IV. Regulation of Radio Antennas and their Support Structures in the U.S.A.
Constitutional division of authority of matters affecting radiocommunications
Pursuant to the authority expressly delegated by the United States Congress in the Communications Act of 1934,Footnote 118 the Federal Communications Commission (FCC) manages and authorizes the use of the radio frequency spectrum. The enabling provisions contained within this legislation permit the FCC, through its various authorization and control programs and rules, to regulate the use of radio frequencies, bandwidth, signal power and direction, and sources and levels of harmful interference. As a necessary incident to these programs and rules, the FCC also regulates certain aspects of the siting, height, safety and appearance of radio antennae and their support structures.
Local or municipal governments in the United States are vested with the authority to make ordinances (by-laws) and other regulations through an express delegation of such power as set out in the constitution of the state in which the city or county is located. Thereby, municipalities are authorized to make and enforce local, police, sanitary and other ordinances which apply only within their geographical limits, provided they do not conflict with the general laws of the state.
The police powersFootnote 119 delegated to local governments give them the jurisdiction to make and enforce rules relating to the health, safety and aesthetics of buildings and structures. In the U.S.A., it has been an accepted constitutional principle, since the 1920's, that included within the police powers of local governments is the right to regulate many aspects of the siting, installation, erection and operation of radio antennae and their support structures. Therefore, there exists great potential for the objectives and rules of the federal government to conflict with those of the thousands of local administrations across the country. As one might expect, constitutional and other principles and rules have evolved to resolve these conflicts and clarify rule-making responsibilities.
Constitutional principles and rules
At the federal level, the FCC is limited to the powers which are expressly set out in the Communications Act of 1934 and any other legislative instruments enacted by Congress.Footnote 120 It has no inherent powers of its own.
Constitutionally speaking, the very existence of a federal rule or regulation does not, in of itself, preclude lawmaking by a local government in relation to that subject. A high level of concurrent regulation is an accepted part of constitutional law in the United States. Federal law is supreme or paramount where there is a clear intention, expressed or implied, to occupy an entire field or a specific aspect of regulation.Footnote 121 A clear intention may appear in the enabling legislation itself or the FCC may issue an explicit statement that, pursuant to some enabling provision, it is preempting local regulation in relation to some matter. The First (freedom of expression), Fifth (equal protection) and Fourteenth (due process) Amendments to the U.S. Constitution limit both the actions of the FCC and local governments.Footnote 122
In relation to radio antennae and their support structures, it is legally accepted that the FCC does not fully occupy and has not preempted generally this area of regulation. Therefore, lawfully enacted local by-laws and other rules, which do not conflict or unreasonably interfere with existing federal rules and objectives, may be created in relation to the location, height, aesthetics and safety of antennae and their support structures. The pattern of regulation which has developed from these principles now follows.
The regulatory realities
The current realities of who is regulating what in relation to antennae in the United States today are a result of the application of the constitutional principles previously discussed, a number of legal decisions and, to a certain extent, a historical and evolving pattern of regulation which has been accepted by all concerned as a reasonable and legitimate use of federal and municipal power.
- The powers of the federal government
- Interference management
Legal precedent, decided over a number of years, Footnote 123 has established that managing interference to and from radio devices is exclusively within the powers of the federal government. Local ordinances which require radio operators to cease operation or pay fines due to interference are inoperative.
- Location of antennae and their structures
The Federal Communications Commission does not assign or select the location for radio antennae - other than for its own. The Commission does either issue or deny a construction permit and/or licence. This permit amounts to federal authority to locate an antenna up to a certain height at a particular geographical location.Footnote 124
The enabling provision which gives the FCC its discretion to grant or deny a permit is couched in extremely wide terms.Footnote 125 The scope of this provision gives the Commission the authority to site or not site in the public interest generally. Therefore, rules and policies which go beyond the scope of spectrum management can be developed and applied.
Under current policy, construction permits are denied (inter alia) on the following grounds:
- the radio signal cannot practically or lawfully be co-ordinated with other ratio spectrum users
- the environmental impact of the siting is not in the public interest (to be discussed)
- the siting of the antennae or support structure is not in accord with municipal or state zoning or other laws
- the antenna or support would constitute a hazard to air navigation (to be discussed)
It is not certain whether the third ground for refusing a construction permit is based upon a constitutional limitation or upon a long-standing deference to local planning. It is clear that for any particular application, the FCC could preempt local ordinances prohibiting or restricting the use of a site for a radiocommunication tower but that it has ostensibly refused to do so.Footnote 126
For broadcasting undertakings the current authorization process ensures, through public notice and 'petition to deny' procedures, that competitors to an application or the affected municipality will raise a conflict with zoning ordinances, if such exists.Footnote 127
- Height of antenna and support structures
The FCC does not regulate the height of antennae or their support structures except in two respects. First, the Commission will ensure the height is the correct or minimum height to assure that the signal will correspond to the intended coverage area.Footnote 128 Second, as previously stated, applications which pose a danger to air navigation will require amendment or be denied.
