Section D — The Six Policy Questions
Question 4. 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?
Clearly, the answer to Policy Question 4 is "Yes." For some time now in Canada individual land-use authorities and antenna proponents have been negotiating agreements that contain antenna-siting protocols. As will be explained below, many of these negotiated protocols address the planning and siting of antenna structures and they contain visual (impact) guidelines. While no existing protocols contain dispute resolution mechanisms, these can be included in the future, if appropriate. Within this section of the report, Canada's history with negotiated protocols will be examined. As well, the implications of the three issue areas noted above – the planning and siting of antenna structures, visual guidelines and dispute resolution mechanisms – will be discussed, and policy recommendations will be offered.
A. Canada's History with Negotiated Protocols
Almost all of our experiences to date with antenna protocols have related to agreements that have been negotiated over the previous eight year period between certain local land-use authorities and the major wireless carriers (the cellular and PCS providers).Footnote 222 These agreements have contained procedural and policy details regarding how antenna-siting issues will be handled within the particular local jurisdiction, and they have evolved over the previous eight years. While no two protocol agreements have been identical, typically they have provided a process for public hearings and permitted the local administration to influence certain antenna siting issues regarding the placement and visual impact of individual cellular and PCS antenna installations. Once negotiated, these protocols are endorsed by the local government council and then implemented as a signed agreement between the local government and the carrier(s) involved. Once a protocol has been established within one municipality, the other wireless carriers have tended to sign on to it.
Likely, Canada's first local protocol was a rooftop siting policy adopted in 1990 by the City Council of North York (within Metro Toronto).Footnote 223 In recognition of the fact that the City had no legal (constitutional) authority to create local by-laws that could impact directly upon antenna siting and placement, it adopted a guidance document as an alternative. With the support of the radio industry and the district office of the (then) Department of Communications, the city council was able to rely upon this protocol to influence certain rooftop siting decisions.
With the roll-out of digital cellular services in 1996, some of the urban municipalities where PCS antennas were first deployed began looking for a means to clarify and expand upon their role, and the role of concerned citizens, within Industry Canada's CPC-2-0-03. These municipalities focused upon the new towers which PCS systems required.Footnote 224 The municipalities of Edmonton,Footnote 225 Calgary, Oakville and Surrey were some of the first to negotiate public participation features within their protocols.Footnote 226 These protocols addressed issues such as when and how public participation (consultation) would be conducted, and how the results of the public consultation would be used in the decision-making process. Usually, the trigger for a public hearing was tied to the proximity of the location of the proposed tower to residential developments. A discretion to waive a public hearing was accorded to the local land-use authority if the visual impact of the proposed tower could be minimized to a satisfactory extent.Footnote 227 Generally, these protocols can be regarded as the first generation of such agreements, and they were used as models by a number of other municipalities.
The protocol negotiated in 1998 between the City of Calgary and the wireless carriers that were then operating in Alberta was the most comprehensive of its time. This protocol, written as statements of siting principles, included provisions that required the carriers to "take all reasonable measures" to optimize the use of tower co-location (where such improved the visual impact on the community affected) and to "maximize the use of installations other than towers in all residential communities as much as possible."Footnote 228 It also contained a number of visual impact guidelines.
In the fall of 1998, representatives from the Federation of Canadian Municipalities (FCM), the Canadian Wireless Telecommunications Association (CWTA), the major wireless carriers and a few Canadian municipalities attempted to negotiate a general protocol for national application. After a series of meetings these efforts broke down. Perhaps it was premature to attempt to create a national protocol at that time.
At the time of writing this report, antenna protocols for cellular and PCS installations are being used principally in Ontario, Alberta and British Columbia. Most of the larger municipalities are now in their second generation of protocol. In Ontario, where the up-take has been the greatest, it has been estimated that ten percent of the local land-use authorities have adopted an antenna protocol for cellular and PCS antennas. 229
In an effort to assist its' members who wished to establish their own antenna-siting protocols, in March 2002 the Federation of Canadian Municipalities (FCM) began mounting representative samples of existing protocols on its Web site.Footnote 230 As part of this antenna policy review, analysis was performed on the content of those, and a few other, sample protocols. Using a computer spreadsheet program, eight tables were created in order to compare and contrast the contents of 19 antenna siting protocols.Footnote 231 The municipalities represented within the tables are Airdrie, Alberta; Bighorn, Alberta; Caledon, Ontario; Chatham/Kent, Ontario; Colwood, British Columbia; Delta, British Columbia; Edmonton, Alberta, Guelph, Ontario; Langley, British Columbia; London, Ontario; Markham, Ontario; North Saanich, British Columbia; North Vancouver, British Columbia; Oakville, Ontario (two protocols); Port Moody, British Columbia; Strathcona, Alberta; Sudbury, Ontario; Surrey, British Columbia. These eight tables can be found at Appendix E of this report.
