio Antenna Structures".
  75. 75 In the early 1980's, internally provided legal advice brought to an abrupt halt DOC efforts to amend the General Radio Regulations - Part II to extend structural adequacy and installation safety regulation to certain non-broadcasting licensed antennae. The advice, provided in February of 1983, stated that safety regulation of that nature was a very questionable extension of the Minister's mandate as set out in the Radio Act. Should the Department wish to regulate engineering safety of antenna support structures, its jurisdiction to do so should be clarified through an amendment to the Act.
  76. 76 CSA C22.1-1978, "Safety Standards for Electrical Installations" provided engineering standards for structures which did not exceed 15 meters above the base of a building or 25 meters above grade. It used to be published as Appendix A in the Canadian Electrical Code - Part I, but it was deleted from the Code in 1981. The standard has not been revised or reissued by the CSA since l978.
  77. 77 The policy appears to be inconsistent to the CSA's standard for three reasons. First, the 1976 standard is currently required by DOC despite the fact that an updated one, requiring more wind loading protection, has been published since September of 1986. Second, some towers are approved for a TC & OC despite the fact that, technically, under additional loading conditions they do not meet the 1976 standard. Third, when a non-broadcasting antenna (ie. microwave dish) is added to an existing broadcasting tower the current authorization process does not make issuance of a licence for the new antenna or service conditional upon meeting any CSA structural standards. Under current policy it is up to the broadcaster to obtain an engineer's certificate and submit a new "Structural Adequacy" form. Often, this is not done. It is also interesting to note that DOC once inspected broadcasting towers while they were under construction, but this practice stopped in the 1970's because of the manpower requirements necessary to do so.
  78. 78 When the Hon. George Marler, then Minister of Transport, introduced amendments to the Radio Act, to permit regulation of the "mechanical features" of domestic TV and radio antennae, a Mr. Bryson voiced a common sentiment about their appearance.

    "I think that it is really unfortunate that we have got these Buck Rodgers contraptions on the rooftop of every house…. When I go around the City of Ottawa and see these weird and wonderful rotating stacked arrays, I am completely flabbergasted…. I can think of no more depressing sight than to visit new housing projects and see these antennae on the roofs of the houses."

    [House of Commons, Debates, March 17, 1955 (at p. 2139)]

  79. 79 The City of Prince Albert debated creating a by-law which would levy a $2.50 fee for each TV antennae erected within the municipality. Ibid, per Mr. Bryson.
  80. 80 Supra, footnote 52.
  81. 81 The Department is in the process of repealing these regulations and the schedules created pursuant thereto. Supra, footnote 71.
  82. 82 The history of federal environmental impact laws or Environmental Assessment and Review Policy (EARP), as it has become known, is relevant to this study. Despite the fact that it does not apply currently to the siting or operation of radio antennae, this, likely, will be changed in time. Pursuant to a directive issued by the Federal Cabinet in 1973, the first federal EARP policies and procedures were created. Their legal status, extent of application and mode of operation were very uncertain. In 1984, Order-in-Council, P.C. 1984-2132 approved a revised policy called the "Guidelines Respecting the Implementation of the Federal Policy on Environmental Assessment." This order-in-council confirmed the Federal Environmental Assessment and Review Office (FEARO) as the body responsible for environmental impact assessment on behalf of the federal Minister of the Environment. Under FEARO, environmental assessment policies and procedures have continued to develop. These rules, in their current form, cannot be used to assess the impact of radio antennae for two reasons. First, orders-in-council are subordinate to existing statutes, therefore this guidance could only apply to an existing environmental assessment process -- of which the Radio Act has none. Second, the legal status of the authority of this very order-in- council was recently challenged by the Joint Standing Committee of the Senate and the House on Regulatory Instruments.
  83. 83 These policy statements and guidelines were approved by the Federal Cabinet in December of 1980. See: Federal Policy on Land Use, Cat. No. En 72-9/1982, Minister of Supply and Services, (Ottawa: 1984). (pp. 10)
  84. 84 Ibid. (at p. 10)
  85. 85 No cases could be found where the CRTC included environmental factors as a condition for a broadcasting licence. This is not surprising considering the fact that applicants appear before the CRTC only after assurance has been given by the Department of Communications that a TC & OC has been, or will be, issued. The TC & OC is the authority to locate and construct the transmission facility at a specific site. The CRTC controls access to the Canadian broadcasting system. It does not issue construction permits.
