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Report On the National Antenna Tower Policy Review
Section D — The Six Policy Questions
Section D is the heart of the Report of the National Antenna Tower Policy Review. This section addresses each of the policy questions submitted for review by Industry Canada and provides policy recommendations. Almost all of the information provided within this section was obtained during the data collection phase of the policy review. All of the opinions and recommendations submitted to the review process were considered during the writing of this section of the report. Quotations from or references to many of the submissions are included within in the body of the text or in the footnotes. The recommendations represent the best judgement of the writer of the report, David Townsend.
Question 1(a) How can the local consultation process regarding the siting of a specific tower be improved?
If Question 1(a) were interpreted broadly the entire antenna report could fit within the answer provided. So as to intrude as little as possible upon the discussions and recommendations relevant to the other five policy questions, the answers to Question 1(a) will concentrate upon suggestions for improvements to the two land-use consultation processes that are described in Industry Canada's policy document, CPC-2-0-03-2-0-03: Environmental Process, Radiofrequency Fields and Land-Use Consultation, Issue 3, June 24, 1995. As explained in Section C of this report, the consultation processes described in this policy circular are tied to the particular conditions of licence for various categories of radio stations and to other policy documents, such as the Broadcasting Procedures and Rules. To the extent that the contents of CPC-2-0-03-2-0-03 conflict with a condition of licence or a policy described within a policy document written for a particular category of radio station, the contents of the CPC-2-0-03 is adjusted accordingly.
A. Legislative Authority over Consultations
The first recommendation related to improving local consultation should make clear that it is not a conclusion of this policy review that the legislative authority to regulate the siting of radiocommunication antennas and their supporting structures be delegated to provincial, territorial or municipal levels of government in Canada. To state the recommendation in positive terms:
Recommendation 1: That the legislative authority to regulate the siting of radiocommunication antennas and their supporting structures should remain exclusively with the Government of Canada.
B. Role for Community Groups and Concerned Citizens
As matters stand, no radio regulatory policies require that community groups or local citizens be consulted directly when antenna towers and other substantial antenna supporting structures are established in their communities. Canada does have experience with local consultations on antenna siting matters and, for the most part, these consultations have been fruitful from the perspective of all of the participants. To their credit, both broadcasters and Cellular/PCS service providers in Canada often have held public meetings about their antenna proposals without a regulatory requirement to do so.46 It is time to build upon those positive experiences.
CPC-2-0-03-2-0-03 makes references to community and local concerns yet provides no role for the citizens or groups impacted by the placement of significant antenna installations.47 There would appear to be an implicit assumption that a "municipal/land-use authority" will adequately represent its citizen constituencies or that the land-use authority will directly consult the citizens if it deems such to be advisable. Both assumptions may be unreliable. First, as will be explained below, there are significant problems with the current consultation process. Second, a municipal government, as a collective deciding body, must represent a broad range of interests and it is often difficult to adequately represent the interests of a small segment of the population. For example, a large cross section of a municipality may support the installation of a broadcasting tower, cellular antenna installation or fixed wireless broadband transmission facility because they want the service. These views may differ greatly from those held by the citizens who will live in close proximity to the antenna installation. Also, direct participation by the citizens or groups most directly impacted by antenna facilities is important because it may lead to the identification of particular siting changes or accommodations that can mitigate the negative impacts.48
Recommendation 2: That Industry Canada should ensure that the proponents of significant antenna structures be required to consult directly with the citizens who may be the most directly impacted by the establishment or modification of the structures.
C. Policy Framework for Consultation Requirements
It is a conclusion of this policy review that meaningful consultations involving antenna proponents, land-use authorities and local citizens should occur when significant radio antennas and supporting structures are established or modified within Canadian communities. This report also concludes that such consultations can and should occur within a (comprehensive) radio regulatory policy framework.
Currently, a general policy framework for land-use consultations is described within CPC-2-0-03-2-0-03. This document was last revised in1995 and is now out of date. Radio users, land-use authorities and citizens who attempt to rely upon its contents may be misinformed about the consultations required for a particular antenna siting.
For most categories of radio stations in Canada the relevant consultation requirements for each are imposed as conditions of licence. While it has been quite common to require as a licensing condition compliance with all or part of CPC-2-0-03-2-0-3, it has also been common to reference the CPC-2-0-03 and yet impose substantive and/or procedural elements that differ from the consultation elements described in the circular. This has been especially true for radio stations authorized through "Spectrum Licensing." For example, for the Spectrum Licensing scheme recently imposed upon all categories of cellular service provider,49 a number of consultation requirements were imposed as licence conditions that do not fit within the two consultation models (Type 1 and Type 2 station) described within the CPC-2-0-03 document.50 Clearly, Industry Canada must revisit the policy framework it created in 1990 to see if it should be abandoned or adjusted in light of the differing consultation requirements imposed upon various categories of radio stations.