A review of the various elements contained within the 19 antenna protocols will reveal both significant degrees of commonality and variance between them. Viewed generally and over time, one must conclude that the various elements addressed within the most recent protocols have become more comprehensive in their scope. Due to the comprehensiveness of the issues addressed, most of the more recent protocols could be regarded as second generation in their development.
While Industry Canada's CPC-2-0-03 does not currently require that community groups or members of the public be directly consulted on antenna siting issues, most of the protocols examined make provisions for public hearings. Usually the onus is put on the wireless carrier to co-ordinate and conduct these hearings. The carriers must provide notice of the date, time and location of public meetings, and the name and telephone number of a representative from the wireless carrier. The protocols differ somewhat on how the public is to be notified of the particulars of the hearing. Some require door-to-door, hand delivery of notices within a specified distance from the base for the proposed tower,Footnote 232 others call for the publication of notices within a local newspaper. Most of the protocols contain a listing of land-use staff members, federal and municipal politicians, and community groups, all of whom must be contacted in advance of the hearing. A few protocols require signs to be posted upon the parcel of land where the tower is to be erected.Footnote 233
Eleven out of the nineteen protocols specifically list the information that is to be given to the public about a proposed tower installation. All of these protocols describe as essential information the (proposed) location of the tower, its height and its structural details (e.g. monopole, lattice style, self-supporting or guy wire supported). Several protocols also require the name and telephone number of a representative from the local land-use authority, and the inclusion of visual aids, such as photos, drawings and maps showing the proposed location of the tower and the distance from residential property and amenities. A few protocols require the circulation of a true-to-scale image of the proposed tower that is superimposed upon a drawing or photo of the area where the tower to be erected. Such images are intended to give the public a better appreciation of the visual and other impacts that the proposed installation may have upon the immediate and surrounding areas.
A majority of the protocols that call for public meetings require the wireless carriers to take minutes (detailed meeting notes) at the meeting and to file those notes with the local land-use authority. Typically, the minutes must highlight any public objections that were received and comment upon the adjustments made to the tower proposal in light of the objections, or explain why an accommodation was not feasible or appropriate.
Only one protocol addresses the antenna installations of a radio service other than those related to cellular and PCS networks. In 1998, the City of Calgary negotiated a protocol for amateur antenna siting with representatives from of the amateur radio community.Footnote 234 This agreement contains a number of policy guidelines applicable to the siting and visual impact of amateur towers that may be located within residential areas, and it provides for a public hearing if the proposed tower will exceed the threshold height of 18 meters (as measured from grade). At present, neither the City of Calgary nor the amateur radio community are fully satisfied with this protocol. Representatives from the City of Calgary would like to renegotiate the protocol because they have concluded that the guidelines were drafted in too casual a style and that it is too easy to avoid the local objectives sought to be achieved by the agreement.Footnote 235 The national amateur association, the Radio Amateurs of Canada (RAC), commented upon this protocol in their submission to the National Antenna Tower Policy Review.Footnote 236 While they agreed with most of the principles contained within the protocol, the RAC disagreed with the tower height threshold for construction without consultation of 18 metres from grade. The RAC insisted that the height of "typical structures" for amateur antennas should be regarded as being 21 metres high in urban areas and 31 metres in rural areas.Footnote 237 They would like to see the Calgary protocol changed to permit ham operators to build up to (at least) 21 metres without a formal review of the application or triggering a requirement for a public hearing on the proposal.Footnote 238
B. Implications of Local Protocols for the Planning and Siting of Antenna Structures, Visual (Impact) Guidelines and Dispute Resolution Mechanisms
i. Planning and siting of antenna structures
At their essence, the very purpose of almost all of the 19 protocols examined is the planning and siting of antenna structures. These protocols list locations where antenna towers are discouraged, such as historic, heritage and school areas, and locations that are encouraged, such as within or adjacent to industrial parks. Almost all of the protocols that make provision for public hearings/meetings offer guidance on how the hearings may be screened out or waived (in the discretion of a land-use staff member). Often a public hearing can be screened out if the proponent will agree to certain siting accommodations such as co-locating with existing antenna towers, siting near other urban infrastructure or locating the proposed antenna upon a tall rooftop.