  86. 86 The impasse was broken when Northwestel agreed to install a microwave troposcatter system which would permit the radio signal to hop completely over the park. It is also interesting to note that, at this time, the park had a 50 ft. height limitation on all radio antennae sited within it. Land-Mobile antennae sited for the Canadian Wild Life Service respected that limitation.
  87. 87 See: In the Matter of Section 34 of the Planning Act, 1983 and In the Matter of Appeals by Frank Evans and Others, Against Zoning By-Law 87-2 of the Corporation of the Township of Georgian Bay, Memorandum of Oral Reasons of the Ontario Municipal Board delivered by D.S. Colbourne on June 18, 1987 (O.M.B. File R 870153). The O.M.B. chairman dismissed the concerns raised by the objectors and re-zoning was approved. Nevertheless permission to develop a portion of the site, which was inconsequential to the radio transmitter, was denied and environmental protection was undoubtedly the reason.
  88. 88 Reconsideration of Decision CRTC 86-990 approving an application by Westcom Radio Group Ltd. to amend the licence for CFGM, Richmond Hill, Ontario. By Decision CRTC 86-990 the Commission approved a broadcasting licence for CFGM to broadcast at a new frequency (640 kHz) and a new location, near Beamsville, Ontario. This action was preceded by a CRTC public hearing held in the National Capital Commission to which local residents and the local municipality of the proposed transmitter site were not given notice. Because those most affected by the placement of the transmission towers were not given an opportunity to make their views known, the Federal Cabinet by way of Order-in-Council P.C. 1986-2690 referred the initial decision back to the CRTC for a rehearing. Decision CRTC 87-376 is the reconsidered decision.
  89. 89 Ibid. at p. 12.
  90. 90 Ibid.
  91. 91 This view was emphatically repeated by the mayor of Lincoln when the reconsidered decision was announced. See: "CRTC backs radio towers for 2nd time," The Toronto Globe and Mail, June 4, 1987 (at p. A9).
  92. 92 According to section 14 of the Canadian Radio-television and Telecommunications Commission Act, S.C. 1974-75-76, c.49, the "objects and powers of the Commission and the Executive Committee in relation to broadcasting are as set forth in the Broadcasting Act".
  93. 93 The Broadcasting Act, R.S.C. 1970 c.B-11 (as amended), sets out the powers of the Commission in section 15. It states, "Subject to this Act … the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing broadcasting policy enunciated in Section 3 of the Act." While section 3 of the Broadcasting Act is very broad, and legal cases have tended to give the section liberal interpretation,it is submitted that local land use issues are so outside of the cultural, political, social and economic issues related to maintaining the Canadian broadcasting system, they are ultra vires the Act itself.
  94. 94 See, for example, C.H. McNairn, "Transportation, Communication and the scope of Federal Jurisdiction", (1969) 47 Can. B. Rev. 355; C.M Dalfen and L.J. Dunbar, "Transportation and Communications: The Constitution and the Canadian Economic Union" in M. Krasnick (ed.), Case Studies in the Division of Powers, (Toronto: 1986), M. and F. Fletcher, "Communications and Confederation" in R. Byers (ed.), Canada Challenged: The Viability of Confederation, (Toronto: l979).
  95. 95 Fletcher, ibid, at p.159.
  96. 96 See, for example, Canada, Department of Communications, Telecommission Study 2(d): Communications and Regional Development (Ottawa: 1971) (at pp. 16-25).
  97. 97 Analogous provisions are found in section 92(10) of the Constitution Act, 1867.
  98. 98 An Act Respecting Telecommunications in Canada, Bill C-24, s.3.
  99. 99 K. Swinton, "Advertising and Canadian Cable Television - A Problem in International Telecommunications Law" (1977), 15 Osgoode Hall L. J. 543 (at p.563).
  100. 100 See: Fletcher, supra, footnote 94 at pp. l66-169.
  101. 101 Fletcher, supra, footnote 94 at p.174.
  102. 102 See the statements of the Supreme Court of Canada in Capital Cities Communications v. CRTC, (1978), 81 D.L.R. (3d) 623.