Recommendation 3: That the policy framework involving document CPC-2-0-03-2-0-03 and the other licensing and policy documents that describe differing land-use consultation requirements for particular types of radio stations should be examined. The consultation requirements for various categories of radio stations may be too different to be described within a single policy circular.
D. Classification of Radio Stations as Type 1 or Type 2
It is logical to create both structured and flexible land-use consultation requirements for antenna proposals, and to mandate the use of one or the other (structured or flexible) based on assumptions about whether the siting of a particular type of radio station has the potential to produce a high or low impact upon a surrounding community. Other developed nations have used such policy distinctions.
As discussed within Section C of this report, policy document CPC-2-0-03-2-0-03 contains two land-use consultation models: one is much more structured than the other, and the structured model calls for more oversight and involvement by Industry Canada.51 The structured consultation model is applied to "Type 1 radio stations". These are radio stations that require a site-specific approval before the antenna can be constructed or put into operation. All broadcasting undertakings and certain non-broadcasting land and coast stations require a site-specific certificate or licence.
Under this CPC-2-0-03, the flexible land-use consultation model is reserved for Type 2 radio stations. These are stations or radio apparatus that either: (1) require a radio authorization (typically a licence) that is not site-specific or (2) are licence-exempt but must comply with specified power, frequency and other technical limits. While most of the more recently created policy documents rarely use the terms Type 1 and Type 2 stations, they explicitly do note whether the licence being described is a site-specific form of radio authorization.
When the Type 1/ Type 2 designations were created within the CPC-2-0-03 in the mid 1990s, the overall radio licensing scheme in Canada tended to support the assumption that the potential land-use impact of the antenna systems of Type 2 radio stations was much lower and more localized (than Type 1 stations) and, consequently, a flexible consultation model was appropriate.52 Amateur Radio and Citizen Band (GRS) radio stations are good representative examples of Type 2 stations that have benefited in the past from the flexible land-use consultation model.
The radio station authorization scheme in Canada has changed considerably over the past 10 years and original assumptions about the relative land-use impact of Type 1 and Type 2 stations are no longer reliable. The department has dramatically reduced the number of individualized licensing transactions through the use of radio "System Licensing" and "Spectrum Licensing." Also, new digital radio apparatus that is licence-exempt can be deployed within fixed wireless transmission facilities that may require substantial antenna towers or other supporting structures. As no authorization is necessary to deploy this radio apparatus, the radio station would be regarded as fitting the Type 2 category.
Recommendation 4: That Industry Canada should examine the practical implications of using the requirement for a site-specific radio authorization ("Type 1" and "Type 2" radio stations) as a means of streaming radio station approvals into the structured or the flexible land-use consultation model.
E. Policy Trigger for Mandatory Consultations
At present, land-use consultations are required for all categories of broadcasting stations and for all categories of cellular service provider in Canada. These obligations are imposed as conditions of the relevant licence or described within particular policy documents written for the station and apparatus type. For all other categories of radio station, and for certain licence-exempt radio apparatus,53 the proponent of the antenna installation under consideration must interpret and apply one of the two criteria described in CPC-2-0-03-2-0-03 to determine whether land-use consultations are required in the particular circumstances. Before establishing or modifying a Type 1 (site-specific authorization) radio station, the proponent must determine whether the resulting facility will be a 'significant antenna structure.' If so, (prior) land-use consultations are required. According to this CPC-2-0-03, those wishing to install or modify the antenna systems of Type 2 radio stations (no site-specific authorization) must consult with the relevant land-use authority if the station proponent feels that "community concerns could be raised..." Other categories of Type 2 radio stations, such as those authorized by Spectrum Licence, have an obligation to consult with the relevant land-use authorities if their proposal involves the approval of a "significant" antenna structure.
Neither CPC-2-0-03-2-0-03 nor any of the new Spectrum Licences that have used this term within their licence conditions have offered any guidance on how the licence applicant is to determine the 'significance' of the planned structure. Does it mean significance in size in relation to other antenna structures? Significance in relation to the surrounding land-use patterns? The significance of the proposal to the land-use authority or to the people living in the community? Policy guidance must be provided by Industry Canada for this term in order to bring more certainty to the consultation process for all concerned parties. Many of those who participated in the national public consultation for this project held this view.54
As noted above, the policy trigger in document CPC-2-0-03-2-0-03 for mandatory land-use consultations for Type 2 radio stations is whether the antenna proponent feels that community concerns could be raised. While this phrase does provide a definite context for this determination it does not offer the degree of certainty necessary. The antenna proponent makes this determination alone. Industry Canada does not have a role until the antenna is erected or modified.55 The final determination for the department is whether the antenna structure, when completed or modified, 'is appropriate within its surroundings.' More certainty must be brought to this phrase also. Obviously, it is much more difficult for a land-use authority to argue that it should have been consulted and accommodated once the structure is erected or modified.56
Recommendation 5: That more policy guidance must be provided by Industry Canada to radio users, land-use authorities and the public as to the policy criteria that will make a land-use consultation mandatory for antenna proponents.
