Report On the National Antenna Tower Policy Review (sf08348)

Section D — The Six Policy Questions

Question 1(b). What are the most appropriate time frames for the processes of approving and resolving debates surrounding specific tower placements?

From the perspective of all of the parties involved in the processes of approving and resolving debates surrounding specific tower placements, the setting and enforcement of time frames are very important matters. The policy framework for the consultations and negotiations that need to take place must strike the right blend of structure, certainty and flexibility. An unstructured or uncertain process can result in protracted debates about proposed antenna installations that will be frustrating and resource intensive for antenna proponents, land-use authorities, concerned members of the public and Industry Canada. Additionally, many commercial antenna proponents face significant competitive and financial pressures to establish, expand and enhance their networks just a quickly as possible.^{Footnote 111} Obviously, an overly-structured consultation process with rigidly applied time frames will not be able to adjust to the sensitivities, high or low, presented by a particular antenna placement.

A. Current Time Frames

As described in Section C of this report, the policy elements that frame the land-use consultation process applicable to any particular category of radio station may be found in different sources. These sources include the conditions of licence for that category of radio station, the specific policy documents applicable to the station and the general policy and procedure document entitled Environmental Process, Radiofrequency Fields and Land-Use Consultation (CPC-2-0-03).^{Footnote 112} It should also be noted that certain licence-exempt radio equipment is subject to conditions and specifications that include an obligation to follow one of the land-use consultation processes described in CPC-2-0-03 (for Type 2 stations).

Policy document CPC-2-0-03 describes two basic land-use consultation models. Each is subject to modification through licence conditions and other policies. The first model is a structured consultation process that involves stages, time frames, an attestation form that must be filed with Industry Canada and a dispute resolution protocol. This structured model applies to all radio stations that require a site-specific approval by Industry Canada before construction on an antenna system can proceed. As explained previously, radio stations requiring a site-specific licence are called "Type 1" stations in the policy circular. These include all broadcasting undertakings that require a licence under the Broadcasting Act and all other categories of stations that require a traditional radio licence (historically these have been site-specific). All broadcasting undertakings must consult with the relevant land-use authority in every case. The remaining Type 1 stations must consult only if their antenna proposal is assessed to be a 'significant structure.' The consultation process for each of the various categories of broadcasting undertakings have been supplemented by adding more particular notice and disclosure requirements (regarding the particulars of the licence application). These modifications have been affixed as licence conditions to the respective broadcasting certificates.

The second land-use consultation model described in CPC-2-0-03 is very flexible. The circular does not describe any stages, time frames or dispute resolution protocol for this model, and no form is filed with the department.^{Footnote 113} These are "Type 2" radio stations and either they are licence-exempt or they require a type of licence that is not site-specific. The flexible model can be, and often is, modified by licence conditions and other policies. For example, all of the categories of radio station now covered by "Spectrum Licences" fit into the Type 2 designation, but Industry Canada has supplemented the basic land-use consultation process applicable to particular categories of spectrum licence. These modifications have been implemented by affixing them as licensing terms and conditions. More detail about some of the actual modifications for certain Type 2 radio stations covered by spectrum licensing will be provided below.

This subsection of the antenna report asks for policy recommendations about appropriate time frames for antenna approval and dispute resolution surrounding a particular antenna (tower) placement. Interestingly, within Industry Canada's licensing and policy documents that address land-use consultation issues, only CPC-2-0-03 provides consultation and dispute resolution time frames and those are only applicable to consultations for Type 1 stations. For Type 1 radio stations Industry Canada has provided two consecutive 60-day periods for completion of the necessary consultations, negotiations and dispute resolution activities. CPC-2-0-03 states:

It would appear that the first 60 day time frame is intended to permit the land-use authority to review, consult and seek clarifications about the antenna proposal, and the second 60 day period (up to 120 days in all) is accorded for a negotiation and resolution stage. In the event that the land-use authority and the Type 1 antenna proponent need more time to negotiate a satisfactory resolution, or in circumstances where negotiations have broken down but Industry Canada is hopeful that more time may lead to a resolution, the CPC provides for ad hoc extensions of time as follows:

