THE MUNICIPAL REGULATION OF ANTENNAE,
SATELLITE DISHES AND
TRANSMISSION TOWERS IN CANADA

Quinto M. Annibale

NIMLO 1992 ANNUAL CONFERENCE, EDMONTON, ALBERTA
SEPTEMBER 13 - 16, 1992

Public attitudes concerning the appearance and safety of radio antennae and their supporting structures has changed over the years. Historically, the siting of broadcast antennae has received little or no objection from the community in which such structures were being located. However, as a result of a growing concern for health and safety issues and the environment in general and perhaps because such structures have proliferated within society, ratepayers and local governments are becoming more and more aware of the impacts these structures are having on their daily lives.

There are somewhere in the order of a quarter of a million licensed antennae in Canada today.¹ Local involvement in the siting of antennae and transmission towers varies greatly from jurisdiction to jurisdiction in Canada. The primary reason for this is that jurisdictionally, municipalities have little control over where antennae or their supporting structures can be located. As a result, municipalities do what they can to cope with these jurisdictional limitations. The federal government's response, on the surface at least, has been one of concern, yet until recently they have been reluctant to give municipalities any power to determine where these structures can be located. This has been a cause of considerable concern to municipalities in the past, especially when they are advised by Department of Communications' staff that federal review of applications for such licenses is limited to matters of a technical nature only (i.e. will it send?, will it receive?). They do not consider matters which are important to municipalities (eg. is it unsightly?, does it stick out like a sore thumb?, will it fall through a neighbour's roof in a wind storm?, will it attract aliens to earth?).

As indicated later in the paper, the Department of Communications has recently taken steps to improve the position of municipalities vis a vis spectrum management. This paper will examine the extent of municipal authority over antennae, satellite dishes and transmission towers (radiocommunications), how the municipal role is evolving, how little success municipalities have had in regulating them, and finally, some suggestions will be made as to different approaches which municipalities may take in an attempt to cope with the jurisdictional limitations.

The constitutional division of powers in Canada is set out in the Constitution Act, 1867. Specifically, sections 91 and 92 of the Act stipulate which powers are exclusively within the legislative competence of the federal government and which are within the competence of the provincial government. Provinces in Canada do not have provincial constitutions as do the American States. All of their powers are derived from the federal constitution.² Municipalities are creatures of provincial statute, and therefore their powers, even at their highest, can be no greater than those of a provincial government in any particular field.

The Canadian federal jurisdiction over radio broadcasting (broadly defined as "electromagnetic wages of various frequencies which are transmitted in space"³) originates from both section 91 and 92 of the Constitution Act.

Radio broadcasting has long been confirmed to be within the jurisdictional competence of the federal parliament. The preamble to section 91 of the Constitution Act, 1867 (commonly referred to as "the Peace Order and Good Government Clause"), as well as the power of the federal parliament over interprovincial undertakings 92(10)(a)) were held in 1932 to confer power on the federal parliament over radiocommunication (the Radio Reference case⁴). Because the regulation of radio broadcasting is essentially the regulation of the use of frequencies within the spectrum and, by inference, the prevention of unauthorized use of frequencies within that spectrum, the federal parliament's power has been interpreted to extend over not only interprovincial broadcasting, but over intraprovincial broadcasting as well.⁵

For municipalities, the real question therefore is not whether they can control radio broadcasting (it is clear that they cannot), but rather, to what extent is the federal power exclusive? For example, in the area of radio broadcasting, the Supreme Court of Canada has held that provinces may enact legislation dealing with the content of radio and television programs if the "pith and substance" of the legislation is within the provincial government's area of jurisdiction, notwithstanding that such legislation has an incidental effect on the programming of radio or television.⁶

Notwithstanding this distinction, the courts have been very reluctant to give municipalities very much power at all when it comes to the issue of the siting of antennae or transmission towers within municipal boundaries. As we will see, the courts have fairly consistently held that attempts by municipalities to control such structures under their land use powers⁷ have more than an "incidental effect" on the area of radio broadcasting. The result has been that municipalities have little or no control over the siting of transmission towers or antennae. However, this paper will examine the extent to which the law still permits such regulation and as well, will review the federal government's most recent attempts to incorporate municipal concerns into the licensing process.