F. Consultation Issues and Accommodations
CPC-2-0-03-2-0-03 states that the consultations between the land-use authority and the antenna proponent are to provide an "opportunity to have land-use concerns addressed" and that the two parties will "propose and examine alternatives and in so doing, will give consideration to each other's needs." The document also provides that "...the parties should consider each other's requirements and work towards solutions that minimize the impact on the surroundings...." Similar phrases appear within the licensing conditions issued for particular categories of radio stations.57 Even with such phrases, there is very little information within these various documents about the types of issues up for discussion and the nature of the accommodations that a land-use authority might legitimately request of the proponent.58
CPC-2-0-03-2-0-03 also states that the consultations will provide an opportunity to have "land-use concerns addressed while respecting federal jurisdiction for the installation and operation of radiocommunication systems." Does this mean that the only legitimate requests for accommodations must relate to those matters within provincial constitutional jurisdiction (and that have been delegated to the local government level)? If that is so, the only accommodations which land-use authorities can negotiate are things such as the type of security fencing surrounding the antenna site and the planting of vegetation near the site to provide visual screening for the radio equipment shed. High on the list of matters to be discussed at local consultations with municipalities and members of the public are the visual impact of the structure, the potential for health effects to humans from exposure to radio energy and the potential for interference problems. Often, local governments and citizens have been told that interference management and human exposure to radiofrequency energy issues cannot even be put on the agenda for consultations.
Recommendation 6: That radiocommunication policy addressing local consultations should specify the issues that may and may not be discussed. Also, land-use authorities should be informed about the nature and extent to which they may legitimately request siting-related accommodations from antenna proponents.
G. Criteria for Determining Local "Concurrence"
According to current radiocommunication policies addressing local consultations, the proponents of the antenna systems for both Type 1 and Type 2 radio stations may proceed to install or modify their structures if "concurrence" is obtained from the relevant land-use authority. A number of policy issues have arisen in regard to securing local concurrence. For example, when antenna proponents file their plans with municipal land-use authorities, they often do so at the development officer's desk. Frequently, the proponent will be issued a building permit by the by-law officer upon a quick check of the local by-laws. Certain antenna proponents in Canada have regarded the issuance of a building permit as evidence of local concurrence. The underlying problem here is that local by-laws are often out of date on the issue of radio antenna matters. Historically they have been treated like utility poles and have been designated as structures "permitted in all zones." Even if a land-use authority were to attempt to create a by-law that dealt explicitly with antenna siting issues, it is likely that many elements of it would infringe upon federal constitutional authority and be ultra vires. Also, Canadian land-use planning law states that a development proposal must be assessed using the municipal laws in existence at the time of filing for approval. Therefore, by-law officers and other municipal officials may examine their by-laws and determine that they have no choice but to issue the building permit to construct or modify the antenna and supporting structure.
Under Canadian constitutional law radio regulatory matters fall exclusively within the jurisdiction of the federal government. Therefore local by-laws may touch upon radio antenna issues only in an incidental way, unrelated to their operative aspects. One policy consequence of this is that a local building permit should not be regarded by antenna proponents as authority to construct.59 Henceforth, if an antenna proponent is issued a building permit for an antenna, the proponent should regard the document as no more than an acknowledgment of receipt of the documents provided to initiate land-use consultations.
As another example of local concurrence problems, there is no protocol on who may speak to an antenna proponent on behalf of a municipality. In a recent case, a mayor, who had decided not to run in the up-coming municipal election, told an antenna proponent that it could commence construction of a broadcasting undertaking but the mayor had not consulted the municipal council.
The lack of a policy protocol on concurrence has frustrated antenna proponents also. During consultations for this report some members of the radiocommunication industry complained of negotiating siting accommodations (and approval) with one municipal official, politician or body, only to have another claim that the decision reached was not valid or was being overruled.
Recommendation 7: That policy documents addressing land-use consultation issues should offer a protocol for the expression of concurrence/approval by land-use authorities. Such a protocol will provide more certainty for land-use authorities, antenna proponents and Industry Canada. The protocol should make clear that the issuance of a local building permit is not evidence of land-use approval.
