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Decision
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Ottawa, 2 June 1987
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Decision CRTC 87-376
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Reconsideration of Decision CRTC 86-990 approving an application by Westcom Radio Group Ltd. to amend the licence for CFGM Richmond Hill, Ontario
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Westcom Radio Group Ltd. Richmond Hill, Ontario - 853159200Order in Council P.C. 1986-2690
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In late 1985 the Commission received an application by Westcom Radio Group Ltd. (Westcom) to amend the broadcasting licence for CFGM Richmond Hill by changing the frequency from 1320 kHz to 640 kHz and by changing the location of the station's transmitter from its site in Mississauga to a new site located approximately three kilometers north-east of Beamsville. This application was technically mutually exclusive with a competing application by CKMW Radio Ltd., which was also filed in late 1985, seeking to amend the broadcasting licence for CKMW Brampton by changing the frequency from 790 kHz to 640 kHz.
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In accordance with section 20 of the Broadcasting Act and the CRTC Rules of Procedure, on 21 April 1986 the Commission issued CRTC Notice of Public Hearing 1986-33 in which it provided notice of the nature of the applications, the procedures to be followed by persons wishing to intervene, and of the date and location of the public hearing at which it would consider the applications. This notice was published in the Canada Gazette, Part I on 26 April 1986 and, later, for each application, in a newspaper of general circulation within the area normally served by the broadcasting undertaking. Furthermore, as is required by the afore-mentioned Rules of Procedure, each of the applicants broadcast, over its own facilities, the date of the hearing, the nature of its application and the rights of all persons to intervene in the hearing.
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Following the public hearing held in the National Capital Region in June of 1986, the Commission approved the application by Westcom noting that, among the principal factors considered, was the fact that the Westcom proposal, which was predicated on a transmitter power of 50,000 watts, represented a better use of the 640 kHz frequency than would be possible under the proposal by CKMW Radio Ltd., which was based on a transmitter power of only 5,000 watts (Decision 86-990, dated 2 October 1986).
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On 27 November 1986, the Governor in Council referred back to the Commission for reconsideration and hearing Decision CRTC 86-990. Order in Council P.C. 1986-2690 reads, in part, as follows:
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Whereas subsequent to the rendering of Decision CRTC 86-990 the Governor in Council has received a petition requesting that the said Decision CRTC 86-990 be set aside;
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And Whereas the Governor in Council is of the opinion that in rendering its decision the Canadian Radio-television and Telecommunications Commission did not provide the opportunity for the people in the area affected by the placement of the transmission towers to make their views known;
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Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Communications, pursuant to section 23 of the Broadcasting Act, hereby refers Decision CRTC 86-990 of 2 October 1986 amending the broadcasting licence of Westcom Radio Group Limited back to the Canadian Radio-Television and Telecommunications Commission for reconsideration and hearing by the Commission.
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Pursuant to this Order in Council, on 22 December 1986, the Commission announced procedures for its reconsideration of the decision. In Notice of Public Hearing 1986-93 the Commission indicated that it would hold a public hearing in the Town of Lincoln, Ontario on 3 March 1987 to provide an opportunity for the people in the area affected by the placement of the transmitting antenna towers to make their views known and invited them to file written comments and make oral presentations at the hearing.
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The Commission received submissions from seventy-eight interested parties, thirty of whom stated their intention to appear at the public hearing.
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During the hearing, which was held at the Lincoln Community Centre on 3 and 4 March 1987, strong expressions of concern were voiced by a large number of members of the community and by representatives of the Town of Lincoln, which includes Beamsville (the Town). Almost all of the interveners from Lincoln noted that they were not aware of the proposed location of the CFGM transmission towers until after the release of Decision CRTC 86-990. In this regard, the Commission notes that notice of the application was published in the Richmond Hill newspaper, The Liberal, on 30 April 1986.
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The interveners also commented on a number of issues arising from the proposed CFGM transmitter site including potential technical interference problems, the potential loss of prime agricultural land, health and safety hazards associated with broadcasting transmitters, aesthetics, and property devaluation. Many of these concerns were also raised by the Provincial Member of Parliament for Lincoln, Mr. Philip Andrewes. Representatives from the Broadcasting and Cable Branch of the provincial Ministry of Transportation and Communications and from the Foodland Preservation Branch of the provincial Ministry of Agriculture and Food primarily addressed their comments to the issues of land use policies and notification procedures. Presentations were also made by representatives of the Association of Municipalities of Ontario, the Regional Municipality of Niagara and the Town of Niagara-on-the-Lake, as well as by the Preservation of Agricultural Lands Society and the Niagara North Federation of Agriculture.
