Report On the National Antenna Tower Policy Review (sf08343)

Section B — The National Antenna Tower Policy Review

Introduction

Since the late 1970s, there has been increasing growth in technology, particularly in the wireless sector. This growth is a result of accelerating demand for better communications and enhanced access across Canada and the world. Initially, the majority of wireless subscribers were businesses, but this has changed, and now approximately half of Canadians subscribe to a wireless service, while even more benefit indirectly from such services. Individual citizens are increasingly using wireless services for personal safety, entertainment, education, work, and to communicate with family and friends. Consumers are thus demanding a wide range of services and access to new technology for both essential and non-essential services, and this evolution of new wireless technology has necessitated the physical development of land. Accordingly, telecommunications policy must evolve in order to provide choices for consumers, while at the same time respecting the environment, public health, community goals and development plans.

Over the past twenty-five years or so within Canada, the vast majority of radiocommunication antennas and antenna support structures have been established, and the radiating and/or receiving elements set into operation, without objection from any quarter. Indeed, some antennas have been established at the behest of public and local government representatives who wanted to improve access to radiocommunication-based commercial, public, safety or entertainment services. However, land-use authorities, community groups and private citizens have not been supportive in all cases.

During the 1980s we witnessed a steady increase in the types and number of wireless devices and services deployed in this country. In particular, we saw the first mass markets in TVRO (television receive only) satellite services and the roll-out of the analogue generation of cellular communications. The external infrastructure (antenna-related and supporting) necessary for these new services appeared with increasing regularity – and they were regarded as quite visually intrusive by some citizens and by some of the planning staff and elected representatives of municipal governments. Additionally, municipal officials and members of the public raised other concerns such as those related to the possible health and safety effects associated with these installations and the economic impact on land valuation. In response, municipal representatives began asking the communications regulator to outline the extent to which municipal governments could lawfully manage/regulate the potential health, safety, economic, environmental and aesthetic impact from these antenna installations.

The Townsend Report

In December of 1987, the (then) federal Department of Communications (DOC) released a study entitled, Canadian Municipalities and the Regulation of Radio Antennae and Their Support Structures (hereinafter referred to as the Antenna Study). David A. Townsend, with Mary E. Hatherly, of the Faculty of Law of the University of New Brunswick, researched and wrote the report. That Antenna Study examined many of the technical, practical, regulatory and constitutional issues that surrounded radio antenna siting in Canada in the late 1980s. In particular, the study concentrated upon the antenna siting issues that were being raised by municipal governments and local citizens.

First, following an extensive review of Canadian constitutional law, the report concluded that provincial governments did not have any direct constitutional jurisdiction over radiocommunication that could be delegated to Canadian municipalities. Despite this, the study also expressed the opinion that:

This constitutionally-based conclusion was fully consistent with the legal advice that the federal Department of Justice had offered to the DOC within legal opinion letters and to municipalities as far back as the mid-1970s.

Second, the Antenna Study attempted to offer specific guidance about the nature and extent of (by-law) regulation that an 'incidental' power to regulate might permit. This guidance was premised upon an examination of the constitutional law and jurisprudence, the then-existing radiocommunication legislation (the former Radio Act) and upon numerous historical, practical and technical considerations. The guidance offered was divided into a "may not regulate" and "may regulate" advice section for municipal officials and this guidance appeared as Section V of that report.

While the municipal guidance contained within the Antenna Study was helpful, a number of provincial and municipal officials concluded that an 'incidental' jurisdiction did not adequately permit them to address the perceived local land-use concerns raised when significant antenna installations were established. Consequently, they contacted the Department of Communications and requested a greater role in the radio antenna authorization process.

In June of 1990, after a consideration of various options and in partial reliance upon the (clarified) legislative authority contained within the (new) Radiocommunication Act which had been proclaimed in October of 1989, the DOC changed its antenna authorization process for significant antenna installations. The department instituted a notification and consultation process that required certain applicants for antenna installations to consult directly with the appropriate land-use authority so that it might attempt to influence the ultimate placement and some other features of the antenna and/or its support structure. This consultation policy, with two revisions (the most recent revision was issued in 1995) and with supplementary regulation by other federal government departments, such as Environment Canada, has been in place ever since.

