Wireless operators say antenna tower policy should remain largely the same

Wireless carriers say giving local governments control over antenna tower siting will hurt their bottom line, and are pushing hard to leave the final say in Ottawa’s hands. The Canadian Wireless Telecommunications Association (CWTA) has weighed in to the ongoing tower review process with a heady constitutional argument that says municipalities have no jurisdiction to enforce development rules against towers since only the federal government can regulate tele-communications facilities. Key recommendations from wireless industryIndustry Canada should remain sole authority on antenna structures Clarification of "significant" structure Adherence to timelines should be stringently enforced Industry Canada should be more proactive in educative role Tower sharing should be encouraged where it makes sense Health Code Safety 6 concerns should not be a factor in tower approval Key recommendations from FCMIndustry Canada should not infringe on municipal jurisdiction Encourage tower sharing and make antennas blend in with surroundings Update policies with respect to intensity of RF and EM fields Unilateral decisions by Industry Canada are unacceptable, even unconstitutional Wireless carriers should work with municipalities on tower site plan Backed by members Telus Mobility and Rogers Wireless Inc., the wireless lobby has submitted to the review that the courts have already ruled in their favour, and that local governments’ tools such as zoning and development approvals processes take second chair to federal regulation. It cites the 1981 case of Grimsby (Town) v. Rogers Radio Broadcasting Ltd. to show that regulation of communications facilities is outside of the jurisdiction of land- use authorities.It notes: "As a result, municipal land use planning controls such as zoning by-laws, development approvals and building code requirements are rendered inoperative to the extent that they affect the siting, physical location, design, construction and operation of the federal undertaking. In other words, the prohibition, restriction or regulation of land for its use as a wireless telecommunications facility, would be ultra vires the authority of the land use authority." Referring to other provincial cases, the CWTA continues that antenna proponents aren’t legally required to follow local land-use protocols. "Consequently, there is no legal basis to require the proponents of antennas support structures to comply with local land use regimes. Rather, in the spirit of cooperation, antenna proponents consult with local land use authorities to ensure that potential land use impacts are fully considered prior to the development of a tower." The CWTA contends that if there were devolution of authority over antenna tower structures to municipal governments, the approvals process could slow down dramatically and damage the economic viability of its members. "Consequently, the CWTA is strongly of the view that Industry Canada and the minister must retain final authority over the development and siting of radio antennas and their support structures," the wireless lobby concludes. The Federation of Canadian Municipalities (FCM), however, doesn’t agree with the wireless industry’s assessment. It says Industry Canada’s current policy is "outdated and takes no account of local variations in policy and familiarity with the process." It is urging the department not to infringe on municipal governments’ jurisdiction to enforce zoning bylaws and other requirements on antenna towers. The FCM recognizes Parliament’s exclusive jurisdiction over communications and broadcasting activities of carriers and broadcasting undertakings, but says that shouldn’t exclude cellcos and others from being subject to provincial and municipal legislation."Under the Canadian constitution, the legislature of a province has exclusive jurisdiction over land development and zoning in the province, and also has jurisdiction over matters dealing with the health and welfare of local citizens," writes the FCM, while noting the hand-off of land-use authority to the municipalities over the years. The municipal lobby, citing its own list of court decisions, argues that recent legal decisions have reinforced the importance of municipal governments in Canadian society. The FCM highlights Justice L’Heureux-Dubé’s 2001 114957 Canada ltée (Spraytech, Société d’arrosage) v. Hudson case decision in which she wrote, "… law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and this most responsive to their needs, to local distinctiveness, and to population diversity." The FCM also takes issue with the authority the Industry minister can exercise in approving tower matters as set out in section 5(1)(f) of the Radiocommunication Act. It notes that the minister has the power to approve technical aspects of antenna towers and the service provided to Canadians, but that power doesn’t supercede other land-use regulation set out in federally enacted legislation. "Accordingly, while only the minister may exercise that approval power so as to regulate the service and operational characteristics of the equipment situated on antenna towers, including the structural integrity of towers, decisions concerning which portions of lands within municipal boundaries should be zoned for antenna towers, the terms on which construction permits will be issued for tower construction in permitted locations, and site plan requirements are all matters to be determined by municipal governments. It is only if and when municipal regulation can only result in interference with the ability of a telecommunications carrier or broadcasting undertaking to provide its service to the public or in the degradation of the operational characteristics of the equipment situated on towers than the minister would have the right, as a matter of constitutional law, to overrule a municipal decision," writes the FCM. More department participation Rogers Wireless and Telus Mobility believe that the department could, however, do a better job of educating municipalities, land-use authorities and the public on the processes and standards as they relate to antenna towers. "In Rogers’ view, it would be preferable and constructive if Industry Canada devoted greater effort and resources to an educative role outside the consultation process that would assist municipalities and land-use authorities in understanding both the jurisdictional authority for radiocommunications and their legitimate roles in the antenna tower siting process," writes Rogers. Telus echoes the refrain, writing, "Telus believes that more effort must be spent on educating land use authorities and the public concerning the scope of consultations and the applicable Industry Canada processes and standards. Telus believes there is room for the department to more effectively communicate these processes and standards to the general public." Hardy Stevenson and Associates Ltd., a consulting firm specializing in land-use and environment assessment and public consultation, notes that much of the contention that arises between municipalities and wireless carriers comes from a system that hasn’t set out guidelines on consultations. "Changes to Industry Canada’s approval process are required to better accommodate the need for meaningful public consultation. Where the public is concerned, the current approval process is weighted toward fostering conflict between residents, local land use authorities (typically local municipalities) and cellular carriers."Within the public consultation process, the relationship between residents, carriers and local municipalities must be balanced so as to make each a responsible partner in the process of finding appropriate local cellular tower sites. Industry Canada can achieve this balance by amending their approval requirements," writes Hardy Stevenson in its submission.

Wireless operators say antenna tower policy should remain largely the same

News | October 21, 2003

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