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ISSUES
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The major issues raised by the interveners are addressed below.
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i) Local Concerns
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The majority of interventions made reference to the fact that the proposed CFGM transmitter site is located on specialty cropland, the Niagara Peninsula being one of only two areas in Canada which has climatic and soil conditions capable of sustaining tender fruit, as well as hybrid or vinifera grape cultivation. The interveners claimed that if the proposed transmitter site were approved by the Commission, some 80 acres of this prime agricultural land could no longer be utilized for the cultivation of specialty crops.
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Mr. Ray Konkle, Mayor of the Town of Lincoln, argued that CFGM serves Richmond Hill and the Toronto area and should be able to continue to do so adequately from its existing facilities in Mississauga. Mr. Konkle was particularly concerned that other Toronto-based radio stations might construct antenna towers in the area and that Lincoln would thus become "the repository for matters unpleasant for other communities". Another representative from the Town, Mr. Dennis Landry, submitted that while the Town's own by-laws do not themselves forbid the construction of transmitting towers on the proposed site, the Regional Plan of the Regional Municipality of Niagara, which takes precedence over municipal by-laws, does not allow towers on such protected agricultural land.
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Other local issues raised by residents of the Lincoln/Beamsville area included potential interference caused by the transmitter and affecting radio and television signals, telephones, computers and other household equipment, as well as heart pacemakers and hearing aids. Others commented on the aesthetic impact of the towers on the visual environment and the potential devaluation of nearby property. Some expressed concern that the very high intensity electro-magnetic energy in the areas surrounding the towers might cause the premature budding of crops and other problems, such as sparking and other health hazards, to neighbouring farm workers.
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In setting out its concerns to the Commission, the Town took the position that should the Commission approve the Westcom application, the Town would have no jurisdiction over the location of the transmitter, given the paramountcy of federal legislation on the subject of broadcasting when it conflicts with municipal regulations or by-laws on the subject of land use.
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In concluding, representatives of the Town of Lincoln therefore suggested that the Commission attach a condition to CFGM's licence so that approval of a new transmitter site would only take effect upon the licensee obtaining the approval of the municipal authority.
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ii) Notification Procedures
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Several interveners were concerned that existing public notice procedures relating to broadcasting applications do not ensure that all those who are affected by an application are adequately informed of the application in order that they may intervene at the appropriate time. In this instance, interveners remarked that the notices relating to CFGM's application were published in newspapers in and around Richmond Hill but not in those in general circulation in the Lincoln/Beamsville area. Moreover, the interveners stated that the licensee did not contact the Town about the proposed transmission tower site until the Governor in Council had referred Decision CRTC 86-990 back to the Commission.
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The Ontario Ministry of Transportation and Communications recommended that the Commission's Broadcasting Rules of Procedure be amended to ensure that notice is given to individuals in all the areas affected by an application and that applicants be required to give written notice of their applications to municipal governments in those locations where transmitting facilities are to be located.
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REPLY BY WESTCOM
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In replying to the interventions, Westcom said that it had taken the concerns expressed in the interventions very seriously and had consulted various experts to ensure that the proposed transmitter installation would not cause injury to people, livestock or property in the area.
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Westcom indicated its intention to maintain the agricultural use of the land, emphasizing that it had received approval from the federal Department of Communications (DOC) to bury the ground radials at a depth of eighteen to twenty-four inches to ensure that the land can be utilized for fruit and vegetable production. Westcom said it proposes to lease the land to local producers at reasonable rates and that it would increase the acreage of land used for agricultural purposes from 85.6% to 97%.
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Westcom also stated that it had investigated alternative sites for the location of the CFGM towers but that none was feasible or suitable to achieve the coverage sought by the licensee. It emphasized CFGM's long and significant involvement in the promotion of Canadian country music talent and stated that unless the station remains viable, it will not be able to continue to support Canadian artists.
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The applicant also indicated that, in its view, it was highly unlikely that other Toronto area AM radio broadcasters would relocate their transmitter sites to the Niagara Peninsula.
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With respect to potential interference problems, the applicant pointed out that the DOC has certified the proposed change of facilities as technically acceptable. Moreover, Westcom committed to resolve immediately any complaints received, as is required by the DOC, and noted that it had contacted pacemaker and hearing aid manufacturers who had assured them that these devices should not be affected by the high signal levels that would exist near the antenna towers.
