Canadian Municipalities and the Regulation of Radio Antennae and their Support Structures

This study was performed pursuant to Research Contract 36100-7-0027 between the Department of Communications for Canada and the University of New Brunswick (U.N.B.).

Principal Investigator was Professor David Townsend of the U.N.B. Faculty of Law.

Preface

Radio antennae and their supporting structures are the most visible features of the physical manifestations of a vast network of mass-media, commercial and private radiocommunications systems which integrally affect the economic, social, political and cultural development of this country. Since the first two external antennae in Canada were approved in 1901, their number has steadily grown until there are approximately 230,000 licensed antennae in Canada today. Most antennae, whether licensed or licence-exempt, are sited (location, height, antenna system and tower type) with the fullest regard to the technical issues which affect their ability to radiate and/or receive radio signals. Traditionally, accorded rather low regard is the extent to which the antenna may negatively impact upon the community near which, or within which, it may be located. Despite the potential for negative health, safety and aesthetic impact, most antennae are sited with little or no objection from any quarter. Indeed, the history of the siting of broadcasting antennae in Canada is very much a study of local pressure for more, larger and more powerful facilities.

Recently, attitudes about the appearance and safety of the local environment have begun to change. Residents and municipal governments have started to demand that local interests be considered within authorization processes when facilities which can negatively impact upon them may be located in their midst. Local and area land-use planning has evolved to a highly developed state. Today, almost all buildings, structures and facilities which are to be located within municipal boundaries are planned in advance and integrated into the community so as to minimize any undesirable impact.

Constitutional authority over certain buildings, structures and facilities is vested exclusively with the federal or provincial governments. When these are to be sited within a municipal district, a formal or informal consultative mechanism is usually in place so that local opinions and interests will play a significant role within the authorization process, either as relevant or controlling factors for consideration.

Currently, when radio antennae are located and erected in this country, no consultation occurs and municipalities, with increasing frequency, are requesting that the federal government clarify the extent to which local by-laws may regulate radio antennae and their support structures. In March of 1987, the federal Department of Communications commissioned this study to provide the historical, technical, political and legal background material necessary to provide an answer to this question. Objectives set for the project required that it culminate with detailed guidelines which would be of assistance to municipalities desirous of drafting by-laws which relate to the siting and operation of radio antennae.

The study was performed during May and June of 1987. Over that period, a number of cities were visited and over 30 persons, representing federal, provincial, municipal and industry interests, were interviewed. Research was performed at the Faculty of Law of the University of New Brunswick and at the Department of Communications headquarters in Ottawa.

I am grateful to Mary Hatherly, Professor of Constitutional Law at the University of New Brunswick, who performed consultant services under the contract and drafted the section on the constitutional division of powers regarding radiocommunication. Her work was assisted by David Cameron and Angela Crandall, both students-at-law at the University of New Brunswick. Linda Hansen, of the University Archives section of the Harriet Irving Library at U.N.B., researched 85 years of radiocommunication history using parliamentary and archival sources.

As Principal Investigator, I accept full responsibility for omissions or inaccuracies.

Professor David Townsend
Faculty of Law
University of New Brunswick
July, 1987

Acknowledgements

I am grateful to the many individuals who made themselves and their expertise available throughout this study. I am especially thankful to the following government and industry people who were consulted, in person or by telephone, about the political, policy, technical and legal issues raised within this study. In alphabetical order these people were:

Jack Anderson, District Manager, Victoria, B.C., Department of Communications, Canada; Anne Bastedo, Legislative Draftsperson, Community Planning Division, Nova Scotia Department of Municipal Affairs; Pierre Beckmans, Senior Planner, Ontario Association of Municipal Affairs; Robert Benson, Q.C. Counsel, Canadian Radio Relay League; Ronald Begley, Director General, Broadcasting Regulation, Department of Communications, Canada; Norman Blumenthal, Member, FCC Review Board, Federal Communications Commission, Washington, D.C.; Ralph Cameron, Instruments and Communications Group, Tektronics Canada Inc.; Michael Caine, President, Central Canada Broadcasters' Association; Dr. Robert Cleveland, Office of Engineering and Technology, Federal Communications Commission, Washington, D.C.; William Cochrane, Municipal Clerk, District of Oak Bay, B.C.; John (Harry) Eldson, Director of Building and Planning, District of Oak Bay, B.C.; A.G. (Sandy) Day, Engineering Consultant, Ottawa; Maucice DuPont, Private Radio Bureau, Federal Communications Commission, Washington, D.C.; Fred Finn, Legal Counsel, Satellite Television Industry Association (Space), Washington, D.C.; Martha Fletcher, Manager, Broadcasting Office, Ontario Ministry of Transportation and Communications; Richard Gensiorek, Supervisor, Mobile Services, Central Region, Department of Communications, Canada; Rosealee Gorman, Policy Analyst, Satellite Radio Branch, Federal Communications Commission, Washington, D.C.; Terry Haines, General Attorney's Advisor, Policy and Rules, Federal Communications Commission, Washington, D.C.; Milton Harmelink, Director, Broadcasting and Cable, Ontario Ministry of Transportation and Communications; R.J. (Bob) Harrison, President, Nowell Communications, Winnipeg, Manitoba; Donald Marshall, Director of Engineering, LeBlanc & Royle Communications, Inc.; John Howard, Manager, Engineering, Pacific Region, Department of Communications, Canada; Christopher Imlay, General Counsel, American Radio Relay League; David Lyon, Director General, Ontario Region, Department of Communications, Canada; John McKendry, Assistant Secretary, Radio Frequency Management Division, Department of Communications, Australia (on exchange with DOC, Canada); Christopher Nation, Municipal Solicitor, District of Saanich, British Columbia; Eileen Overend, Legislative Draftsperson, Aeronautical Legislation and Regulations, Transport Canada; Kevin Patterson, Regional Manager, Authorization, Central Region, Department of Communications, Canada; John Quigley, Director General, Pacific Region, Department of Communications, Canada; Linda Rankin, V.P. Telecommunication Services, Telesat Canada; Joseph Robertson, Professor, Faculty of Law, University of New Brunswick; Wayne Stacey, Consulting Engineer, Canadian Association of Broadcasters; Merle Styles, Manager, Spectrum Control, Pacific Region, Department of Communications, Canada; Richard Taylor, Executive Director, Union of B.C. Municipalities; Bruce Tonner, Technical Officer, Operations Development, Canadian Broadcasting Corporation; Kenneth Vance, Policy Analyst, Union of B.C. Municipalities.