- Co-location of antennae
At the federal level there exists a general policy which states that the sharing of support structures or site is a desired objective. Beyond this, the FCC can refuse a construction permit if a proposal threatens air navigation and an antenna farm located nearby is reasonably available to the applicant.Footnote 129 It appears to be settled policy that the Commission does not, and possibly cannot under current law, order tower or site sharing.
- Environmental impact
The Federal Communications Commission is responsible for a multi-stage assessment and justification process which creates onerous study and information requirements for both the applicant and the Commission itself.Footnote 130 The process is so onerous that upon every occasion when the eight preconditions under the regulation have been triggered, in all but two instances in the past thirteen years, the applicant has withdrawn the application or amended it so that an environmental assessment was no longer required.Footnote 131 The eight preconditions which trigger the process involve situations where the antenna proposal will: be located in a designated wilderness area; be located in a designated wildlife preserve; affect historic places or structures registered, or to be registered, in the National Register of Historic Places; be located in a floodplain; involve site preparations which will significantly change the existing surface features (i.e. drain and fill wetlands); be located in a residential area and be equipped with high intensity lighting; expose workers or the public to radio frequency emission levels which exceed ANSI STD C95.1-1982;Footnote 132 and, in addition to the above, the FCC itself may determine that a major environmental impact is likely and an assessment is therefore necessary.
- Safety regulation
There are only two areas where the FCC is directly involved in the safety aspects of antennae installation or operation. First, through its environmental impact process (discussed above) the Commission will not approve applications which will cause the levels of electromagnetic energy to which workers or the general public will be exposed to exceed current ANSI standard C.95.1-1985. (The Commission is currently reconsidering the extent of its involvement in this area.Footnote 133)
Second, under Part 17 of the FCC Rules,Footnote 134 and pursuant to the authority in the Federal Aviation Act, the location, height and radio interference potential of new radio installations are reviewed to ensure that the proposal will not be a hazard to air navigation. Assessment of the potential for obstruction to air traffic is performed by the Federal Aviation Authority (F.A.A.), but it is the FCC which controls the issuance of the construction permit.Footnote 135 The F.A.A. regulates obstruction marking and lighting to enhance the day and night visibility of antenna towers.
The Federal Communications Commission does not regulate the structural adequacy (from an engineering standpoint) of antenna structures, nor does it involve itself in the construction process per se.
The FCC does not directly regulate the appearance of a structure or the aesthetic state of the antenna site. The Commission's environmental impact process will involve an assessment of the visual impact of antenna proposals in a few limited circumstances.
- Express preemption of local regulation of antennae
In two instances the FCC has recently expressly preempted, to a limited extent, local ordinances affecting radio antennae and their support structures. The first, Memorandum Opinion and Order in PRB-1Footnote 136 preempts all local ordinances which effectively prohibit or significantly inhibit amateur (ham) radiocommunications. Amateurs in the U.S.A., through the American Radio Relay League, requested federal protection from such things as overly restrictive height limitations, unreasonably expensive application fees and expensive and time consuming zoning variance procedures. This preemption was applied in a recent judicial decisionFootnote 137 and substantial costs were awarded against a municipality which acted in defiance of the new preemptive statement.
The second preemptive statement involved local regulation of Television Receive Only (TVRO) satellite dishes which citizens were attempting to erect on their property.Footnote 138 According to this statement, an ordinance which unreasonably limits or prevents signal reception is preempted and of no effect if satellite dish antennae are being singled out in a discriminatory manner. Therefore, municipalities may not create location, height, diameter or shape rules which effectively preclude or restrict the siting of and reception to these antennae.
- Interference management
- The powers of municipal governments
In the United States the authorization processes employed by municipalities to regulate antenna systems differ little from those used to control the health, safety and aesthetic features of buildings and other structures located within their boundaries. Those who wish to construct or erect an antenna must apply for a building permit and the structure is regulated in accordance with existing ordinances. If the antenna is not expressly permitted in the desired area, an application for variance can be processed. This may involve an application fee, public notice and a public hearing.
While few municipalities currently regulate antennae in a comprehensive manner, ordinances concerning the following aspects of their siting, safety and aesthetics do exist and appear to be constitutionally valid.