Obviously, the best planning for the siting of antenna structures will be achieved in those situations where an antenna proponent reveals its current and anticipated network coverage requirements to a local land-use authority and requests that the authority work with the proponent in planning the siting of its network infrastructure. During consultations for this policy review, municipal planners and local politicians expressed a strong desire to engage in planning exercises intended to ensure that local and radiocommunication objectives could be more fully achieved.
Interestingly, at its 2004 Annual Meeting held recently in Edmonton, the Federation of Canadian Municipalities (FCM) endorsed the following policy recommendation regarding the creation of a national protocol for the planning and siting of radio antenna towers.
Industry Canada must develop a protocol to ensure that telecommunications companies work with individual municipalities in the development of site plan arrangements for the locating and construction of antenna towers.Footnote 239
Generally, the Type of collaborative site planning being recommended by the FCM does not occur in Canada within the wireless sector. In most cases network coverage requirements are determined and the proposed cell sites are planned by individual carriers before local land-use authorities are approached for siting approvals. Typically, the radio engineering team for each carrier will plan the location of the individual cell site; the property acquisition team will examine the relevant local land-use regulations to see if zoning or other restrictions might complicate siting decisions; and then the property acquisition team will secure options for long term leasing agreements with landlords who own suitable buildings and/or land that is located as close as possible to the cell site set out on the engineering diagrams and maps. The wireless carriers regard their network infrastructure plans as very competitive information that may be revealed outside of the company only on a need-to-know basis. This corporate culture is a natural product of the competitive regulatory model that has been created for cellular services in Canada. Almost every aspect of the business, including the planning of the cell sites, has strong competitive elements. Given the pervasiveness and force of this corporate culture it is difficult to see how a negotiated protocol alone could stimulate an increase in the planning and siting of antenna structures with local land-use authority involvement.
It should be noted that CPC-2-0-03 contains two separate provisions that may be interpreted as requirements that Type 1 antenna proponents reveal their antenna siting plans to land-use authorities. The CPC states that both broadcasting and non-broadcasting Type 1 proponents must "disclose their plans to land-use authorities."Footnote 240 The document goes on to advise that: "Early contact ensures an opportunity for full consultation." It is submitted that these policy requirements are not stated with the clarity, detail and force necessary to induce the wireless carriers to reveal details of their network plans to land-use authorities with sufficient lead time for cell sites to be planned in a co-operative manner.
As an alternative policy approach Industry Canada should examine the contents of the United Kingdom's Planning Policy Guidance on Telecommunications,Footnote 241 which contains clearer and more forceful policy statements such as the "Government strongly encourages telecommunications operators and local planning authorities to carry out annual discussions about rollout plans for each authority's area,"Footnote 242 "Pre-application discussions should be carried out between operators and local planning authorities on a specific development proposal and should be set within the context of the operators strategy for telecommunications development for the area"Footnote 243 and "[local and regional] Development plan policies should take account of ... the results of early consultation between planning authorities and telecommunications operators to enable the requirements of the telecommunications networks and routing and phasing of the network development to be taken into account..."Footnote 244
Of all of the Canadian protocols examined for this policy review, the protocol negotiated with all of the major wireless carriers by the City of Calgary should be highlighted as the protocol with the greatest potential to stimulate an increase in the planning and siting of antenna structures with land-use authority involvement. Included within the 13 principles that the companies have committed to when siting within residential areas is the requirement that,
Companies will cooperate with one another to provide a comprehensive overview to residents of all current and known potential equipment sites in their neighbourhood during each consultation process.Footnote 245
Also, prior to filing an application to the City of Calgary for a particular site approval, each carrier must engage in a "preconsultation" process during which potential cell site locations and other particulars are to be discussed at meetings with the relevant Alderman, local community organizations, and representatives from the city's Planning and Building Department. Both of these initiatives are intended to permit citizens, community groups, politicians and city staff to influence the selection of the site itself and the siting particulars before the filing of the Type of siting application that is anticipated within the terms of Industry Canada's Client Procedure Circular, CPC-2-0-03. In a working draft of a potential replacement for the current Calgary protocol, the City has expressed an intention to build upon its "pre-application" stages. For example, in the current discussion version of the draft protocol,Footnote 246 the wireless carriers are required to give notice to the local Alderman and to City staff of their plans to physically investigate an area for potential antenna sites before they commence their initial searches for appropriate sites. Additionally, under this draft, all required local and public consultations must be completed, and critical comments considered (over a two week period), prior to the actual submission of the application for local concurrence.