Table of Contents


Canadian Municipalities and the Regulation of Radio Antennae and their Support Structures
(PDF, 380 KB, 79 pages) – PDF Readers


I. General Introduction

Radiocommunication, by its very nature and definition, involves the creation, transmission and reception of radio frequency energy which travels through space from one radio apparatus to another without artificial guides such as wires or cables.1 While the frequency, power, type, size, shape, height and support structure of the particular radio antenna involved may vary a great deal, an antenna is required at both the point of transmission and reception of the radio energy. For over 55 years it has been a settled matter of Canadian constitutional law that the technical regulation of the properties and characteristics of both the transmitting and receiving devices, antennae included, is exclusively within the legislative authority of the federal government.

Almost invariably, municipal governments in Canada possess authority, delegated from their respective provincial government, to regulate the health, safety and aesthetics of buildings and other structures within the confines of their physical boundaries. Such land use regulation is achieved through the use of plans, by-laws and other rules which are legally enforceable upon those who wish to develop private property within the municipality. Legally speaking, municipalities possess only such power as is expressly delegated to them and provincial governments may only delegate powers with which they are lawfully vested.

The siting, construction and operation of radio antennae can, in some cases, cause substantial health, safety, economic, environmental and aesthetic concerns for those who live and work in close proximity to them. Some of these concerns are specifically addressed through existing federal regulation, but many are not. Historically, in relation to radiocommunications, the federal government through its various agents (currently the Department of Communications), has been concerned primarily with ensuring that all authorized radiocommunication systems operate effectively and efficiently within the technical limits imposed by the radio frequency spectrum.

For some time, and with increasing frequency, municipalities, their provincial and national associations and some provincial government departments have complained that, on occasion, the siting and operation of certain radio antennae have resulted in substantial impact at the local level which the federal regulatory process has not taken, or adequately taken, into account2. They haveresponded by asking the Department of Communications to explain the legal limits of its jurisdiction over radiocommunications so that they may determine if the Canadian constitution has reserved to provincial governments, authority which could be delegated to local governments to minimize or eliminate the undesirable impact caused by the siting and operation of particular radio antennae.

For over a decade, the Department of Communications has responded to requests for clarification on their constitutional authority by citing from a legal opinion rendered by the Federal Department of Justice on this issue in the mid 1970's. It is stated in part:

"Since radiocommunications is a field exclusively within the legislative competence of the federal government, then a province or municipality does not have jurisdiction to enact legislation or pass by-laws respectively which relate directly to radiocommunications. However, a properly framed municipal by-law dealing with local zoning and relating only incidentally to radiocommunications may co-exist with federal legislation provided the by-law neither prohibits nor unduly restricts the conduct of radio services or the operation of federally licensed radio stations." (emphasis added)

Accepting for the moment that this legal principle correctly states the current law, the problem with it is that it is too general to be of practical use to those who must draft constitutionally valid municipal by-laws. One cannot differentiate between direct or incidental relation or impact unless the federal interest surrounding the siting and operation of radiocommunications is explained in some detail. Such explanation has not been forthcoming because the extent and nature of federal interest in radiocommunications is tied to the effective and efficient use of the radio frequency spectrum and that may vary with the technical, legal and political issues which surround particular uses and even particular users of the spectrum.3 Therefore, if municipalities are to regulate incidentally to radiocommunications, they must be provided with general principles and explanatory material which incorporate these technical, legal and political issues as well as detailed information about the operational requirements of the particular categories of antennae and support structures which municipalities are interested in controlling for their local impact.

It is the purpose of this study to undertake this task. To achieve it, the paper is divided into the following components: General Introduction, Introduction to Radio Antennae and their Support Structures, Analysis of Constitutional Jurisdiction in Relation to Radiocommunication, Regulation of Radio Antennae and their Support Structures in the U.S.A., Guidance for Municipal By-Laws, and Conclusion.

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