Rogers Communications 333 Bloor Street East Toronto, Ontario M4W 1G9 Dawn Hunt Vice President Regulatory Phone: 416-935-7211 Fax: 416-935-7719 dawn.hunt@rci.rogers.com March 28, 2014 Sent via email: spectrum.operations@ic.gc.ca Director, Spectrum Management Operations Industry Canada 235 Queen Street Ottawa ON K1A 0H5 Re: Canada Gazette, Part I, February 27, 2014, Consultation on Amendments to Industry Canada s Antenna Tower Siting Procedures (DGSO-001-14) Pursuant to the procedures outlined in the above noted document, attached are Comments of Rogers Communications Partnership ( Rogers ). The document is being sent in Adobe Acrobat Professional Version 10. Operating System: Microsoft Windows XP. Regards, Dawn Hunt DH/gf Attach. WIRELESS CABLE TV INTERNET HOME PHONE RETAIL PUBLISHING BROADCASTING
Comments of Rogers Communications Partnership Consultation on Amendments to Industry Canada s Antenna Tower Siting Procedures Canada Gazette, Part I, February 27, 2014 DGSO-001-014 March 28, 2014
Rogers Communications Partnership Page 1 Executive Summary Rogers generally supports the Department s proposed changes to Industry Canada s antenna tower siting procedures known as CPC-2-0-03: Radiocommunication and Broadcasting Antenna Systems (the CPC ). We believe that the majority of these changes provide clarification to both land-use authorities ( LUAs ) and proponents, and harmonize much of the CPC with the FCM/CWTA joint protocol template (the FCM/CWTA Protocol ). For reasons outlined in greater detail below, Rogers recommends that the Department incorporate the following modifications to its proposed changes: The three-year time limit for LUA concurrence should commence at the time construction of an antenna system has started as opposed to the time it has been completed. It should be made explicit that an LUA always has the option of excluding certain antenna systems from all or part of its consultation process. In order to minimize delays for sites subject to the Canadian Environmental Assessment Act, proponents should be required to only notify Industry Canada as opposed to a full application and review. Alternatively, Industry Canada s review of such proposals should be capped at 30 days. Introduction In 2008, Industry Canada introduced its tower and antenna siting policy to establish the processes for new antenna systems and tower sites. The CPC sets out a default consultation process, general and technical requirements, as well as a dispute resolution mechanism. It also excludes certain types of antenna installations from the requirement to undertake municipal and public consultation. In DGSO-001-14: Consultation on Amendments to Industry Canada s Antenna and Tower Site Sharing Procedures (the Consultation Paper ), the Department has proposed revisions to the CPC to clarify certain aspects of the processes, and to bring the CPC in alignment with the FCM/CWTA Protocol. Perhaps the most significant change is the requirement that broadcast undertakings and telecommunications carriers must now undertake consultation for installations less than 15 metres in height. These sites are currently exempt from consultation under the CPC. Rogers has had considerable success in integrating sites into existing infrastructure through the use of street lamps and utility poles. For example, modified streetlights with antennas have been well-received in neighbourhoods in the City of Toronto. These installations are unobtrusive and fit well into residential neighbourhoods. We believe that these types of low impact sites will become more and more important as Canadians continue to use their wireless devices close to home, and additional sites are required to be located within residential areas.