ii. Visual (impact) guidelines
An examination of contents of the protocols negotiated between local land-use authorities and major wireless carriers reveals that most of them contain some sort of visual impact guidelines. Seventeen out of the nineteen protocols examined require mitigation of the visual aspects of towers. They attempt to improve the visual impact through painting, decorative fencing, screening, landscaping and set-back requirements. Several of these protocols require that the carrier preserve the natural vegetation of the area. Some of the guidelines attempt to place limits upon the height, painting, lighting and the attachment of signs or advertising that may make the installation more obtrusive. Of course, these local administrations are aware that they may not require that the height of a proposed installation be reduced and they may not request accommodations to the painting and lighting of towers (or other supporting structures) that may interfere with the aeronautical obstruction painting and lighting requirements set by Transport Canada. A significant number of protocols specify that towers shall only accommodate telecommunications facilities: signs or materials not directly related to the equipment and towers are not permitted. It is a common feature for these protocols to require that the antenna tower be removed and the site restored to its previous state should the installation no longer be needed by the carrier.Footnote 247
The Calgary protocol contains a number of siting principles that amount to visual impact guidelines. The protocol states that the Wireless Telecommunication Industry jointly commits to take all reasonable measures to minimize the impact of sites on Calgary communities and that, in particular, the carriers commit to following four principles related to visual impact:
- We will be innovative and responsive in considering ways to minimize the impact of installations on the aesthetics of all communities.
- Companies will work cooperatively in taking all reasonable measures to optimize the use of co-location in communities, when doing so would decrease the impact of that site on the community.
- We will maximize the use of installations other than towers in all residential communities as much as possible.
- We will consider all options in design and technology to minimize tower height and impacts, and implement these options whenever feasible.Footnote 248
The City of Guelph, Ontario has taken a more detailed approach within its protocol on matters affecting visual impact. The Guelph General Development Guidelines state:
When considering new telecommunication towers, carriers shall give consideration to the following matters:
- New towers shall be considered only when other options have been considered and such options are deemed to be impractical or undesirable.
- The City will encourage the design and location of telecommunication towers to be as inconspicuous as possible upon the surrounding landscape. In particular:
- Views to significant local buildings, natural heritage features including the Speed and Eramosa Rivers, city parks and the downtown should be protected from the development of new towers;
- Towers and base stations should be located as far away from a public roadway as possible and away from adjoining property lines;
- Carriers are encouraged to propose tower locations and heights so that Transport Canada requirements will not necessitate the painting or lighting of towers. Where possible, towers and equipment shelters should be of a colour that is neutral or that blends in with the surroundings;
- The natural vegetation of a site shall be protected where possible;
- Towers over 30 metres in height should be minimized to the greatest degree possible;
- Stealth towers or monopole designs should be considered where possible to minimize visual impacts upon the surrounding area;
- Towers should be located a distance of at least 240 metres or six times the height of the tower from residential uses.
- Carriers are encouraged to consider locations within the City's industrial and rural areas.Footnote 249
iii. Dispute resolution mechanisms
Presumably, the third element within Policy Question 4 on Protocols is asking for policy recommendations on how a significant disagreement between an antenna proponent and land-use authority might be resolved using a negotiated dispute resolution mechanism. Disagreements could result from a resistance to siting accommodations requested by either land-use authorities or carriers, or to a complete breakdown of negotiations between both parties and the land-use authority indicating its non-concurrence to the antenna proponent (impasse).