H. Policy Framework for Dispute Resolution
In many cases consultations between antenna proponents and land-use authorities reach an impasse situation. The proponent may be focussed upon a site that the planning authority regards as unacceptable or the parties may disagree as to the nature, extent, cost or cost sharing of siting accommodations deemed necessary by the land-use authority. Currently, Industry Canada's policies for dispute resolution when land-use consultations reach an impasse are very undeveloped. For most Type 2 radio stations departmental policies do not provide a dispute resolution process.
For Type 1 radio stations (requiring a site-specific authorization), the dispute resolution process set out within CPC-2-0-03-2-0-03 does not appear to have been supplemented through the use of licensing conditions or other radio policies. This is unfortunate because there are a number of problems with it. First, upon impasse, the dispute resolution activities involve only the antenna proponent and representatives from Industry Canada. From the text of the policy document, it would appear that the local perspective is provided by the proponent from documents and opinions it submits to Industry Canada. Clearly, the antenna proponent's submission to Industry Canada should be shared with the land-use authority. The department should consider the submission and any local reply to it when deciding whether the licence will be issued.
Second, much more detail must be provided on how the impasse process will work (e.g. the respective roles of all parties, how various decisional criteria will be applied, the use of time limits for various stages, etc.)60 Third, many of those who participated during the public consultation stage for this policy review insisted that Industry Canada play a more active role generally during the consultation stages. In particular, they thought that the department's role should become more active if the consultations reach an impasse situation.
No impasse process is supplied within document CPC-2-0-03-2-0-03 for Type 2 radio stations. Industry Canada generally is not involved in 'Type 2 consultations' between antenna proponents and land-use authorities. If local opposition has been expressed, the department will review the appropriateness of the antenna system once it has been established. Considering that antenna facilities that may now be authorized under the approval policies for Type 2 stations can range from sizable commercial structures to amateur radio antennas to unlicenced satellite dishes, this lack of process and oversight by Industry Canada may lead to inconsistent results.61 Not all Type 2 radio stations suffer from a total lack of policy structure surrounding consultation and impasse processes. It should be noted that a few of the categories of radio stations that are authorized by Spectrum Licence are required to comply with particular consultation and dispute resolution policies.62 These, also, are very undeveloped.
Recommendation 8: That all land-use consultation policies should provide a framework for a dispute resolution process. In particular, the land-use authority should be given the opportunity to reply to the submission tendered to Industry Canada by the antenna proponent. Any new consultation policies should give Industry Canada a more formal and active role in circumstances where local consultations reach an impasse.
I. Consultation Document for Land-use Authorities and the Public
Generally, the content of CPC-2-0-03-2-0-03 and the licensing documents that address local consultations reveal a preoccupation with the relationship between antenna proponents and Industry Canada.63 This casting to the documents sends a negative message to land-use authorities and citizens regarding the utility of their involvement in local consultations.64 It would not escape the notice of local government officials or members of the public that CPC-2-0-03-2-0-03 refers to the antenna proponent as Industry Canada's "client." While the document itself is a 'client procedure circular' this is the key document which is available to local municipalities and to citizens to explain how consultations will be conducted. What faith can a land-use authorities or citizens have in the fair resolution of an antenna dispute if the document setting out the process describes the proponent of the matter as the client of the final decision maker?
The best way to offer land-use authorities and members of the public a balanced document on antenna consultation issues is for Industry Canada to create a counterpart document to CPC-2-0-03-2-0-03 that focuses upon antenna-siting issues and the consultative processes from a local perspective.65
Recommendation 9: That Industry Canada should create a counterpart document to CPC-2-0-03-2-0-03 for use by land-use authorities and citizens. This document should explain antenna-siting issues and Industry Canada's consultation processes from a local perspective.
J. Industry Canada's Role in Local Consultations
According to CPC-2-0-03-2-0-03, "Industry Canada does not play a direct role in the consultation." Generally, for Type 2 radio stations, the department plays no role. These policies must be re-thought. Data collected for this policy review clearly demonstrated that the radio industry, land-use authorities and private citizens think that Industry Canada is too far removed from the consultation process. Within his examination of the consultations that took place at Triangle Mountain, British Columbia, Professor Rod Dobell criticized Industry Canada for not having a direct role in the consultation process.66 It is submitted that direct involvement by Industry Canada officials is a pre-condition to 'meaningful' consultations at the local level.67
Recommendation 10: That Industry Canada personnel should take a more active role in the local consultations that occur between antenna proponents, land-use authorities and the public.
K. Local Consultations and Antenna Site/Tower Sharing
Question 5 of the National Antenna Tower Policy Review asked how tower-sharing and antenna siting-sharing can be utilized in order to reduce the total number of towers. The reply to Question 5 fully explores those policy objectives. That material should not be repeated here, but the successful implementation of antenna sharing policies does have a direct tie to local land-use consultations. If land-use authorities and citizens are sufficiently aware of Industry Canada's policy requirements and expectations for site or tower sharing they can play a challenge function during consultations with the proponent to encourage more co-location.68 Also, well informed municipalities will be better prepared to work with antenna proponents to identify lands or areas where multiple antenna sitings can be accommodated.