Within the CPC itself Industry Canada has recognized that it has no authority over provincial or local land-use regulators.^{Footnote 115} These consultation processes are merely made available to them to provide an opportunity to influence the placement and visual impact of antenna facilities. If the antenna proponent is a broadcaster, or if the proponent wishes to establish or modify a significant antenna structure of another Type 1 station, a final approval from Industry Canada is a necessity through the issuance of the particular station licence.

Should the antenna proponent of a non-broadcasting Type 1 station inform Industry Canada that it has decided that land-use consultations are not required because the proposed structure is insignificant, the department will continue to process the application unless it receives objections from the relevant land-use authority. Should the land-use authority decline the consultation opportunity, neglect to make its views known to the antenna proponent or make unreasonable (or unconstitutional) demands for accommodations with respect to the proposed installation, Industry Canada may, of course, issue the certificate or licence.

If Industry Canada concludes that the land-use authority and the antenna proponent have reached an impasse in their consultations, and a mutually acceptable resolution is not possible, the antenna proponent is permitted to file a written submission (petition) to the department requesting that the licence be issued. The submission must describe all of the efforts made by the proponent to accommodate the concerns raised by the land-use authority and include: "a chronological summary of all events (letters, meetings, consultations, etc.); the requirement for the establishment of the specific site in question; reasons for the proposed location; and a review of alternative locations considered and reasons for their rejection, including costs and technical analysis."^{Footnote 116} At this point, Industry Canada can attempt to resolve the matter(s) in dispute, deny the licence, issue the licence on the terms and conditions set out in the original application or grant the licence with modifications intended to provide a balanced resolution for the parties. No time frames are provided in CPC-2-0-03 for this impasse (dispute resolution) stage.

As described within the policy circular, the proponents of 'significant' Type 2 antenna installations are expected to consult with the appropriate land-use authority and address community concerns in a responsible manner.^{Footnote 117} As noted above, there are no particular process or time frames specified for these consultations but, in the end, if Industry Canada should conclude that a completed antenna installation or modification is not appropriate for its surroundings the owner may be required to provide submissions explaining why the structure should not be altered or removed.^{Footnote 118}

For the past eight years Industry Canada has been experimenting with a licensing option called "Spectrum Licensing." By its very definition, pursuant to section 2 of the Radiocommunication Act, a spectrum licence does not involve a site-specific radio authorization. Thus, to the extent that fixed radio stations (with antenna systems) are deployed under a particular category of spectrum licence, they are Type 2 radio stations and subject to the flexible land-use consultation model.

For some of the categories of spectrum licence this basic consultation model has been modified in ways that are relevant to Question 1(b) of the National Antenna Tower Policy Review. For example, as of April 1, 2004 a (converged) spectrum licensing regime has been applied to all Cellular/PCS service providers in Canada. According to the conditions of licence for this category of radio authorization the licensees must engage in "meaningful consultation" with " all local municipalities or land-use authorities" regarding the installation of each radio station "with the aim of developing consensus solutions." These phrases do not appear in CPC-2-0-03 in relation to the basic land-use consultation models for Type 2 or Type 1 radio stations. More particularly to the issue of the need for an appropriate time frame for antenna approvals and resolving disputes about particular antenna placements is the following licence condition:

This licence condition appears to provide a very flexible dispute resolution process that involves a role for Industry Canada as the final decision-maker. While this modification to the basic consultation model for Type 2 radio stations is a welcome addition, its lack of a time frame for resolving impasse situations has already proved to be a problem in few antenna-siting situations. The condition states that, in an impasse situation, the installation of an antenna system must be delayed for "a period of time sufficient for Departmental review..." In a few cases, antenna proponents have insisted that a "sufficient" period of time has already passed for the department to have completed its review (and have made a decision). Consequently the proponent has claimed that it should be able to commence construction immediately. Their view is that the word sufficient should be judged on an objective standard that takes into account the significant pressures that Cellular/PCS service providers are under to build-out their networks. One must remember that there is no site-specific authorization to withhold in this type of situation and that the little bit of policy detailing land-use consultations for Type 2 radio stations contained in CPC-2-0-03 would not assist the department at all.