Antenna Siting Revisited, 1997

In January of 1997, Industry Canada engaged David Townsend of the Faculty of Law of the University of New Brunswick to revisit the antenna siting issue. Clearly, a number of circumstances had changed during the 1990s and the appropriateness of the municipal consultation policy that had been instituted in 1990 was being questioned in light of those evolving circumstances. In particular, the roll-out of new generations of wireless services, such as mobile telephony in the form of digital cellular and Personal Communication Services (PCS), had dramatically increased the number of requests for antenna sitings within the municipalities of major urban centres in Canada. Municipalities had a number of concerns related to the consultation process as it applied to the siting of cellular and PCS antennas and support structures in particular and, to a lesser extent, for certain other radio services.

Under the terms of this antenna investigation, data were collected from a number of print and human sources and a series of briefings and verbal reports were provided to Industry Canada related to the appropriateness of and potential for increased local involvement in the antenna authorization processes.

The Dobell Report

In 2002, Professor Emeritus A.R. (Rod) Dobell of the University of Victoria was asked to review and comment upon the circumstances surrounding the authorization of certain FM and TV broadcasting antennas and supporting structures located at Triangle Mountain, British Columbia. In particular, this review was asked to address two issues:

1. to determine whether the authorizations for the towers on Triangle Mountain in Colwood, B.C. were made in accordance with established Industry Canada regulations and procedures; and
2. to suggest recommendations for changes to the established Industry Canada procedures for consideration in the National Antenna Consultation process [then] announced.

Professor Dobell concluded that the towers on Triangle Mountain had been authorized in accordance with established Industry Canada regulations and procedures, but he raised a number of concerns about the policies and made a series of policy recommendations. The conclusions made and concerns raised included the following issues:

1. Industry Canada's regulatory responsibilities are unclear in reference to the procedures employed prior to installation of an antenna tower for a broadcasting undertaking.
2. Industry Canada is playing no direct role in the assessment of community concerns regarding antenna siting. This is being left to local land-use authorities and to the antenna applicant.
3. the regulations and policies used by Industry Canada to make determinations of "harmful interference" for situations involving broadcasting undertakings are underdeveloped.
4. the current antenna authorization policies are inadequate in relation to the notification and consultation of local land-use authorities and local residents.
5. Industry Canada's current policies and protocols for the authorization of broadcasting antennas place an apparent overemphasis on technical aspects resulting in an inadequate consideration of other complex matters such as those relating to the local impact of the installation.

National Antenna Tower Policy Review

On October 31, 2002, then Minister of Industry, the Honourable Allan Rock, announced that an independent party would be engaged to conduct a thorough study and public consultation on the current environment related to this nation's regulatory authorization processes for radiocommunication antennas and their supporting structures. In March 2003, Minister Rock announced that a team of researchers from the University of New Brunswick (UNB), led by Professor David Townsend of the UNB Faculty of Law, had been selected to undertake the National Antenna Tower Policy Review. Members of this team include: Keith Culver, Director of the UNB Centre for Social Innovation Research; Paul Howe, Assistant Professor in the Department of Political Science; Stephen Grant, Professor in the Faculty of Administration; Veronica McGinn and Mark Doucette representing the UNB Centre for Property Studies; and Mark Gallagher of xwave Solutions Inc., an Aliant company.

Minister Rock announced also that he had created a committee of experts, to be known as the National Antenna Tower Advisory Committee, whose mandate was to advise the policy review throughout the course of the consultation and research activities. The appointees to the National Antenna Tower Advisory Committee were: Rod Dobell, Professor Emeritus of Public Policy at the University of Victoria; Mary McBride, an epidemiologist at the British Columbia Cancer Agency; Frank Leonard, Mayor of Saanich, British Columbia; Nick Makale, Chair of the City of Calgary's Telecommunication Ad Hoc Committee; Roger Poirier, Executive Director of the Wireless Information Resource Centre and President of RBP Associates; Christine Racine, urban planning consultant in Montréal; William (Bill) Rowat, President of the Railway Association of Canada; and David A. Townsend, Professor of Law of the University of New Brunswick, who will chair the Advisory Committee. The advisory committee met on a monthly basis and provided advice on a broad range of matters related to the public consultation and the radiocommunication industry.