CPC-2-0-03-2-0-03 contains only two references to site-sharing. One is set out within a part of the document that is directed to the attention of "clients." The other reference is contained within a discussion of the objectives of the land-use consultation. Here, the document states, "...the parties should consider each other's requirements and work towards solutions that minimize the impact on the surroundings, including considering existing sites, while not unduly prohibiting the development of the radio facility." As an expression, the consideration of "existing sites" may mean very little to a land-use authority. Both treatments represent lost opportunities to lay a foundation for an increase in the site and tower sharing activities in Canada. The main policy document for broadcasters, Broadcasting Procedures and Rules, Part I: General Rules,69 also contains a general policy expectation that broadcasters work cooperatively to share antenna structures.
Recommendation 11: That land-use authorities and members of the public should be fully informed about the site and tower sharing obligations, or policy expectations, set by Industry Canada for antenna proponents. The department should regard local consultations as activities strategic to the implementation of its policy objectives for antenna co-location.
L. Information about Compliance and Sanctions
Within CPC-2-0-03-2-0-03 and its attestation form (Annex 1) there are at least five references to the proponents of Type 1 and Type 2 radio stations having to 'accept the consequences' of proceeding without consulting local authorities, proceeding without waiting for a reply from the land-use authority or for wrongfully attesting/asserting that an installation, or its modification, will be insignificant. These references to regulatory compliance and enforcement activity are too vague to be credible.70 In order to lay a foundation for their negotiations and requests for siting accommodations, land-use authorities must be aware of the policy consequences for antenna proponents if they refuse to consult or they negotiate without making a genuine commitment to the process.71
During the public consultation phase for this policy review the Federation of Canadian Municipalities (FCM) and some citizens complained that significant antenna installations had been established without any notice to consult being served upon the relevant land-use authority. Also, regional staff of Industry Canada expressed concern that the content of CPC-2-0-03-2-0-03 and other policy documents did not provide a sound legal foundation for actual enforcement of the consultation requirement. This, even though prior consultation is a condition of radio authorization in some cases. The recent Thompson72 case from Vancouver Island, involving an amateur radio operator who refused to accommodate requests made by the local land-use authority and would not comply with instructions issued by Industry Canada, suggests that there are compliance issues to address regarding local consultations.
Recommendation 12: That land-use authorities, members of the public and antenna proponents should be fully informed about the compliance and enforcement activities available to Industry Canada, should antenna proponents fail to meet policy requirements for local consultations.
M. Information on Obligations to Abate Electromagnetic Interference (EMI)
CPC-2-0-03-2-0-03 contains no reference to the electromagnetic interference (EMI) issues that may be raised in relation to the establishment of many categories of radio stations or to the obligations to resolve interference problems. These issues and obligations are of great interest to land-use authorities and citizens during local consultations.
The technical parameters and limits applicable to all categories of radio stations and licence-exempt radio apparatus are specified by Industry Canada. These are to ensure that each radio station or device is neither subjected to, nor causes, a level of interference that is regarded as unacceptable. No radio station, radio apparatus or non-radio equipment (that may be sensitive to radio energy) enjoys interference-free operation. All radio apparatus and non-radio equipment that emits radio energy73 must operate strictly within the technical parameters and limits applicable to each category. "Radio-sensitve equipment"74 is expected to have certain radiofrequency-rejection or immunity characteristics so that it can function as intended, despite the presence of radiocommunication emissions.
As one means of controlling interference, some operators of radio stations/apparatus are expected to make on-site adjustments to the parameters (such as the frequency, power or location) of their transmitting and/or receiving equipment. Broadcasters,75 amateur radio operators76 and the users of licence-exempt wireless devices77 are good examples of spectrum users who have obligations to make on-site adjustments to their apparatus in certain circumstances.
When new or modified radio transmitters are proposed for communities where people work and live concerns are often expressed about the potential for and resolution of interference problems. Electromagnetic interference (EMI) issues are (almost) inevitably raised by land-use authorities and citizens when they present multiple objections to an antenna proposal. It is important that very basic information about EMI, and about the various obligations to resolve EMI problems, be referenced within local consultation materials prepared by Industry Canada.
It is not being suggested that land-use authorities or citizens be accorded the opportunity to challenge the interference protection criteria and obligations set by Industry Canada. The effect of this recommendation is that those who are concerned about the possibility of EMI be made aware that spectrum users may have obligations to abate EMI problems and that Industry Canada will oversee such determinations. In some cases involving interference, Industry Canada expects that local citizens will join with spectrum users in activities intended to resolve the EMI problem(s).