Rogers Communications Partnership Page 2 While we understand the concerns of LUAs regarding sub-15 metre sites, we would nonetheless hope that they would encourage these smaller and unobtrusive sites as a welcome alternative to the big towers that can generate numerous complaints of unsightliness and obscuring views. Indeed, as noted in paragraph 24 of the Consultation Paper, the CPC provides LUAs the latitude to exclude certain antenna systems from all or part of their consultation process. We would hope that LUAs will exercise their discretion when it comes to these kinds of sites. Further details regarding our positions are provided in the following comments. 5.1 Antenna Siting Procedures Proposed Update to Section 1.2 of CPC-2-0-03 The requirements of this document apply to anyone (referred to in this document as the proponent) who is planning to install or modify an antenna system, regardless of the type. This includes telecommunications carriers, businesses, governments, Crown agencies and the public. Anyone who proposes, uses or owns an antenna system must follow these procedures. The requirements also apply to those who install towers or antenna systems on behalf of others or for leasing purposes ( third party tower owners ). As well, parts of this process contain obligations that apply to existing antenna system owners. The Department has proposed to update the list of entities that must comply with the CPC. References to PCS and cellular will be replaced by telecommunications carrier. In addition, third party tower owners are now explicitly included. These changes are consistent with updates made to the tower sharing and roaming regime and Rogers supports them. 5.2 Industry Canada s Default Public Consultation Process Proposed Update to Section 4.2 of CPC-2-0-03 Public Notification 1. Proponents must ensure that the local public, the land-use authority and Industry Canada are notified of the proposed antenna system. As a minimum, proponents must provide a notification package (see Appendix 2) to the local public (including nearby residences, community gathering areas, public institutions, schools, etc.), neighbouring land-use authorities, businesses, and property owners, etc. located within a radius of three times the tower height, measured from the tower base or the outside perimeter of the supporting structure, whichever is greater. For the purpose of this requirement, the outside perimeter begins at the furthest point of the supporting mechanism, be it the outermost guy line, building edge, face of the self-supporting tower, etc. Public notification of an upcoming consultation must be clearly marked, making
Rogers Communications Partnership Page 3 reference to the proposed antenna system, so that it is not misinterpreted as junk mail. The notice must be sent by regular mail or be hand delivered. The face of the envelope must clearly indicate that the recipient is within the prescribed notification radius of the proposed antenna system. 2. It is the proponent s responsibility to ensure that the notification provides at least 30 days for written public comment. 3. In addition to the minimum notification distance noted above, in areas of seasonal residence, the proponent, in consultation with the land-use authority, is responsible for determining the best manner to notify such residents to ensure their engagement. 4. In addition to the public notification requirements noted above, proponents of antenna systems that are proposed to be 30 metres or more in height must place a notice in a local community newspaper circulating in the proposed area. Height is measured from the lowest ground level at the base, including foundation, to the tallest point of the antenna system. Any attempt to artificially reduce the height (addition of soil, aggregate, etc.) is unacceptable. The Department has proposed new language related to the notice that is to be sent to local residents regarding a proposed site. This section also provides clarification on how tower height is measured. The proposed notice requirements are consistent with those found in the FCM/CWTA Protocol. They are also consistent with Rogers current practice. Accordingly, Rogers supports the proposed language as it will act to reduce instances where a local resident may inadvertently ignore notices of proposed sites. With regards to the proposed language on height measurements, Rogers notes that this clarification was originally made in Industry Canada s Frequently Asked Questions on Antenna towers in October 2011. Accordingly, Rogers supports the proposed language. 5.3 Post-Consultation Construction Time Limit Proposed New Section 4.4 to be added to CPC-2-0-03 Whether the proponent followed a land-use authority s process or Industry Canada s default public consultation process, construction of an antenna system must be completed within three years of conclusion of consultation. After three years, previous consultations will no longer be deemed to be valid. The Department has proposed to adopt language from the FCM/CWTA Protocol that limits the duration of LUA concurrence to a period of three years. After that time, a proponent would have to undertake a new consultation process.