As the antenna approval process is currently structured within CPC-2-0-03, the proponent and the land-use authority are expected to "consider each other's requirements and work toward solutions that minimize the impact [of the antenna and supporting structures] on the surroundings...."Footnote 250and "work toward a mutually acceptable agreement."Footnote 251 For Type 1 installations, the CPC states that: "Industry Canada does not play a direct role in the consultation."Footnote 252 Instead, Industry Canada limits its role to ensuring that the consultation takes place in a timely fashion and the department will provide some information and advice to the land-use authority. Should the proponent and the land-use authority reach an impasse in their negotiations, Industry Canada will entertain a petition by the proponent to issue the antenna authorization after reviewing all of the information submitted by the proponent. No provision is made within the CPC for the land-use authority to play a direct role in the petition process for Type 1 installations. Thus, for Type 1 installations, Industry Canada will enter the disagreement only at the point of impasse and, at that point, the matter may be determined without the direct participation of the land-use authority.Footnote 253 If, during negotiations, the parties have a significant disagreement regarding an accommodation, the contents of policy CPC-2-0-03 suggest that Industry Canada will remain detached from the dispute.Footnote 254
For Type 2 installations no particular process is specified for the negotiations between the parties or for the determination of the proponent's right to proceed with the installation should an impasse be reached or other significant disagreement occur. Since no particular authorization to proceed is required for Type 2 installations, at the point of impasse both the proponent and the land-use authority are left with no dispute resolution mechanism. The department's expectation is stated in these simple terms, "Industry Canada expects Type 2 radio station owners to address the concerns of the community in a responsible manner, and to consider seriously all requests put forward by the land-use authority."Footnote 255 As matters stand, should the proponent proceed with the installation and Industry Canada determine subsequently that the installation of an antenna structure is not appropriate within its surrounding "...it may request submissions [from the Type 2 operator] explaining why the structure should not be altered or removed."Footnote 256
Recommendation 25: That in all cases where consultations between antenna proponents and land-use authorities are required, a structured dispute resolution mechanism should be made available to the parties.
Such a mechanism should be provided within CPC-2-0-03 but offer the option for an alternative dispute resolution mechanism that may be negotiated between the parties.
The text of Policy Question 4 asks about the suitability of dispute resolution mechanisms that may be contained within an antenna siting protocol that has been negotiated between antenna proponents and land-use authorities. One clear limitation to negotiated protocols is that they bind only the signatories to them. Therefore, a negotiated dispute resolution mechanism will offer a useful policy option for some categories of radio service, but not others. For instance, while a small number of radiocommunication companies could undertake to bind the major broadcasting companies and wireless carriers in Canada, individual protocols would not be a policy option for Canada's 52,000 radio amateurs. Even the national amateur radio association, the Radio Amateurs of Canada, could not sign local land-use authority protocols on behalf of its 6000 members.
Accepting that dispute resolution mechanisms can be negotiated between certain antenna proponents and land-use authorities, it would be useful to offer a model protocol. Unfortunately, none of the antenna protocols used within the wireless sector appear to contain a dispute resolution mechanism. While generic alternative dispute resolution (ADR) models are readily available, it is important to find examples of negotiated protocols that are used in comparable situations.
It is submitted that Canada's railway sector may offer some useful lessons for the telecommunication sector when it comes to responding to the challenges presented by the disruptive influences that railway operations can have upon local communities. Citizens and municipalities have for many years raised concerns about disruptive rail activities such as train whistles, the blockage of roads at railway crossings, vibrations, train noises at rail yards and the use of herbicides to impede the growth of vegetation near rail facilities. Often referred to as 'proximity issues,' local municipalities have not been able to use bylaws to regulate directly in relation to these concerns because railway operations and facilities are regulated federally. As is the case within the telecommunications sector, bylaws attempting to regulate directly rail operations and facilities would be constitutionally invalid.