Recommendation 13: That land-use consultation materials prepared by Industry Canada should contain very basic information about electromagnetic interference (EMI), about obligations to resolve EMI problems and about Industry Canada's respective role.
N. Swamping and Immunity Determinations Involving Broadcasters
Radio engineers recognize a basic difference between "swamping" and "immunity" problems when electromagnetic interference (EMI) is experienced. In situations where the problem is classified as one of "swamping," the emitter of the radio energy is deemed responsible for the interference because it is creating a power density at a particular location that (1) exceeds established emission criteria measured by distance from the transmitter or (2) is in excess of a reasonable power density level determined in consideration of the characteristics of the radio apparatus or non-radio equipment that might usually be found operating at a particular location. For "immunity" problems the recipient radio-sensitive equipment or radio apparatus is deemed responsible because it is unreasonably susceptible to the RF energy that might reasonably be expected at a particular location.
Generally, when radiofrequency power density is measured at a particular location, its electric field strength is registered in volts per metre (V/m). So too, the immunity (or electromagnetic rejection) characteristics of certain devices are measured in volts per metre. For example, when procuring electronic equipment for use by the Canadian military such equipment is specified to withstand the presence of certain electric field strength levels (specified in V/m) and yet continue to perform their various functions.78 Currently most medical devices purchased for deployment within Canadian hospitals are required to have immunity specifications of up to 3 V/m for devices deployed on the ward and 10 V/m for medical devices used for emergency and home care contexts.79 The electronic devices (e.g electric organs) and radio apparatus (televisions, radios, baby monitors, etc.) found within most homes can reasonably expect to have certain immunity characteristics also. In the late 1980s, the U.S. government considered requiring all home entertainment equipment (HEE) to be manufactured to operate, without significant degradation in performance, despite the presence of an electric field strength density of 1 V/m. That regulation was never enacted in the U.S.A. or in Canada.
Historically and presently most of the interference complaints received by Industry Canada and the Federal Communications Commission (FCC) relate to disruptions to the functioning of the electronic equipment that one would find within the average home. When interference is experienced the challenge is to make determinations of fault when no immunity standards exist for such equipment. As a 'work-around solution' Industry Canada has created a policy for distinguishing between swamping and immunity problems involving home electronic equipment by using field strength values that roughly correspond to notional immunity levels for three categories of home electronic equipment.
Section 5(1) (l) of the Radiocommunication Act permits the Minister of Industry to make determinations of the existence and cause of "harmful interference," and to issue orders to the appropriate person(s) in control of the "radio apparatus, interference-causing equipment or radio-sensitive equipment" deemed to be at fault, to cease or modify the operation of the blameworthy equipment or apparatus "until such time as it can be operated without causing or being affected by harmful interference."
In order to assist departmental inspectors in making determinations of harmful interference, Industry Canada has produced two policy documents. The first is entitled Electromagnetic Compatibility Advisory Bulletin: "Criteria for Resolution of Immunity Complaints Involving Fundamental Emission of Radiocommunications Transmitters," EMCAB-2, Issue 1, June 1994. EMCAB -2 provides a table of field strength values (specified in V/m as measured at the premises of the affected equipment) that are used by the department to distinguish between swamping and immunity problems in relation to determinations of harmful interference under section 5(1)(l) of the Radiocommunication Act. The second policy is called Spectrum Management, Client Procedures Circular: "Determinations of Harmful Interference With Respect to Radio-Sensitive Equipment" CPC-2-0-03-3-14-01, Issue 1, April 1, 1997. CPC-2-0-03-3-14-01 provides an overview of the procedures, processes and fees associated with making interference determinations using the table of field strength values set out in EMCAB-2.
Table 1 in document EMCAB-2 provides field strength values for "broadcasting receivers"80 and its "associated equipment,"81 which are both set at 1.83 V/m; and "radio sensitive equipment"82 which is accorded the field strength value of 3.16 volts per metre. EMCAB-2 explains how these three equipment categories and values will be used:83
It is well known that both broadcasting undertakings and amateur radio installations can, in certain situations, create electric field strength densities in the range of 9 V/m, and above, within the homes located nearest to the relevant antenna systems.84 Such readings are well in excess of the immunity characteristics that one might reasonably expect to find in mass-market consumer goods, like home electronic equipment; and serious interference problems may be anticipated.
It is submitted that the complaints resolution policy contained within EMCAB-2 is an effective policy approach for handling immunity and swamping problems, like those noted above, in an expeditious and inexpensive manner. If co-operative efforts between the radio user and the citizen cannot resolve an interference problem, Industry Canada is available to perform tests within the citizen's residence. If field strength values are above those specified in Table 1, the department can require the radio user to effect appropriate modifications or cease transmitting.