Rogers Communications Partnership Page 4 The proposed language states that construction must be completed within the threeyear period. This differs from the FCM/CWTA Protocol which states that construction must be started within the three-year period. Rogers supports a requirement that limits the duration of concurrence as a means of reducing friction between local residents and proponents when sites are erected several years after public consultation, particularly when residents moving into new neighbourhoods are unaware that a tower has been approved for their area. However, we are of the view that the proposed language is too restrictive and should adopt the position set out in the FCM/CWTA Protocol. Local resident interest and concerns are most often expressed during the consultation phase, as well as at the time construction starts. A particularly controversial site that has attracted significant opposition could end up being delayed indefinitely after construction has commenced, even though consultation was completed and concurrence provided. If such a dispute dragged on beyond three years, a proponent would be required to re-submit an application and re-consult on its partially-built site. In order to avoid this situation, we recommend that the proposed language be made consistent with that of the FCM/CWTA Protocol. Rogers proposes the following changes (new language in bold): Whether the proponent followed a land-use authority s process or Industry Canada s default public consultation process, construction of an antenna system must commence within three years of conclusion of consultation. After three years, previous consultations will no longer be deemed to be valid. 5.4 Exclusions Proposed Update to Section 6 of CPC-2-0-03 All proponents must consult the land-use authority and the public unless a proposal is specifically excluded. Individual circumstances vary with each antenna system installation and modification, and the exclusion criteria below should be applied in consideration of local circumstances. Consequently, it may be prudent for the proponent to consult even though the proposal meets an exclusion noted below. Therefore, when applying the criteria for exclusion, proponents should consider such things as: the antenna system's physical dimensions, including the antenna, mast, and tower, compared to the local surroundings; the location of the proposed antenna system on the property and its proximity to neighbouring residents;
Rogers Communications Partnership Page 5 the likelihood of an area being a community-sensitive location; and Transport Canada s marking and lighting requirements for the proposed structure. The following proposals are excluded from land-use authority and public consultation requirements, but must still satisfy the General Requirements outlined in Section 7: New Antenna Systems: where the height is less than 15 metres above ground level. This exclusion does not apply to antenna systems to be used by broadcasting undertakings or telecommunications carriers; Existing Towers: modifications may be made, or the tower may be replaced, to facilitate sharing or the addition of antennas, provided that the total height increase is no greater than 25% of the height of the initial antenna system installation. No increase in height may occur within one year of completion of the initial construction; Non-Tower Structures: antennas on buildings, water towers, lamp posts, etc. may be installed provided that the height of the structure is not increased by more than 25%; and Temporary Antenna Systems: used for special events or emergency operations and must be removed three months after the start of the emergency or special event. No consultation is required prior to performing maintenance on an existing antenna system. Proponents who are not certain if their proposals are excluded, or whether consultation may still be prudent, are advised to contact the land-use authority and/or Industry Canada for guidance. Height is measured from the lowest ground level at the base, including foundation, to the tallest point of the antenna system. Any attempt to artificially reduce the height (addition of soil, aggregate, etc.) will not be taken into account in the measurement. The Department has proposed several changes to the exclusions from consultation requirements, including clarifications to rules regarding existing towers and new antenna sites. With regards to existing towers, the Department has proposed that no consultation will be required to perform maintenance on existing antenna systems. Also, modifications to existing towers will be permitted provided that the total height increase is not greater than 25% of the original structure. The proposed language also clarifies how tower heights should be measured, and provides that no height increase may occur within one year of completion of construction. Rogers supports these proposed changes.
Rogers Communications Partnership Page 6 With regards to new antenna systems, the Department has proposed that the sub-15 metre consultation exclusion will no longer apply to broadcasting undertakings and telecommunications carriers. This is a significant change as it will result in more consultation. Rogers is aware that the exemption for sub-15 metre sites has been an irritant to LUAs and local residents. As noted in the Consultation Paper, these types of smaller sites have been popular as a result of the dramatic increase in demand for wireless services that requires sites closer to where people live, work and play. The Department correctly notes that LUAs will feel an increased administrative burden when proponents are required to consult on all proposed towers, as many more towers will now require consultation. The Consultation Paper also affirms that LUAs have the latitude to build upon the exemptions established in Industry Canada s policy and exclude certain antenna systems from all or part of the consultation process. Smaller sites such as street lamp or hydro pole replacements that blend into existing infrastructure have a much lower visual impact and should therefore be encouraged. LUAs can tailor their siting protocols to make this distinction and actively encourage these types of sites. This is an important point to highlight and Rogers proposes that the Department s language in the rationale be added to Section 6 (new language in bold): The requirement to consult may be an administrative burden on