As mentioned above, the constitutional authority for federal jurisdiction over radiocommunications is sections 91 and 92(10)(a) of the Constitution Act, 1867. The federal parliament has "occupied the field" of radiocommunications primarily by enacting two pieces of legislation, namely: the Radiocommunications Act⁸ and the Broadcasting Act.⁹

The Radiocommunications Act regulates both broadcasting and non-broadcasting facilities (and thus the antennae and supporting structures which accompany them). It provides for the issuance of licenses and certificates for the construction of the facilities¹⁰ and an approval mechanism which, when considered together, results in the regulation of the "construction, location, site approval, type approval, erection, repair and operation of radio antennae and the location, painting, lighting and engineering of antennae support structures in Canada".¹¹

Section 92 of the Constitution Act delineates the extent of provincial power and therefore potential municipal powers. Of relevance to radio antennae are sections 92(13) regarding "Property and Civil Rights in the Province", and section 92(16) regarding "Matters of a Local or Private Nature". It is section 92(13), for example, which permits local municipalities, where authorized by provincial statute, to enact land use regulations (zoning by-laws).

Although there have not been a large number of cases dealing with the issue of municipal regulation of antennae, transmission towers, their supporting structures and satellite dishes, the cases which have been decided are notoriously restrictive for municipalities in their result. For example, in Grimsby v. Rogers Radio Broadcasting Limited,¹² although the Supreme Court of Ontario found that a Town of Grimsby by-law was a zoning by-law of general application not directed specifically at the regulation of radio broadcasting, it nonetheless held the by-law to be ineffective (as opposed to invalid or ultra vires) to prevent the landowner from erecting transmission towers in the Town of Grimsby. In the Grimsby case, the court considered the dicta of the court in Township of Moore v. Hamilton¹³ and distinguished it on the basis of the type of license which had been issued in each case.

In Moore, the defendant had been issued a permit for the erection of a dock in the St. Clair River under the Navigable Waters Protection Act. The municipality's zoning by-law (again a by-law found by the court to be one dealing with land use control and not relating to navigation and shipping (federal areas)) prevented the use of the defendant's property as a dock. The municipality brought an action for an injunction claiming that the license issued under the Navigable Waters Protection Act did not operate to control the use of lands to which the license relates. The court held that because the zoning by-law related to land use control and did not purport to regulate matters relating to navigation and shipping, the by-law could stand.

The court in Grimsby however distinguished the facts by stating that the license in Grimsby did in fact relate to the use of the lands: i.e. the facilities licensed were to be used for broadcasting. The court observed that the license in Moore was a license to build a dock whereas in Grimsby it was in fact a license to operate a federal undertaking.

The Grimsby decision is unfortunate for municipalities because in other areas, the courts have recognized a limited jurisdictional role for land use by-laws. In the Hamilton Harbours case¹⁴ for example, the court held that municipalities do have a limited role to play when it comes to the regulation of harbours. In Hamilton, the court held that federally regulated harbours could be made subject to land use control by-laws if no harbour use was being made of the lands in question. If however the harbour commission chose to develop the lands for a legitimate harbour purpose at a later time, the doctrine of paramountcy would suspend the operation of the zoning by-law.

Although distinguishable on its facts, the principle enunciated in the Hamilton case (that land use can play a limited role in areas of federal competence) is helpful to municipalities. It is a principle that has also been applied to the municipal regulation of cable TV systems (CATV). Although courts have held that the federal power over radiocommunication extends to the regulation of cable TV as well,¹⁵ some courts have opened the door a tiny crack to permit some municipal role in this area.

The regulation of cable TV installations differs somewhat from the regulation of radio antennae in that the former almost always involves the location of works within the municipal right-of-way. This may explain why courts have taken a slightly less stringent role with respect to the extent of the municipal jurisdiction, however the comparison is useful for the purposes of argument by analogy.