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Westcom further argued that the eight towers required would not create any visual pollution as they would be located over a field of eighty acres of land and would be tall, slender and non-solid in appearance. It explained that, unlike most transmission towers which have blinking white strobe lights, these towers would have relatively dim red aviation lights which would also be shielded from ground view. It disputed the argument that nearby property would be devalued and cited evidence to the contrary from recent land sales in areas bordering the towers of CKEY and CFTR Toronto, which are also situated in the Niagara Peninsula.
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With respect to the concerns about potential problems due to electromagnetic energy, Westcom submitted a letter from a broadcast station engineer who, since 1972, has been residing with his family at the CKEN transmitter site at Kentville, Nova Scotia and confirmed that life there "is normal in every way". Westcom stated that, according to its experts, there would not be any health hazards to humans or animals and that there would be "absolutely no risk of premature budding".
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Westcom also submitted that the Commission's jurisdiction relates to broadcasting objectives and not to land use objectives and argued that the rights of its listeners are being seriously interfered with because of the lack of an adequate signal. With regard to the Official Plans of the Town and the Regional Municipality of Niagara, counsel for Westcom stated that:
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While those plans do refer to predominant use or preferred use of lands in this area being agricultural, there is nothing in them that specifically excludes transmitting towers.
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Westcom went on to argue that, even if there is a prohibition in the Official Plans against the erection of transmission towers, it would be ultra vires those authorities, in view of federal paramountcy. In conclusion, Westcom urged the Commission to approve the use of this site.
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THE DECISION
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The Commission thanks all parties, and in particular interveners from the area, who have contributed to the public process. The volume of interventions filed and the number of presentations made at the hearing by town representatives and local residents were particularly impressive. The Commission appreciates the efforts expended to ensure that it would be cognizant of all concerns when considering this application. The Commission notes that under the circumstances, it would appear to be the "court of last resort" for local residents to make known their concerns.
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As regards the health, safety and technical interference issues associated with residing in close proximity to transmission towers, the Commission notes that all broadcasting licensees, including Westcom, must obtain the approval of the DOC under the provisions of Radio Act. Approval of broadcasting transmission towers is subject to the licensee complying with a number of technical rules and guidelines under the Radio Act designed to protect the population living in close proximity to such towers and to ensure that any interference problems that may arise are remedied at the licensee's expense.
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With respect to that part of the Westcom application seeking to change the location of the station's transmitter site, the Commission has given careful consideration to the suggestion by representatives of the Town of Lincoln that the Commission attach a condition of licence requiring the approval of the municipal authority. The Commission notes that this suggestion could, in this case, avoid a conflict between a municipal zoning requirement and a federal licence issued pursuant to the Broadcasting Act, which would clearly be a desirable result. Under the Town's suggestion, the licensee would undoubtedly consult with the municipal authority with respect to the location of the broadcasting transmission towers with a view to taking into account land use and zoning concerns. The various levels of government have each enacted regulatory requirements within their own areas of expertise and competence. In the Commission's view, it is appropriate and desirable for a licensee under the Broadcasting Act to respect the regulatory requirements of municipal and regional governmental authorities, if feasible.
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Accordingly, after reconsidering Decision CRTC 86-990 and in light of the particular circumstances of this case, the Commission has decided to confirm the amendment of the broadcasting licence for CFGM Richmond Hill approved in the original decision, with certain changes. Specifically, the Commission confirms its approval of the change in frequency from 1320 KHz to 640 KHz. The Commission also confirms its approval of the change in the location of the station's transmitter site to a location near Beamsville. This amendment, however, will only take effect upon the licensee filing with the Commission evidence that it has satisfied the zoning and land use requirements of the municipal authority with respect to the use of that site. Approval of this amendment will lapse unless the new frequency is implemented within one year of the date of this decision, or such further period as the Commission may, upon receipt of a request for extension before the expiry of the said twelve months, deem appropriate under the circumstances.
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The Commission acknowledges the substantive and valid concerns expressed by local interveners and the provincial Ministry of Transportation and Communications with respect to notification procedures. These concerns will be taken into consideration in the current review of the Commission's Rules of Procedure which will be put forth for public comment in the near future. Moreover, the Commission expects that, as a matter of policy, applicants will have advised local authorities of their plans for siting of transmission towers and will have made every reasonable effort to meet local requirements. The Commission will expect these areas to be formally addressed when applications are submitted.
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Fernand Bélisle
Secretary General
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