  103. 103 See the Report of the Boyle Committee at 55 and 61: "… Unity is not uniformity … the mandate of unity can only be fulfilled by giving Canadians a sense of their identity, regional as well as national, and in their varying kinds of history, ethnic make-up, and cultural traditions, and by trying to get rid of the stereotypes that are produced from ignorance." quoted in Fletcher, supra, footnote 94 at p.180. See as well, the Report of the Pepin-Robarts Task Force on Canadian Unity, 1979 which recommended that "Quebec should be assured the full powers needed for the preservation and expansion of its distinctive heritage." (at pp. 85-86); The Canadian Bar Association, Towards a New Canada (1978); The Quebec Liberal party, "A New Canadian Federation" (1980).
  104. 104 D. Elton, F. Engelmann and P. McCormick, "Alternatives: Towards the Development of an Effective Federal System for Canada", a 1978 paper prepared for the Canada West foundation; E.R. Black "What Alternatives Do We have if Any ?" Simeon (ed.), Must Canada Fail ?
  105. 105 Fletcher, supra, footnote 94 at p. 173.
  106. 106 Ibid.
  107. 107 Bank of Toronto v. Lambe (1887), 12 A.C. 575, (at p. 587).
  108. 108 Citizens Insurance Co. v. Parsons (1881), A.C. 96, (at p. 110).
  109. 109 Ibid.
  110. 110 W.R. Lederman, "Classification on Laws and the British North America Act" in Continuing Canadian Constitutional Dilemmas (Toronto: 1981) (at p. 241).
  111. 111 See the commentary by R. Shaw, "Municipal Regulation of CATV" (1970), 2 Comms. L. Rev. 70; R. Atkey, "The Provincial Interest in Broadcasting under the Canadian Constitution" (1969), 1 Comms. L. Rev. 212; K. Alyluia, "Constitutional Aspects of Cable Television" (1969), 1 Comms. L. Rev. 47; D. Mullan, "The Constitutional Implications of the Regulation of Telecommunications" (1973), 1 Queens L.J. 67; R.P. Doherty, "The Case for Provincial Regulation of Community Antenna Television Systems" (1979), 5 Dal. L.J. 760.
  112. 112 P. Grant, Canadian Broadcasting Law and Administrative Policy, quoted in Donerty, supra, footnote 111, (at pp. 769-770).
  113. 113 Re City of Kelowna and C.U.P.E. Local 338 (1974), 42 D.L.R. (3d) 752 (B.C.S.C.).
  114. 114 Re Field Aviation Co. (1974), 49 D.L.R. (3d) 234 (Alta. C.A.).
  115. 115 Re Staron Flight Ltd. (1976), 73 D.L.R. (3d) 78 (B.C.S.C.).
  116. 116 J. MacPherson, "Developments in Constitutional Law" (1980), 1 Supreme Court L. R. 77 (at p .85).
  117. 117 Fletcher, supra, footnote 94 at p. 185.
  118. 118 Communications Act of 1934, 47 U.S.C. (as amended).
  119. 119 Under the U.S. constitutional system, "police power" represents the authority conferred upon state governments to restrain individual freedoms and property rights in order to achieve safety, health, moral and general welfare objectives. These explicit and inherent constitutional powers are delegated by individual states to their respective local governments.
  120. 120 An example of a recent enactment is the Communications Amendment Act, Public Law 97-259 (adopted September 13, 1982) which clarifies the FCC's jurisdiction over the susceptibility of home entertainment devices to radio energy.
  121. 121 The Supremacy Clause (Article Six, Section 2) of the U.S. Constitution ensures that the federal law will prevail.
  122. 122 These amendments do place significant limits on the ordinance-making powers of municipal governments. Examples of general limitations which have evolved over time to invalidate local ordinances will render inoperative by-laws which are arbitrary, unreasonable, capricious or discriminatory; effectively undermine the value of land without due process and compensation; which unreasonably restrict competition, prohibit a legitimate use of land on aesthetic grounds alone, and impose greater restrictions on the use of land than are necessary to achieve legitimate local interests.