The licence condition discussed immediately above has also been added to the spectrum licences that apply to the Fixed Wireless Access (FWA) stations operating in the 2300 MHz bands and Wireless Communications Services (WCS) stations operating in the 3500 MHz bands that were auctioned off by Industry Canada in February of 2004.^{Footnote 119} The only policy change to this licence condition for these two new spectrum licences is that it applies only to "significant" antenna structures. (That term was not defined either.)

B. Opinions About the Appropriateness of Current Time Frames

Prior to offering recommendations related to the appropriateness of the current time frames within CPC-2-0-03 it is important to pay particular attention to the opinions offered by those closest to the process. This subsection of the final report will discuss many of the views submitted to the National Antenna Tower Policy Review about the existing time frames.^{Footnote 120}

Most of the larger commercial spectrum users (e.g. broadcasters and cellular/PCS service providers) offered support for the 60 + 60 day time frames listed in the CPC on condition that these time frames are more strictly enforced in the future.^{Footnote 121} In its submission, the Canadian Wireless Telecommunications Association (CWTA)^{Footnote 122} pointed out that, in the United Kingdom, the provisions of the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001^{Footnote 123} permit the antenna proposal to proceed automatically if the local planning authority has not responded to the application within 56 days of its receipt.^{Footnote 124} Other Canadian radiocommunication industry members reinforced the view the local consultation process should be terminated at the end of the first 60 day period if the land-use authority has not responded. Telus Communications suggested that, in the future, objections raised during a local consultation that do not fit within the terms of the CPC process not be used to determine whether concurrence had been achieved.^{Footnote 125}

Most of the submissions made on behalf of the cellular and PCS carriers accepted that Industry Canada should be permitted to issue ad hoc extensions of time for compelling reasons,^{Footnote 126} but they cautioned that "...delays impose unfair costs and business risks on broadcasters and carriers and ultimately deprive residence and business customers and users of a choice in services and providers that they request and deserve."^{Footnote 127} During a meeting held in Ottawa, one Cellular/PCS carrier complained that it had waited for over 500 days for Industry Canada to finally call an end to a local consultation stage that was not progressing.

Within its formal submission to this policy review the Canadian Association of Broadcasters (CAB) expressed frustration with the fact that the Broadcasting Procedures and Rules (BPR) require broadcasters to complete all local consultations before Industry Canada will undertake the technical evaluation of their antenna proposals.^{Footnote 128} The significance of this sequence is made all the more important by the fact that the Canadian Radio-television and Telecommunications Commission (CRTC) will not consider an application for a broadcasting licence under the Broadcasting Act, until the Minister of Industry has issued a broadcasting certificate under the Radiocommunication Act. The CAB urged that the sequence of requirements be reversed for broadcasters, with local consultation being the final requirement to satisfy. This, in the CAB's opinion, would reduce the regulatory burden for broadcasters, land-use authorities and Industry Canada; eliminate confidentiality concerns (applicants not wanting the details of their business proposals to reach their competitors), and reduce some of the pressures related to strict adherence to the time frames for local consultation. Alternatively, should the sequence of approvals for broadcasters remain unchanged, the CAB requested that the deadlines for land-use consultations be more strictly enforced.^{Footnote 129} The Federation of Canadian Municipalities drove home this point with the statement that:

According to many of the Amateur radio operators who made submissions to this policy review, the current CPC time frames (for Type 1 stations) may be suitable for the approval of commercial radio antenna installations, but they are not appropriate for the antenna systems of amateur radio operators. The alternative policy suggestions offered by amateurs ranged from exempting them from all local consultation requirements^{Footnote 131} to maintaining the flexible (Type 2) consultation model so long as time frames are added that adjust with the type of antenna system under consideration.^{Footnote 132} Within its formal written submission the Radio Amateurs of Canada (RAC) made a clear distinction between the appropriate policy treatment for commercial and amateur towers, and made several suggestions:

Another amateur suggested that a more structured consultation framework would make the approval process easier for all, and that amateur radio users would not be opposed to more structure provided the process would still allow them to erect a suitable antenna supporting structure.^{Footnote 134}

Municipalities and community groups across the country were divided in opinion on the time frames currently listed in CPC-2-0-03. Some expressed the belief that the existing time frames are appropriate and sufficient,^{Footnote 135} while others urged their amendment. Suggestions included commencing the 60 day time period only after the land-use authority has received from the proponent all of the information necessary for a public meeting (if a meeting is required);^{Footnote 136} having flexible time frames that vary based on the comments and level of opposition at the public meeting;^{Footnote 137} commencing the consultation at least 6 months prior to the date for the erection of the antenna installation;^{Footnote 138} and requiring proponents to complete and submit a detailed impact analysis which would be considered by all of the parties in stages.^{Footnote 139} The Federation of Canadian Municipalities (FCM) urged that any reforms to the process must respect the jurisdiction of municipal governments.^{Footnote 140}

On the issue of selecting appropriate time frames for consultations with land-use authorities one final point may be one of the most useful. During the data collection phase of this project municipalities and cellular/PCS carriers were encouraged to send in copies of the local consultation protocols they have negotiated with each other. Approximately 18 samples were forwarded. It is instructive to note that most of the protocols have used the same time frames as specified within CPC-2-0-03 for Type 1 radio stations (60 days + 60 days) for the consultation and dispute resolution stages.^{Footnote 141}

C. Recommendations about Appropriate Time Frames

The pubic consultation conducted for the National Antenna Tower Policy Review collected facts, opinions and policy suggestions from many sources and in a variety of ways. In relation to the time frames most appropriate for approving and resolving debates surrounding Type 1 antenna structures, the vast majority of participants supported the current time frames in CPC-2-0-03.^{Footnote 142}

Two additional points are relevant to the time frame question. Employing two consecutive 60 day periods appears to be in keeping with the time frames used in other developed countries and, when given the opportunity to negotiate a consultation model, most Canadian municipalities and cellular/PCS carriers chose this overall framework.

Recommendation 17: That the current time frames of two consecutive 60 day periods for land-use consultations applicable to the antenna installations of Type 1 radio stations should be maintained. The discretion accorded to Industry Canada to extend the time frames when such might lead to a negotiated resolution of an antenna dispute also should be maintained.

It is submitted that the appropriateness of these time frames for Type 1 radio stations can be assessed only after a number of other clarifications and modifications have been made to the contents of CPC-2-0-03 and after sufficient experience has been gained with an improved local consultation policy.

Policy Question 1(a) of the National Antenna Tower Policy Review asked about how the local consultation process can be improved. Sixteen recommendations for policy reform were offered in this report. Almost every one of those recommendations may influence the answer to Question 1(b) about appropriate time frames for approving particular antenna installations and resolving disputes. Likely, Recommendation 2, about including concerned members of the public into the consultation process, will have the greatest impact on time frame issues. Some of the other recommendations may have a time-saving influence. For example, Recommendation 9 urges Industry Canada to play a more active role in the local consultation process. Should that occur, departmental representatives would be well positioned to remove impediments to progress and otherwise expedite the consultation. Also, a departmental presence at public consultations could help to identify and clarify the issues about which the public is being consulted and officials from Industry Canada could provide objective answers to some of the questions posed by concerned members of the public.