Significantly, even the history of attempts to resolve rail proximity issues at the local levelFootnote 257 is very similar to the history of attempts to resolve local antenna controversies. During the 1980s, in response to various residential complaints, individual train operating companies began negotiating guidelines or protocols with local land-use authorities. These protocols, which existed almost exclusively within the Province of Ontario, committed both the municipality and the rail operator to work together to minimize the disruption caused by the proximity to rail operations. The guidelines structured the behaviour of the railway company and the municipality. The company's disruptive behaviours were better managed through operational guidelines, and the municipality, in return, agreed to better manage residential development activities on lands located next to tracks and other rail facilities. Both the Canadian National Railway (CNR) and the Canadian Pacific Railway (CPR) negotiated dispute resolution mechanisms to accompany many of the guideline agreements they signed with municipalities. The contents, approaches and currency of the protocols and settlement mechanisms varied considerably. And, while the protocols offered some solutions for the municipalities and rail companies that negotiated and signed them, the vast majority of the rail routes in Canada, which brought trains into residential areas, were not covered by such agreements. A more comprehensive approach to proximity issues was needed.Footnote 258
In order to produce more consistent, comprehensive and broadly accepted guidelines, in April of 2003 the Railway Association of Canada (RAC) and the Federation of Canadian Municipalities (FCM) signed a memorandum of understanding (MOU) that provides a framework for both of these national associations, and their respective members, to work cooperatively to understand better and to resolve both current and emerging proximity issues.Footnote 259 The MOU structures the creation of a "steering committee," with an equal number of representatives from each side, which is to develop and implement various guideline and abatement strategies. It also calls for the RAC and the FCM to create a dispute resolution mechanism to resolve protracted disputes at the local level. Presently the parties are finalizing the text of a general dispute resolution protocol and it is expected to be implemented this fall.Footnote 260 The text relies heavily upon the dispute resolution protocols previously negotiated by the CNR and CPR. It is submitted that the contents of this protocol will offer a good starting point for those who attempt to create a dispute resolution protocol for implementation by wireless carrier and local land-use authorities in Canada.
Recommendations Regarding Protocols
The answer to Policy Question 4 is clear. Yes, protocols can be arranged between local land-use authorities and some antenna proponents regarding the planning and siting of antenna structures, visual guidelines and dispute resolution mechanisms. Based upon the many verbal and written submissions made on this subject to the National Antenna Tower Policy Review, and on other research done for the review, this study can conclude that the protocols negotiated and implemented by the major wireless carriers and land-use authorities in Canada have, for the most part, been a very positive development.
First, and perhaps most importantly, these protocols have supplemented and brought clarity to many aspects of the contents of Industry Canada's CPC-2-0-03. Most of these protocols have brought the public into the CPC's local consultation process through their requirements for public hearings. They have permitted local land-use authorities to influence the type of antenna structure used and, in many cases, its location, height, mounting, lighting, painting, landscaping and screening in ways not described within CPC-2-0-03, and in ways that go beyond the constitutional authority of provincial (and hence municipal) governments. Administrative and procedural details left unspecified within CPC-2-0-03, such as the identification of principle contact parties, the stages and requirements for approvals, and time frames for individual consultative activities, have been provided.
Second, these protocols have caused many local land-use authorities to identify and communicate (to wireless carriers) their important local amenities and planning priorities that may be impacted by the siting of significant antenna installations. These developments have expedited the planning and approvals necessary for the roll out of their networks. Some of these protocols have caused land-use authorities to identify their wireless communication priorities and, on occasion, certain lands and rooftops have been (pre)authorized for antenna installations.
Third, these protocols have been created and their contents have evolved in direct response to local concerns. The contents have been negotiated rather than imposed and, consequently, they have enjoyed a high degree of acceptance and compliance.
It is clear that Canada's wireless carriers have become increasingly supportive of negotiated protocols over the past three to four years. As one part of this national policy review an effort was made to solicit industry views about these protocols.Footnote 261 The carriers are under tremendous pressure to roll out their facilities and services and they therefore appreciate protocols that bring certainty and speed to these negotiation and approval processes. They support protocols that offer accelerated approvals if the carrier satisfies a local siting objective such as locating on existing antenna structures, siting in designated areas, constructing on rooftops or using camouflage technologies to hide antennas. When protocols provide for public consultations, the carriers prefer protocols that permit the use of open house formats as an alternative to town hall styles of public meeting.Footnote 262 They expressed the view that town hall meetings can be ineffective and unnecessarily controversial. Finally, the carriers objected to clauses within protocols that stipulate that antenna supporting structures may only accommodate telecommunications facilities. Municipalities are inserting these stipulations to prevent extraneous materials and advertising signs from being mounted on antenna facilities. The wireless carriers expressed concern that such stipulations inhibited the use of camouflaging materials that may help the installation blend into its immediate surroundings.