One problem with the complaints resolution policy and process contained in documents EMCAB-2 and CPC-2-0-03-3-14-01, is that AM, FM and televison broadcasting transmitters are exempted85 from them. This is problematic because the interference protection criteria contained within Industry Canada's Broadcasting Procedures and Rules are not nearly so protective of private residences.86 It is important that the swamping and immunity criteria set for broadcasting undertakings strike an appropriate balance between the service objectives of the broadcaster and the interests of those who will live nearest to the transmitters. Following his case study of the transmission facilities located on Triangle Mountain, BC, Professor Dobell reached the same conclusion.87 It is submitted that if land-use authorities and citizens were assured of a base level of interference protection when broadcasting transmitters are sited near private residences this knowledge would greatly facilitate local consultations during the licensing process.
Recommendation 14: That Industry Canada should implement maximum field strength criteria for the resolution of immunity complaints involving the fundamental emissions from broadcasting undertakings. While it may not be appropriate to extend the application of the field strength criteria of EMCAB-2 to broadcasters, a similar approach is warranted.
O. Preliminary Environmental Assessments
As explained in Section C of this report, under the terms of the Canadian Environmental Assessment Act (CEAA),88 and the Law List Regulations89 enacted pursuant to CEAA, an environmental assessment will be required for the establishment or modification of a radio antenna or supporting structure only if a site-specific or antenna-specific licence is required by Industry Canada under section 5(1)(f) of the Radiocommunication Act.
In point of fact, since the mid 1990s Industry Canada has been moving away from the use of site-specific licences as a form of radio authorization. In order to dramatically reduce the number of individual licensing transactions, Industry Canada has been experimenting with system licensing and spectrum licensing. For spectrum licensing, an applicant is awarded spectrum user rights to specific frequencies within a defined geographical area. The approval of individual base stations is not involved.
Spectrum licensing has recently become Industry Canada's licensing policy of choice. Examples of radio systems authorized recently through spectrum licensing would include Fixed Wireless Access (FWA) systems for rural areas that operate in the frequency range 3400-3550 MHz;90 Point-to-Point and Point-to-Multipoint Wireless Systems that operate in the 38 GHz and 39 GHz bands;91 and Fixed Wireless Access (FWA) stations operating in the 2300 MHz bands and Wireless Communications Services (WCS) stations operating in the 3500 MHz bands the licences for which were auctioned off by Industry Canada in February of 2004.92
Also, and perhaps most importantly, on April 1, 2004 the analogue cellular licences from the 1980s and the PCS (digital cellular) licences from the 1990s were converted into the same type of spectrum licence that was awarded to the successful bidders in the PCS spectrum auctions held in 2001.93 The result of this regulatory action by Industry Canada is that all forms of cellular operator in Canada now hold a (converged) 'Cellular/PCS Spectrum Licence.' Therefore, any new antenna installations or modifications to existing cellular/PCS antenna systems will not be subject to any environmental review unless they are co-sited or co-modified with another type of radio apparatus that requires a site-specific licence, such as terrestrial microwave facilities.94 If Industry Canada is relying upon the co-siting of radio apparatus that does require a site-specific licence for its oversight of the environmental impact of Cellular/PCS antenna installations, that would be a rather haphazard exercise of its environmental responsibilities.
Other forces are afoot that are increasing the number of fixed antenna systems that escape environmental review. For example, over the past five years or so, the electronics industries have developed many types of consumer and commercial digital wireless apparatus that operate within licence-exempt frequency bands, such as those at 2.4 GHz, 5.8 GHz and 24 GHz.95
Being licence-exempt does not mean that this apparatus is unregulated. Radio regulators have set rules, standards and specifications for the apparatus to control for interference from and between these wireless devices.96 Technical and operational rules have been adjusted to accommodate such equipment in order to stimulate the development of new wireless networks and services. The Canadian government has created a 'connectedness' agenda that relies, in part, upon the deployment of such apparatus as a relatively inexpensive and expeditious means of making access to the Internet available to more of our citizens. These policies have further stimulated the deployment of licence-exempt networks.
Some of the wireless networks and fixed transmission links being created using licence-exempt radio apparatus involve antenna towers and other supporting structures that are quite sizeable. In those situations it is possible for the surrounding environment to be negatively impacted. Under current radio regulatory and environmental policies no preliminary environmental review would be required. Another policy approach must be found.
Under the terms of the Radiocommunication Act, the Minister of Industry has broad powers to "fix the terms and conditions" of any licence, including a Spectrum Licence. Section 5(1) of the Act states that the minister may issue licences "taking into account all matters that the minister considers relevant for ensuring the orderly establishment or modification of radio stations..." These powers may permit the minister to require that applicants for spectrum licences perform preliminary and secondary environmental assessments as conditions of their respective licences. Consequently, the department would not need to rely solely upon the legislative scheme provided by the Canadian Environmental Assessment Act.