  123. 123 Some cases go back to the 1920's. Recently, doubts were raised about whether ordinances could manage radio interference when a county in Oregon attempted to regulate interference between two FM radio stations. The FCC issued a declaratory ruling which stated that the federal government must have and does have exclusive jurisdiction to manage radio interference. See: In the Matter of 960 Radio, Inc., Licensee of Station KJSN(FM), Klamath Falls Oregon, FCC 85-578 (released November 4, 1985) The General Counsel's office of the FCC now sends out a standard form letter upon being informed of such ordinances. The letter informs the municipality that the FCC fully occupies this field of regulation, so that concurrent legislation is not acceptable. References to very early cases of local attempts to control amateur radio can be found within R. Palm, FCC Rule Book: A Guide to FCC Regulations 6th ed., American Radio Relay League, 1986 (at p. 2.18).
  124. 124 47 U.S.C. s. 319 (a). Under the Act, the permit is actually authority to construct a station which includes the antenna system. The permit system is used for broadcasting undertakings and the licensing process authorizes the siting of the antenna system for most other types of radio stations. See 47 U.S.C. s. 319 (d).
  125. 125 Section 303 of the Communications Act of 1934 provides in part: "Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest or necessity requires, shall:

    (d) Determine the location of stations….

  126. 126 The FCC has expressly preempted in part certain types of ordinances for amateur radio and satellite dish installations (to be discussed). The policy of total deference to local ordinances which do not unreasonably restrict the federal government's objectives was confirmed by at least three officials of the Commission during personal interviews.
  127. 127 Applicants must be able to prove, if challenged through a Petition to Deny process, that there is "reasonable assurance" that both the site and the support structure are available. This includes local government approvals and sufficient proprietary interest in the parcel(s) of land necessary. See: E.G. Krasnow and J.G. Bentley, Buying or Building a Broadcast Station: Everything You Want - and Need to know - But Didn't know Who to Ask, National Association of Broadcasters, (Washington, D.C.: 1982) (at p. 25). See also: FCC Form 301, Application For Construction Permit For Commercial Broadcast Station October, 1986 (at p. 23). For the Petition to Deny process see: 47 C.F.R. s. 73.3584.
  128. 128 For an example of this policy, see the "central location doctrine for TV applications" as embodied in 47 C.F.R. 73.685(b). Also, AM radio tower height must correspond correctly to the frequency assigned by the FCC
  129. 129 See: 47 C.F.R. s. 17.10
  130. 130 The process is contained within 47 C.F.R. s.l. 1301 to s.l. 1319. The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 3432) requires all federal agencies to consider the environmental impact of their actions and authorization processes.
  131. 131 The statistic was obtained from an interview with an FCC official in May of 1987. The option of amending the application so that the impact is below the threshold necessary to continue the assessment process is contained in rule 47 C.F.R. 1.1309
  132. 132 The standard is called; American National Standard Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 300 kHz to 100 Ghz.
  133. 133 As will be seen in the section on local government regulation, municipal governments have recently begun setting exposure protection levels which are more stringent and comprehensive than the FCC's. As a consequence, the National Association of Broadcasters (NAB) has requested that the FCC expressly preempt local regulations in this area. This request is under consideration. See: FCC Public Notice - 4198 Petition for Declaratory Ruling that Affect Communication Services to the Public, dated May 1, 1986. It should also be noted that the FCC has just excluded a number of categories of applications from routine evaluation to ensure that they do not exceed the ANSI standard. The Commission will now perform routine evaluations on applications involving Parts 5, 25, 73 and 74 of the FCC Rules. It continues to consider the need for protection from the emissions from ship earth stations and ship radar stations. For the latest pronouncements in these matters see: In the Matter of Responsibility of The Federal Communications Commission to Consider Biological Effects of Radio frequency Radiation when Authorizing the Use of Radiofrequency Devices, Second Report and Order FCC87-63 (released April 9, 1987).
  134. 134 47 C.F.R. Part 17
  135. 135 The F.A.A. cannot revoke or deny a construction permit for a radiocommunication tower but it can designate the proposal as an aviation hazard if it is constructed. This designation undoubtedly would make it almost impossible to insure the structure. Such action by the F.A.A. is not necessary as the FCC has the power to take "further appropriate action" (47 C.F.R. 17.4(e)) if the proposal does constitute a hazard. This may mean restricting the height of a proposal or denying it altogether.
  136. 136 In the Matter of Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, FCC 85-506, 36149 (released September 19, 1985.) Some local ordinances relating generally to ancillary structures were also being used to regulate the height of amateur antennae and towers. These "structure" by-laws often limited the height of the antenna to about 30 feet. Such heights would effectively preclude communication at some of the frequencies assigned to amateurs and bring these antennae down to the level of off-air TV antennae greatly increasing television interference (TVI).