- Location of antennae and their support structures
Municipal ordinances can and do regulate the siting of antennae and towers within their jurisdiction.
- Antenna moratoriums - it would appear to be legally permissible for local governments to enforce a temporary moratorium on antenna installations as long as the ruling is legitimately created to achieve a health or safety objective. Footnote 139 Long-term or permanent prohibitions likely are unconstitutional or too restrictive of competition to withstand legal challenge under anti-trust law.
- Zoning control - local governments may zone for antennae and their structures. In other words, commercial antennae may be prohibited in residential areas. Also, antennae farms can be created and land dedicated exclusively to that use. In both cases, the municipality must consider applications for variance if an applicant wishes to locate in an area where the antenna would not conform to zoned uses, but, if the local administration does not wish to vary the ordinance and the antenna can be accommodated elsewhere the requested, siting can be denied. As previously stated, the FCC may preempt the zoning ordinances for any particular applicant, but such action would require such strong and compelling national interestFootnote 140 that it is never or almost never done.
- Co-location of antennae - a few ordinances have gone far to force the use of antenna farms; to require applicants to locate new antennae on existing support structures and cause applicants for new towers to construct structures which exceed their own requirements (so that other antennae of future applicants can be reasonably accommodated). Such regulation appears to be valid so long as exceptions to the rules will be granted when technical problems will not reasonably permit such co-location.
- Set back - the actual placement of the antenna or support structure on the site is fully within the control of the municipal government as long as the radiocommunication functions of the station are not unreasonably impaired or prevented. When such is the case, set back ordinances usually permit alternate siting arrangements on an individual case basis.Footnote 141
- Height of antenna and support structures
Local administrations in the United States may control the height of radio antennae so long as they do not restrict the height beyond that expressly authorized by the FCC As previously stated, the FCC authorizes the minimum height necessary for the radio service to function properly. If the federal regulation does not expressly stipulate a height, (i.e. satellite dishes and amateur installations), the local restrictions should not impair the operative capacity of the station.Footnote 142
- Safety regulations
Local regulation of the safety of radio antennae and their support structures is extensive. The principal areas of activity are as set out below:
- RF energy exposure limits - the exposure of citizens or workers to electromagnetic energy is a matter which can be regulated by federal government and by both local or state governments. While local rules cannot authorize exposures which are prohibited by the FCC, they can and do set exposure limits which are more restrictive or stringent than those of the federal government.Footnote 143
- Structural adequacy - the construction of new radio antenna support structures or towers is almost exclusively under the control of local and state governments. The structure design, building materials and engineering standards are within the control of the local government where the structure is to be erected.Footnote 144 When additional loading is to be added to an existing structure, be it a communication tower or a building, it is the local administration again which is in control.
- Construction safety - municipal governments in co-operation with state administrations are responsible for such things as work site safety, electrical connections Footnote 145 and the inspections necessary to ensure that all engineering requirements and work safety rules are observed.
- Site security - in addition to requirements set by the federal government to avoid exposure of workers or the public to certain levels of RF radiation, local governments often request such things as fencing, sign posting, intruder alarm systems and anti-climb devices (for the tower) be added to the proposal.
- Site size - when tall antennae are constructed, local administrations often dictate the minimum dimensions of the site size so that falling ice or debris from the tower will not land upon surrounding structures. Site size requirements should not be used in a means to exclude certain antennae from residential areas (i.e. amateur and off-air TV towers).
As long as an aesthetic treatment does not impair radiocommunications, and is not unreasonably demanding or expensive in relation to the value of the particular radio installation involved, a municipality can require the following action:
- Design of support structure - not only can a local government dictate the engineering standards and design of a support structure, it can select one type of structure over another based upon visual impact features.Footnote 146 Particular construction materials can be required on the same basis.
- Colour of antenna or support structure -local administrations can require that certain antennae and their support structures be painted colours which make them more visually unobtrusive or aesthetically pleasing.Footnote 147 Of course, painting and marking requirements could not conflict with F.A.A. obstruction marking when such is required. A municipality may also forbid certain painting if used to create a billboard effect.Footnote 148
- Screening/landscaping - this in an aesthetic treatment which is often demanded by local ordinances for certain antenna installations when such are located very proximately to residential population. Parabolic dishes are frequently screened by requiring fencing, vegetation, earthen berms or roof-line architecture to lessen their visibility. Again, such requirements should be reasonable and should not interfere with the operation of the device. It is not unusual for broadcasting antenna installations to be screened at their base by evergreen planting. Also, requirements that an antenna site be maintained on a regular basis may be included as a condition of land use authorization.