One problem with making recommendations about implementing appropriate time frames into the current land-use consultation process for Type 1 and Type 2 radio stations is that few decision-making or dispute resolution stages are (currently) set out for Type 1 radio stations and no stages are provided for Type 2 stations. In the future the consultation process applicable to Type 1 and 2 radio stations should be divided into four stages: pre-application, initiation, consultation and impasse. The policies for the pre-application stage should clarify Industry Canada's expectations that commercial antenna proponents initiate a cooperative working relationship with the planning staff of local governments by identifying their short and longer term antenna siting requirements within the local jurisdiction. Long in advance of a particular antenna application, proponents and land-use authorities should work cooperatively to plan for the integration of commercial radiocommunication antenna installations into local communities. It is accepted that Industry Canada has no direct control on whether land-use authorities take advantage of this opportunity.

A clearly defined and declared initiation point is important if the time frames for local consultations are to be respected. Currently, when antenna proponents contact land-use authorities with antenna proposals, no policy action or event brings home to the land-use authority that this is 'day one' of a 120 day consultation process. It is significant that the press release announcing the appointment of the National Antenna Tower Policy Review Committee stated that the review would look into "improving the local consultation process regarding the siting of a specific tower to reduce the incidence of surprise, which can accompany the construction of new antenna towers."^{Footnote 143} Both citizens and local governments have been surprised in the past.^{Footnote 144}

Recommendation 18: That the land-use consultation processes applicable to Type 1 antenna installations require a more structured policy framework. The process should be divided into distinct stages such as: pre-application, initiation, consultation and impasse.

Recommendation 3 of this report urges Industry Canada to re-examine the Type 1 and Type 2 radio station designations that were created in the mid-1990s. While it is sensible to have both a structured and a flexible land-use consultation model, the streaming criteria that direct any particular category of radio station into the structured or the flexible model must be based upon sound public policy objectives. If one reads the 1990 and 1992 versions of CPC-2-0-03, it is clear that the genesis of the Type 2 category of station that was enshrined in the 1995 edition of the Circular consisted mainly of small, private radio stations such as GRS [citizen band], TVRO satellite (dishes), and amateur radio stations. It was logical to assume that their potential land-use impact was modest and quite localized and, consequently, that a flexible approval process was appropriate.

As described elsewhere within this report, it was Industry Canada's experimentation with (deregulatory) licensing options, such as system licensing and spectrum licensing, that moved certain radio stations with substantial antenna facilities into the Type 2 classification. Clearly, radio stations with the potential to establish substantial antennas and supporting structures should not be processed under such an unstructured decision-making model. At the same time, there is still a policy requirement for a more flexible and expeditious land-use consultation model for antenna facilities that are likely to have modest and localized impact upon their surroundings, such as those of amateur radio operators.

In their formal written submissions, within their postings to the e-town hall discussion forum and when consulted in person or by telephone, amateur radio operators expressed concerns about suffering inordinate delays and/or expenses in securing approvals from land-use authorities for their antenna installations. On the other side, some municipalities complained that, during the local consultation process, certain amateurs behaved as if their immediate neighbours should not be permitted to offer any input in relation to the height, nature or number of the antenna facilities they install. A policy response is needed.

Recommendation 19: That Industry Canada should ensure that a flexible and expeditious land-use consultation model is available for the establishment and operation of radio stations (such as amateur stations) likely to have only a modest and localized impact upon their surroundings. This model should set out both the rights and obligations of antenna proponents seeking antenna approvals from land-use authorities.

Finally, it is beyond the scope of this policy review to offer recommendations in response to the request by the CBC that the sequence of approvals for broadcasting authorizations be reordered so that local consultation be one of the final stages. Local governments, in particular, should be consulted about this proposal before such a change is contemplated. One unfortunate result of this policy change may be that broadcasters would be approaching land-use authorities after all technical issues related their proposed antenna facilities have been approved by two federal regulators. Many of the antenna siting-related accommodations that local governments might seek from broadcasters have the potential to impact the technical specifications of the, now approved, antenna application.