  137. 137 Thernes v. City of Lakeside Park, 779, Fed. 2d 1187 (1987) (U.S.C.A.), (6th circuit), 62 Radio Reg. 2d 286 (U.S. Dist. Ct. February 24, 1987). In the end, the amateur was permitted a 65 foot tower and eight additional feet for the mast and antenna.
  138. 138 In the Matter of Preemption of Local Zoning or Other Regulation of Receive - Only Satellite Earth Stations, FCC 86-28 (adopted January 14, 1986). It should be noted that the FCC issued an earlier preemptive statement regarding state or local regulations of Satellite Master Antenna Systems (SMATV) but it did not preclude zoning, public safety or health ordinances See: Federal Communications Commission, Memorandum Opinion, Declaratory Ruling and Order, CST-2347, FCC 83-526 (adopted November 17, 1983).
  139. 139 B. Bookin and L. Epstein, Regulating Radio and TV Towers, Planning Advisory Service Report Number 384, American Planning Association, (Washington, D.C.: 1984) (at p.14). The moratorium must be narrow in scope and reasonable in duration.
  140. 140 A question of sufficient national interest may be present when the district government denies a construction permit for an antenna to a foreign embassy in Washington, D.C. Just such a controversy was ongoing in May of this year.
  141. 141 Therefore, if for example a private satellite dish cannot be placed in the back or side yards special permission may be granted to sites in the front yard, but its exact location may be dictated by a municipal planner and screening may be required to partially block its visibility from the street.
  142. 142 While height limitations are not usually a problem for satellite dishes, the issue of the minimum antenna height necessary for an amateur station raises much controversy. The preemptive statement PRB-1 did not stipulate a minimum height. The American amateur radio community generally is of the view that their antennae must reach at least to 65 feet above the average terrain surrounding the station to achieve adequate short and distant communication and make use of the radio spectrum allocated for their use.
  143. 143 For example, the Portland Planning Commission has set an exposure limit which permits approximately one tenth the exposure of the Federal standard ANSI STD C95.1-1982. As mentioned in fn.133 such regulation has the National Association of Broadcasters very concerned. The FCC in cooperation with the E.P.A. has recently completed a field study of a situation where the radiation recorded exceeded municipal levels but was within the federal limits. See: An Investigation of Radiofrequency Radiation Levels on Healy Heights, Portland, Oregon, July 28 - August 1, 1986, Electromagnetic Branch, Office of Radiation Programs, U.S. Environmental Protection Agency, Nevada 1987.
  144. 144 Sometimes engineering standards are dictated to the municipality by the state government.
  145. 145 When large antennae are constructed municipalities will incorporate standards from the state or national electrical code for connection, grounding and fire equipment requirements.
  146. 146 For example, a guyed tower may be selected over a free-standing one because it is far less obtrusive when seen at a distance.
  147. 147 It is not unusual for tall cellular antenna towers near Washington, D.C. to be painted sky blue. For parabolic dish antennae, paint which is lead free will not affect their performance.
  148. 148 Frequently, parabolic dish antennae display advertising.
  149. 149 An exception to this rule would be municipal height restrictions used to refine the siting of parabolic satellite dishes. [See: general principle number 5 in the 'May regulate' section] The reason for this exception is that these antennae require only an unobstructed "look at" the satellite(s) from which they are receiving signals. Therefore, height per se is not related to operative capacity. In fact, in some cases dishes work best when they are low to the ground or sited below the height of average surrounding terrain to avoid terrestrial interference.
  150. 150 It is interesting to speculate about why the number of cases where municipalities strongly oppose the establishment or the height or dimensions of particular radio installations is quite low. To their credit, most applicants for radio licences and certificates are quite sensitive to the impact their installation will have upon the area where it is to be located. Obviously, radio operators who wish to provide a broadcasting or a commercial service must be careful about the ill will they may cause. On occasion, radio authorization personnel of the Department of Communications have convinced applicants of the wisdom of accommodating local desires. A certain amount of tolerance may be related to the role Canadian municipalities and citizen groups have historically played to encourage the establishment of additional and improved radio and television broadcasting transmission and cable facilities.
  151. 151 The CRTC could be selected to decide disputes involving all types of radio antennae or only those related to broadcasting undertakings.
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