land-use authorities as proponents are required to consult on all towers. In order to alleviate this burden, land-use authorities can exclude certain antenna systems from all, or part of their consultation process or have different public consultation processes tailored to different types of structures. Section 5.5 Canadian Environmental Assessment Act, 2012 5.5 Canadian Environmental Assessment Act, 2012 Proposed Update to Section 7.4 of CPC-2-0-03 Industry Canada requires that the installation and modification of antenna systems be done in a manner that complies with appropriate environmental legislation. This includes the Canadian Environmental Assessment Act, CEAA 2012, where the antenna system is incidental to a physical activity or project designated under CEAA 2012, or is located on federal lands. An antenna system may not proceed where it is incidental to a designated project (as described in the Regulations Designating Physical Activities), or is otherwise expressly designated by the Minister of the Environment without satisfying certain requirements applicable to designated projects. Therefore, a proponent of
Rogers Communications Partnership Page 7 this type of project must contact Industry Canada for direction on how to proceed. Any proposed antenna system on federal land may not proceed without a determination of environmental effects by Industry Canada. In order to assist the Department in making such a determination, proponents must submit a project description to Industry Canada, considering and addressing those elements of the environment described in CEAA 2012, as well as any determination of environmental effects that may have been made by the authority responsible for managing the federal land. Industry Canada may also require further information before it can complete its assessment. Industry Canada will inform the proponent of the results of its determination and may impose conditions related to mitigating any adverse effects after making its determination and/or may need to refer the matter to the Governor-in-Council under CEAA 2012. Also, notices under Industry Canada s default public consultation process require written confirmation of the project s status under CEAA 2012 (e.g., whether it is incidental to a designated project or, if not, whether it is on federal lands). In addition to CEAA requirements, proponents are responsible to ensure that antenna systems are installed and operated in a manner that respects the local environment and that complies with other statutory requirements, such as those under the Canadian Environmental Protection Act, 1999, the Migratory Birds Convention Act, 1994, and the Species at Risk Act, as applicable. For projects north of the 60th parallel, environmental assessment requirements may arise from federal statutes other than the aforementioned Acts or from Comprehensive Land Claim Agreements. Industry Canada requires that installation or modification of antennas or antenna-supporting structures be done in accordance with these requirements, as appropriate. The Department has proposed to update the processes to take place under the revised Canadian Environmental Assessment Act, 2012 (the CEAA ). The CEAA s requirements apply to proposed sites that are located on federal land or are part of a project that is already subject to environmental assessment. For the most part, Rogers supports the proposed language but seeks clarification on the issue noted below. Under the proposed changes, wireless sites on federal land may not proceed without a determination of the environmental effects by Industry Canada. Proponents are required to submit information on the proposed site and await the outcome of Industry Canada s determination before proceeding. Currently, Rogers works with the relevant
Rogers Communications Partnership Page 8 federal government department for sites on federal land to obtain the necessary approvals. The vast majority of proposed sites have very little environmental impact and are eligible to be excluded from assessment under the previous version of the CEAA. Rogers is concerned that the additional review and approval process by Industry Canada will potentially delay these projects. Therefore, Rogers proposes that proponents (who will be already working with the relevant federal government agency) be required to only notify Industry Canada of the proposed site on federal land instead of submitting a full application and awaiting Industry Canada s review and decision. This would reduce timelines for proponents and decrease the administrative burden on Industry Canada. In those instances where Industry Canada believes that further review is required, a full application may be requested. Rogers proposes the following changes to Section 7.4 (new language in bold): (...) Industry Canada must be informed of any proposed antenna system on federal land. In order to assist the Department, proponents must provide notification of the proposed site with a brief project description to Industry Canada, considering and addressing those elements of the environment described in CEAA 2012, as well as any determination of environmental effects that may have been made by the authority responsible for managing the federal land. (...) As an alternative, language can be added to Section 7.4 setting out a firm deadline by which Industry Canada must provide its determination. In the interests of expediency, we propose a 30-day time period through the addition of the following language to paragraph 3: Any proposed antenna system on federal land may not proceed without a determination of environmental effects by Industry Canada. In order to assist the Department in making such a determination, proponents must submit a project description to Industry Canada, considering and addressing those elements of the environment described in CEAA 2012, as well as any determination of environmental effects that may have been made by the authority responsible for managing the federal land. Industry Canada may also require further information before it can complete its assessment. Industry Canada will inform the proponent of the results of its determination within 30 days of project description submission and may impose conditions related to mitigating any adverse effects
Rogers Communications Partnership Page 9 after making its determination and/or may need to refer the matter to the Governor-in-Council under CEAA 2012. ***End of Document***