- Siting requirements - one of the most common requirements for small antennae, especially those in residential areas, is that they be sited, relative to existing structures on the land, to minimize their visibility from the street. Many TVRO dish ordinances require that these antennae be installed in the back yard or relative to the roof line of the rear of the principal structure. Amateur antennae are frequently relegated to rear yards for the same reason. In either case, alternate siting arrangements must be available if obstructions at the site significantly impede radiocommunication.
- Other regulations
Local governments, in addition to the controls and objectives already discussed, can regulate such things as on-site parking and roads for access and egress at the site. In some cases, municipalities may require a radio licensee to carry a reasonable amount of liability insurance in case the antenna, or part of it, falls and damages surrounding structures.
- Location of antennae and their support structures
It is readily apparent that pursuant to their jurisdiction to make and enforce ordinances and regulations which relate to the health, safety and aesthetics of buildings and structures within their boundaries, local administrations in the United States regulate many aspects of antenna installation and operation and of their support structures. While this activity may delay somewhat an antenna installation and, at times, significantly add to the costs involved, the federal government's power to manage the radio frequency spectrum is not unreasonably impeded or interfered with. By means of such local regulation, the noxious or undesirable aspects of radio antennae are minimized where such is reasonably possible, yet radiocommunications can be fostered and developed in the public interest.
V. Guidance for Municipal By-Laws
The constitutional law material provided in this study confirms that the general legal principle, enunciated by the Department of Justice for Canada over ten years ago, is the law of Canada today. That principle is that provincial, hence municipal, governments do not have lawful jurisdiction to create enforceable rules which relate directly to radiocommunication, but a properly framed by-law relating only incidentally to radiocommunications, may co-exist with federal legislation provided such by-laws do not prohibit nor unduly restrict the conduct of radio services or the operation of federally licensed radio stations.
Following a review of: the federal legislation affecting radiocommunications; the policy created at the federal level pursuant to those legislative provisions; many of the historical, practical and technical issues involved; and the constitutional jurisdiction of the federal government over radiocommunications, the following general principles are offered regarding current law:
(May not regulate)
- municipalities have no lawful jurisdiction to manage the use of the radio spectrum. Therefore, provincial governments may not delegate power to manage any aspect of the nature or sources of radio interference experienced within municipal boundaries. To the extent that by-laws contain interference rules, they are of no force or effect.
- despite the issues of local safety involved, municipal by-laws may not lawfully set or police limits on the nature or duration of worker or citizen exposure to radio frequency energy. Provincial occupational health and safety legislation must defer also to federal authority.
- local ordinances, whether general land use prohibitions (zoning) or specific ordinances attempting to deal with radio antennae or towers, are ineffectual to the extent that they propose to prohibit the siting of either a licensed or unlicensed antenna. Nor may they require that antenna be co-located on an antenna farm or other manner.
- municipal rules may not expressly control or limit the type or height of an antenna system or support structure, for aesthetic or any other purposes.Footnote 149
- local administrations, through either municipal or provincial building codes or any other means currently available, have no lawful jurisdiction over the structural integrity or adequacy of an antenna or its support structure.
- local governments have full control over land in which legal title is vested with the corporation of the municipality. Controls over the health, safety or aesthetics of radio antennae sited on such land would lawfully be regarded as private controls on land if contained within private leases. Municipalities may designate such lands as antenna farms, refuse to approve building permits for any other structures lawfully within their jurisdiction and control access to the site by such leases. The provisions of such leases could offer preferred interference protection to municipal services sited at that location and control any other aspect of antenna regulation denied to items in (1) to (5) above. The municipality could not create private rules which caused itself or its lessees to breach federal spectrum management policy or federal aeronautical obstruction regulation. Local governments could not adopt by-laws or other rules which have the effect of forcing or coercing radio stations to locate within the designated area as opposed to some private site.
- when an antenna or antenna support structure is to be affixed to or mounted upon a building or structure, which is subject to municipal land use control, a local building permit must be secured in advance of construction or affixation. To the extent that such is reasonable and necessary, the municipality may set load, stress, electrical connection and grounding requirements (for lightning stroke only) as such may relate to the existing structure. Such requirements should not be used as a means of preventing or discouraging the particular choice of site.
- if an antenna supporting structure is to be used for some purpose in addition to the raising and securing of radio antennae, or if structures for a purpose ancillary to a radio station are to be co-sited with the antennae, a municipality has zoning and building permit control over the health, safety and aesthetics of the structures as such do not relate to the operational capacity of the radio system. Stated simply, when structural features are incorporated into, or added onto, or co-sited with an antenna and support structure, which are not a natural and necessary part of the antenna installation (i.e. production studios, scenic look-offs and restaurants, offices, warehouse structures, etc.), those features are subject to local regulation irrespective of the radio station. If such features would be contrary to existing municipal planning, permission to add them can be denied.