Under the terms of the research agreement, Professor Townsend tenders this report to Industry Canada with policy recommendations for improvement to Canada's antenna authorization processes. More particularly, this Policy Review provides recommendations related to the following six questions.

Questions for policy review

1. How can the local consultation process regarding the siting of a specific tower be improved?
2. What are the most appropriate time frames for the processes of approving and resolving debates surrounding specific tower placements?
3. What information would most benefit concerned members of the public and how should it be provided?
4. What means are available to readily identify whether proposed installations may create radiofrequency fields in excess of established exposure limits in areas where people live and work?
5. Can protocols be arranged between local land-use authorities and antenna proponents regarding the planning and siting of antenna structures, visual guidelines and dispute resolution mechanisms?
6. How and to what extent can tower sharing be utilized in order to reduce the total number of towers?
7. What evidence exists that property values are impacted by the placement of antenna towers?

Data Collection

Professor Townsend and the UNB Policy Review Team gathered research data from five principal sources:

1. an online public consultation through an e-town hall Web site,
2. personal and focus group interviews with some local community leaders who have participated in an antenna siting controversy,
3. in-person and telephone interviews with selected representatives of community associations, governmental departments, and the communications industry,
4. formal written submissions solicited from stakeholders (many of which have been mounted on the e-town hall Web site), and
5. independent public policy research conducted to contrast how antenna supporting structures are being regulated in other countries.

Data from Electronic Sources

An innovative e-town hall antenna Web site was launched publicly on 3 September 2003^{Footnote 1}. It operated actively from the 3^rd of September to the 24^th of October to distribute and collect data. The Web site was re-opened in November of 2003 to post all formal written submissions received as of that date, and to provide a brief update on the various data collection and other activities related to the National Antenna Tower Policy Review. Most registrants^{Footnote 2} were sent an email notice when the site re-opened, to inform them that an update on the status of the policy review was available online.

When in active operation, the E-Town Hall Antenna Web site permitted members of the public, and other interested parties, to learn more about antenna placement issues and to submit their views about possible improvements to Industry Canada's antenna tower approval policies. The site was designed to produce the look and feel of a real town hall meeting. Those wishing to learn more about antenna tower issues in Canada could read both the background information on antenna issues and the opinions submitted by others. Those wishing to submit their views electronically about antenna authorization issues could do so in four ways. Participants could fill-out and submit an online survey^{Footnote 3}, take part in an online discussion forum^{Footnote 4}, tender a formal written submission for posting, or express their views within an email sent to antenna@unb.ca or antenne@unb.ca.^{Footnote 5}

Approximately 1000 communications were obtained from electronic sources; 5% of the participants communicated in French. Three hundred and twenty (320) users registered on the e-town hall Web site to participate in the discussion fora and/or completion of the questionnaire. Of these, 235 users completed and submitted questionnaires, and 165 comments were posted in the online discussion fora, with the comments being viewed approximately 6,800 times. The questionnaire and the online discussion forums were the main methods of participation by the public and amateur radio users; industry participation was low, and government participation was only slightly higher. In addition to the e-town hall Web site, there was an abundance of email sent to the antenna review email addresses. Between 600 and 700 messages were received, with half of those being a submission of some kind, usually expressing thoughts on what the policy review should consider and conclude.

Written Submissions

Seventy-five (75) formal written submissions to the policy review were received. Most were posted on the e-town hall Web site. Almost all of the participants who filled out the questionnaire did so online, however six people asked to have the questionnaire mailed to them and one requester mailed it back.

Data from In-person and Telephone Interviews

During the course of the policy review, many interviews were conducted to augment the information received through the e-town hall Web site. While the majority of meetings were held with federal government and industry members, meetings were also held with various municipalities, provincial governments, citizens or citizen groups, radio amateurs and other associations from across the country. Of particular importance to the policy review was a field investigation performed in the Spring of 2003 in the Village of New Maryland, New Brunswick. As part of this investigation, face to face interviews with villagers were conducted to obtain their views surrounding the establishment of a 100 metre cellular tower within their community one year earlier. The report, called the New Maryland Tower Site Investigation, performed content analysis of the opinions expressed during the interviews and within newspaper stories and editorial comments written by local media outlets during the controversy.^{Footnote 6}