Likewise, the Governor-in-Council has broad authority under section 6(1)(m) of the Radiocommunication Act to exempt radio apparatus from licensing requirements and to prescribe qualifications for such exemptions. This power may support regulations that require environmental assessments for the operation of licence-exempt equipment in circumstances where the environment may be at risk.
Recommendation 15: That Industry Canada should ensure that the proponents of all significant antennas and antenna supporting structures be required to perform a preliminary environmental assessment of their respective antenna installation. This assessment should be required even if the radio system is licence-exempt.
P. Towers and Bird Collisions
Birds are a critical link in the ecosystem.97 More than 50 million birds around the world make migratory movements, and there is growing concern that broadcasting and telecommunications towers pose a threat to birds making migratory98 or daily movements.99 The amount of bird "towerkills" seems to be unknown, but the subject of much speculation.100 Although the data is not concrete, large scale deaths and cumulative effects from regularly occurring fatalities are significant concerns.101 Of the approximately 80 formal written submissions to the National Antenna Tower Policy Review, four concerned the effects of towers on birds.102
Canada has an international obligation under the Migratory Birds Convention103 to protect migratory birds and their nests. While the Convention does not specifically address broadcasting and telecommunications towers, in Article Two of the protocol between Canada and the United States, the countries agree to manage migratory birds, to protect the habitat necessary for the conservation of migratory birds, and to develop, share and use scientific information. This article may create an obligation on the Government of Canada to initiate studies regarding the effects of communications towers located in Canada on migratory bird populations, and implement measures to reduce the number of bird deaths.
Knowledge about successful measures to avoid avian collisions with towers is rather undeveloped. There is some speculation that adjustments to the colour or type of tower lighting, or to their design or structure will help to avoid collisions.104 More research on the relationship between bird collisions and lighting, tower height, terrain, and environmental distractions such as city and highway lighting is needed.105
Until more conclusive research is conducted, groups concerned with migratory bird populations suggest several things that tower proponents could implement to protect migratory bird populations. They recommend that during tower siting consultations advice from wildlife and nature groups be sought about local migratory flyways.106 They suggest that antenna sites and towers be shared by many users as a way of reducing the total number of towers. These groups urge that towers not be located in or near wetlands, in areas that have a high incidence of fog and low cloud ceilings or in the habitats of threatened or endangered species. They recommend that guy wires be kept to a minimum and that there be markers affixed to increase their visibility107 Independent inspection of towers is also recommended, to monitor towerkills and to identify and resolve any remaining problems.108 Finally, a national antenna siting protocol is advocated, which aims to decrease the threats that towers pose to birds.109
Groups concerned about the migratory bird population also express concern that the Canadian Environmental Assessment Act excludes many towers from the requirement of undertaking an environmental assessment. Perhaps the Act may be used to support an obligation to consider bird kills when an assessment is undertaken.
According to section 2 of the Canadian Environmental Assessment Act:
"environmental assessment" means, in respect of a project, an assessment of the environmental effects of the project that is conducted in accordance with this Act and the regulations;
"environmental effect" means, in respect of a project, (a) any change that the project may cause in the environment, including any change it may cause to a listed wildlife species, its critical habitat or the residences of individuals of that species, as those terms are defined in subsection 2(1) the Species at Risk Act,
"environment" means the components of the Earth and includes...living organisms...
It is important to note that the definition of "environmental effect" means ... " any change that the project may cause in the environment..." (emphasis added).
It is reasonable to conclude from these definitions that the 'environmental effects' to be addressed within the Canadian Environmental Assessment Act would include avian mortality due to collisions with radio antenna towers or their guy wires that are erected in the migratory flight paths of the birds. If that is true, preliminary environmental assessments performed by applicants for Type 1 radio stations should address this concern when completing Part B of the attestation form that is annexed to CPC-2-0-03-2-0-03. In this regard, it is of particular interest to note that the 1992 version of this attestation form specifically referenced migratory birds. Question 4 of this attestation asked the antenna proponent whether "The station will interfere with migratory patterns, e.g. birds, caribou, etc."110
Should Industry Canada accept and implement Recommendations 15, then any antenna proponent (Type 1 or Type 2) seeking approval for a significant antenna structure should be required to consider the impact upon migratory birds.
Recommendation 16: That when CPC-2-0-03-2-0-03 is next revised those required to fill out the attestation should be asked to consider the detrimental impact that an antenna structure or associated guy wires may have upon the flight of migratory birds. Industry Canada and Environment Canada should collaborate to perform an up-to-date literature review on the issue of bird collisions with antenna facilities so that the extent of this problem and possible remedial options may be better understood.