- subject to federal regulation which may be created in the future, safety issues such as electrical power interconnection, grounding (lightning stroke), fire fighting and prevention equipment (i.e. cooling apparatus), crane permits and work site occupational health and safety (unrelated to RF exposure) may be regulated through provincial authority and provincial and local building codes. Following construction, the security at the site (i.e. fences, intruder systems (if unmanned) and anti-climb devices), can be required locally, so long as such requirements are reasonable in relation to the cost of the installation. If an antenna is proximate enough for an antenna fall, or falling ice or other debris, to cause property damage to neighbouring land holders, third party liability insurance, commensurate to the risk realistically posed, may be required.
- when an antenna (and support structure) is to be sited within, or immediately adjacent to, an area where a strong and compelling local interest exists in the aesthetic character of the area (i.e. residential, heritage or developed recreational area), a local government may require reasonable accommodations to the siting, painting or screening of the antenna and support structure. Such can be required so long as the operative capacity of the radio device is not restricted or impaired and the cost is not unreasonable considering the cost of the installation. Therefore, the orientation of an antenna on its site can be controlled to minimize its visual impact, antennae and support structures can be painted to blend with their background, and natural and man-made screening can be used to screen a view from a particular perspective. Additionally, local rules could control the display of advertisements using satellite dishes, or other antennae or support structures. Of course, municipal aesthetic treatment may not conflict with federal aviation obstruction marking or lighting.
This study has attempted to identify the technical, policy, practical and legal problems associated with the establishment, and to some extent, the operation of radio antennae within Canadian municipalities. Guidelines, which try to bring some precision to the issue of the extent of the constitutional jurisdiction currently vested in municipalities to respond to these problems, are presented in the previous section of this paper. The creation of this guidance was complicated by the fact that no legal cases have been decided which go beyond the elementary issues of jurisdictional control over radio apparatus and over the establishment of radio stations. Also, most of the legal precedent concerns only broadcasting undertakings. As a consequence, the guidelines are a product of the blending of the technical, political and practical factors which appear to be relevant, as structured within the context of general constitutional principles and trends, and decided legal cases.
It is submitted that the guidelines do identify and, if applied, will protect the legitimate interests of the federal government and of municipal administrations in Canada, except in the following respects. The current constitutional powers of municipalities do not permit them to deny the choice of site for a radio transmitter and antenna. Nor do they permit local governments to require accommodations to the height, dimensions or structural integrity of antennae or support structures selected for a particular installation. Clearly, such powers would encroach upon the federal government's exclusive jurisdiction over radiocommunications.
This lack of municipal jurisdiction is significant because, while the number of such has remained few,Footnote 150 there have been cases in recent Canadian history where the applicant for a radio authorization selected a site, a support structure or antenna system which was clearly inappropriate relative to the nature or character of the area where the antenna was to be located. For example, commercial antennae and towers have been sited next to residential homes, agricultural land of national, economic and heritage importance has been selected for elaborate antenna proposals and satellite TVRO dishes have been mounted atop the uppermost parts of residential roofs.
According to the constitutional law of Canada, local or provincial governments cannot deny such sitings and pursuant to rules of legislative interpretation, the federal government cannot deny the radio authorization under the existing Radio Act or the Aeronautics Act (unless there exists a genuine spectrum management or aeronautic navigation problem). Therefore, when serious land utilization issues arise, no mechanism exists to consider them. Yet, due to the radiocommunication jurisdiction of the federal government, accommodations of this nature are within the exclusive constitutional competence of the federal government even if the Radio Act currently does not provide the legislative authority to do so.
Considering the low frequency of serious land utilization controversies which historically have arisen, the federal government may wish to inform municipalities of the full extent of their constitutional jurisdiction and take no other action. This is not recommended as there is substantial evidence that Canadian municipalities and their residents are becoming increasingly sensitized to this particular land utilization issue and that the frequency and strength of local objections is on the rise.
If the federal government elects to integrate land utilization and radiocommunication issues, the following policy implementation issues must be considered: Which land use and environmental policies are to be applied? Will the policies have a national or particularly local perspective? When radiocommunication and land utilization objectives are in conflict, which are to prevail? Should the locus of decision-making for such issues be at the local, provincial or federal level? If such is to take place at the federal level, should it be performed by the Department of Communications, the CRTC,Footnote 151 Environment Canada or some new antenna tribunal?
It is obvious that selecting the best course of action is not a simple task. Hopefully, this study will contribute, in a positive way, to the resolution of this growing land utilization problem.