Most provincial enabling statutes give to municipal corporations the authority to regulate the use of roads under their jurisdiction. Similarly, most allow municipalities to regulate the installation of works and services within the road allowance. In a series of cases commencing with Re Public Utilities Commission and Victoria Cablevision Inc.¹⁶ and ending with Re Coaxial Colourview and the Borough of Scarborough,¹⁷ the courts have held that the federal power over communications extends to cable installations and that municipalities may not prevent coaxial companies from installing systems within municipal roads. However, the courts have also held that municipalities may regulate to a limited extent the installations of such companies. The test established by these cases has been suggested as follows:

It has also been suggested that the following requirements would meet that test:

By analogy, there may be a role for municipalities to play in the regulation of antennae, transmission towers and satellite dishes. The original justification given by the Supreme Court of Canada in the Radio Reference case was that exclusive federal jurisdiction is necessary to ensure the proper management of radio frequencies and to avoid any interference therewith. If that is the case, then notwithstanding the Grimsby case, municipalities may be able to regulate, to some extent, the physical structures upon which such antennas are mounted.

Without further judicial pronouncement on each aspect of the regulation of the physical apparatus upon which antennae are erected, it would be very difficult to determine with any certainty how a court would rule. It is clear from the cases that land use control over the siting (i.e. choice of location) of the towers will not be permitted. But beyond that, outcomes will depend on the application of the general rule outlined above. Given these very serious restrictions, it may be useful to examine how the rules have been applied by the federal government in practice.

Our experience when dealing with the federal government on behalf of municipalities, has been that municipal or local concerns are often overlooked and sometimes ignored when licenses are issued. In the past, there was no requirement that license applicants obtain municipal approvals before a license would be issued. In fact, applicants were not even required to consult with municipalities on these issues. The unwritten policy of the Department of Communications for the 10 year period between 1980 and 1990 had been that applicants were encouraged to consult with municipalities and, where difficulties arose, to attempt to reach a compromise with respect to the location of the tower and any other concerns. Very often however, this was not done or, alternatively, when it was done a consensus could not be reached and therefore the license would be issued in any event. Attempts to have the federal government become more involved in the process usually involved a reply from the government which typically resembles the letter attached as Appendix "B".

In 1987, the Canadian Radio-television and Telecommunications Commission (the "CRTC") issued an interesting decision which dealt with the issue of local concerns. The case involved an application by a company to locate a broadcast facility in Lincoln, Ontario (a mainly rural community) consisting of 8 - 91 metre (300 feet) transmission towers which were to be located on prime agricultural land in the municipality. The decision (attached as Appendix "C") is significant because the Committee, for the first time, gave serious consideration to local concerns. In approving the license the Commission added a condition which required that the applicant satisfy the zoning and land use requirements of the municipality. The Commission stated:

The Commission required that the applicant file evidence that it had satisfied the municipality's land use requirements and stated that, in future and as a matter of policy:

The CRTC decision represented a significant shift, in the thinking of the Commission at least, to ensuring that local concerns were addressed in the licensing process. The Mayor of the Town of Lincoln participated in the process and one hopes that such intervention was not the only reason for the Commission's sensitivity to the municipal concerns. Subsequent federal action seems to suggest not.

Although the decision was encouraging in that it appeared to address local concerns, municipalities cannot place too much reliance upon it, as it requires only that "reasonable efforts" be made to meet local requirements. Of course, the final arbiter of what constitutes "reasonable efforts" will be the federal government. As well, proper policing of the requirement in practice may require municipalities to take a more active role in CRTC hearings or at least in the license application process. The fact that in the five year period following Decision 87-376 press reports of disgruntled ratepayers and angry municipal councils objecting to the siting of antennae continued to appear, seems to suggest that the Commission's policy has not had a great effect in addressing local concerns.