Not all of the protocols have made a positive contribution to the challenges of siting antenna structures. Some protocols have contained elements that are too vague, contradictory or clearly unconstitutional. Some seek to impose siting accommodations on the wireless carriers that are unreasonably expensive in the circumstances of particular siting challenges. Many of these drafting problems were caused because there is little technical support available for those municipalities wanting to create a protocol. As the number of these protocols increase, and as existing protocols are re-negotiated, the efforts necessary to respond will consume enormous resources for the wireless carriers. Those local land-use authorities that do not dedicate the resources necessary to create a protocol may be left with the vagaries and other problems existing within CPC-2-0-03. There is also the problem that only the signatories to these protocols are bound by them. This will limit their use for many radio service categories.
There is the Question of the inclusion of a dispute settlement mechanism within future protocols used within the wireless (cellular and PCS) sector. Based upon the consultations conducted for this national policy review, it is difficult to imagine the major wireless carriers supporting the use of a private dispute resolution mechanism that does not give Industry Canada the final decision as to whether the antenna installation will be erected or modified.
Recommendation 26: That the negotiation of antenna siting protocols between wireless carriers and local land-use authorities should be endorsed by Industry Canada because they supplement current radio regulatory policy in important ways.
Most importantly, these protocols cause the local land-use authority and the wireless carrier to identify and respond to the special concerns and unique amenities of each area subject to the agreement and, in many cases, they have brought the public into the decision making process. In the future, Industry Canada should support these protocols by permitting the carrier to opt out of certain general federal siting policies if the parties have negotiated the contents of an alternative specific guidance document.
While this policy review has concluded that negotiated protocols should be supported because of the policy refinements they permit, it is also a conclusion of this report that basic antenna siting principles of national application are needed in Canada. Only a small number of Canada's local land-use authorities are subject to these protocols and many do not have the technical expertise or resources to negotiate them with each major wireless carrier and keep them updated. If basic national siting principles are put into place, those local land-use authorities with the inclination, knowledge and financial resources necessary should be permitted to negotiate with the major carriers to refine them.
Recommendation 27: That federal policies related to the siting of antennas and their supporting structures for wireless phones be supplemented with general antenna siting principles or an industry code of conduct to be negotiated by a committee with suitable representation from local land-use authorities, the wireless industry and Industry Canada.
Australia, New Zealand and the United Kingdom have created guiding principles for antenna siting that supplement local, state and federal regulations. Australia has an Industry Code and a Code of Practice, New Zealand has National Guidelines, and the UK has a Planning Policy Guidance and a Code of Best Practice.Footnote 263 In each country, the guidance documents have been created through consultation with various levels of government and industry members, to ensure a balance of views. A document of Canadian guiding principles for antenna siting should be created, which will, like its international counterparts, increase public understanding, provide government guidance and advice, standardize practices for consistency, provide awareness of responsibilities and immunities, and encourage communication at all stages between proponents, local authorities and citizens.
Various options are available for enforcement of such documents. In Australia, the Federal Court can place financial penalties on the antenna proponents if they do not comply with the Code,Footnote 264 and the Telecommunications Industry Ombudsman hears disputes about breaches of industry codes of practice. The carrier must comply with the ombudsman's direction.Footnote 265 In New Zealand, the Environment Court helps to resolve disputes involving the application of the National Guidelines.
As an another example of voluntarily imposed antenna siting guidelines, in 2001 the United Kingdom mobile phone network operators published ten commitments to best siting practice for new development.Footnote 266 UK network operators have committed to:
- improved consultations with communities;
- detailed consultations with planners;
- site sharing;
- educational workshops for councils;
- a database of base station sites;Footnote 267
- compliance with exposure levels guidance;
- exposure guideline certification;
- prompt responses to enquiries;
- support for research into health and mobile phones; and
- the standardization of the documentation for planning submissions.
There is also the interesting Question as to suitability of similar protocols for the planning and siting, visual impacts, and dispute resolution challenges experienced by other radio services in Canada, such as amateur radio and radio and television broadcasting.