The Radio Act was amended and renamed the Radiocommunications Act in 1989.²³ Section 5 of that Act now states that the Minister of Communications may take into account "all matters relevant to radiocommunication authorization". As a result of a 1989 ruling by the Federal Court, all federal government departments and agencies must conduct environmental assessments of all their activities. As a result, a procedure has been developed by the Department of Communications in consultation with the Federal Environmental Assessment Review Office (FEARO) whereby the DOC will ensure that the environmental effects of all authorizations given under the Act have been considered before an authorization will be given. This new procedure may provide much needed relief to municipalities because incorporated within it is a process to ensure that municipal or land use authority concerns have been considered. As part of the licensing process, the DOC will ensure that an applicant has consulted with the local municipality or land use authority regarding antennae structures. Although not perfect, the procedure does go some way to ensuring that local concerns are taken into account.

The procedure requires all applicants for a radio station license to consult with municipal or other land use authorities to give them an opportunity to comment on a proposed antennae structure and site. This is done by requiring all applicants for land or coast station radio licenses to complete and submit a signed "Antenna and Antenna Structure Attestation" (see Appendix "D") which essentially requires consultation with the local municipality (with an exception).

This attestation is not required for those classes of stations for which the Department does not authorize specific installations (i.e. amateur and license exempt systems including General Radio Service (GRS) Systems, private receiving stations, TVRO dishes and other similar types of radio systems).

Although the attestation is not required for the latter type of operations, the procedure states that the Department "encourages" the operators of such stations to consult with municipalities, failing which the DOC may require the structure to be removed or altered. (This is with respect to radio stations which require the installation or modification of an antenna-supporting structure or tower which may lead to local objections over location or land use.

In cases where the DOC does issue a license and the attestation form is required, the procedure provides that if a municipality objects, the authority to operate the system will be withheld for a reasonable period to give the municipality and the applicant an opportunity to reach an agreement. The ultimate decision of course will be made by the DOC.²⁴

After reviewing the case law respecting the jurisdiction of municipalities to regulate in the area of communications, one might be tempted to ask: is there any role for municipalities to play in the siting of antennae, satellite dishes and transmission towers? Certainly there is a consultative role to be played in commenting on license applications as they are made. Depending on how strongly a community feels about the structures proposed, there is now a somewhat formalized process of which municipalities can take advantage. Beyond that, the opportunities are somewhat more limited. In no particular order, what follows are some suggestions which have been made for municipalities that are experiencing concerns in this area:²⁵

The Canadian experience differs greatly from the American one. In the United States the FCC does not select locations for radio antennae and the FCC will in fact deny permits if the siting will not comply with municipal or state zoning laws. At the federal level there appears to be a much greater deference to local concerns.

At the municipal level, opportunities for control appear to be much greater in the U.S. as well. Ordinances dealing with antennae differ little from ordinances regulating other land uses and this approach seems to be constitutionally valid. In addition, it would appear that building permits can be required for the construction of the facility. In fact, in certain cases even outright prohibitions may be permissible. The federal government is given the overriding power to pre-empt the ordinance. This local control does not seem to impair the management of radiocommunication facilities in the U.S.

The Canadian experience, as we have seen, is quite different. As a first principle, jurisdiction is vested exclusively in the federal parliament. The overriding constitutional principle is that municipal regulation may be permitted if in pith and substance the subject matter is within an area of provincial competence. If so, then the power can be exercised if and only if its effect on communications is only "incidental" and does not detrimentally affect the area of communications. These are restrictive tests indeed especially if one considers the original constitutional rationale for excluding provincial or municipal control: (i.e. exclusive federal jurisdiction is necessary to protect interference with radio frequency both within and between provinces).

There is a compelling rationale for not allowing municipalities to prohibit the location of radio antennae in Canada, but beyond that, the rationale weakens, especially when one considers that historically the federal government has not concerned itself with issues of aesthetics, compatibility, safety of such structures (beyond ensuring that technically they function and that the spectrum as a whole functions). Municipalities do however have a very legitimate role to play with respect to these issues. Hopefully recent federal initiatives and several recent court decisions will give municipalities some hope or at least will allow them to play out that role.

FOOTNOTES

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