Ottawa Constituencf;}:, . +.~" 607 Confederation Building SlIlt e 202, 5000 Bridge StreEtt HOllse of Coll1mons Delta, V4K 2~~ : Ottawa Ontario K1 A OA6 Tel: 604-940-8040 Fax: 604-940-8 0 tlll~~ : Tel: 61 3-992-2957 Fax: 613-992-3589 www . kerrylYIU1efindlaymp .Q ~J 1:' ••: 1

HOUSE OF COMMONS CHAMBRE DES COMMUNES CANADA .The Han. Kerry-Lynne D. Findlay, PC, QC Member of Parli ament Delta- Richmond East

Memorandu ON TAfit.E From: Hon. Kerry-Lynne D. Findlay, P.c., Q.c., MP

To: Mayor Lois E. Jackson & Delta Council

Date: Monday, June 23, 2014

Re : Progress Update on Proposed AM 1550 KRPI Radio Station for Point Roberts

In response to the proposed notice of motion at its meeting of June 9,2014, this memorandum serves to apprise Mayor Jackson and Delta Council of the progress I have achieved at the federal level in respect of KRPI's proposed relocation of their broadcasting site for the AM1550 rad io station from Ferndale, WA to Point Roberts, WA. As Council is undoubtedly aware, KRPI is an American company that owns the radio station and leases air time on AM1550 to BBC Broadcasting, Inc. of Richmond, B.C, It should be noted at the outset that I have met with both the proponents as well as the opponents and I continue to work to ensure that concerns of residents are addressed.

To move the tower array to Point Roberts, KRPI requires two permits: a relocation permit granted by the U.S. Federal Communications Commission (FCC) and a Conditional Use Permit related to land zoning granted by Whatcom County. In addition, KRPI's broadcast license for the radio station generally is currently up for renewal at this time, having expired on February 1st, 2014. KRPI's license renewal application is currently stalled at the FCC pending a ruling by the Commission on several objections filed by opponents to the towers' relocation.

In the map of Point Roberts supplied to the FCC by the proponent as part of the relocation permit application, the community of Tsawwassen was omitted, though a reference to Ladner as the closest neighboring community was made. Residents' of Tsawwassen have raised numerous concerns with me over the exclusion of Tsawwassen potentially having an effect on the FC C's deliberations and subsequent approval of the relocation permit. The chief concerns expressed to me by residents are the potential impacts of blanketing interference from the towers on the residents of Tsawwassen, and that Tsawwassen may have been deliberately omitted from the application by the proponent in an effort to secure a favourable decision from the FCC. In the application process, the project's proponents rece,ived a waiver from the FCC of

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[email protected] a requirement concerning population within specified blanketing contours, in apparent contradiction of the FCC's own regulations if the population numbers of Tsawwassen had been taken into account as the Commission claims.

Further questions have also been raised as to the applicability of the 1984 Agreement Between the Government of the United States of America and the Government of Canada Relating to the AM Broadcasting Service in the Medium Frequency Band, or Ottawa Agreement, and whether the FCC had a duty to consult with Industry Canada in their approval of the relocation permit in the context of blanketing interference and given the proximity to the Canada-United States border.

Since being made aware of the concerns over this issue a year ago, I have actively engaged officials at Industry Canada, the Department of Foreign Affairs and International Trade, as well as my Cabinet colleagues Han. James Moore, Minister of Industry, and Hon. John Baird, Minister of Foreign Affairs directly. I also wrote early-on (August 16, 2013) to Whatcom County officials urging them to take the concerns of Tsawwassen residents into account in their deliberations on the Conditional Use Permit. I should note that I am grateful of the level of attention and effort that my Cabinet colleagues and their respective staff continue to give on this file to ensure that constituent concerns are addressed. I have also directly contacted my American counterpart, Representative Suzan DelBene of the 1sl District, - responsible for Point Roberts - to explore what avenues can be undertaken jointly on behalf of our respective constituencies.

In my meeting with the project's proponents, they assured me that they are prepared to have engineers on call 24/7 to resolve interference issues, should they arise, on either side of the border relating to the proposed towers where complainants will grant access - a measure that is beyond current requirements - and at the proponents' own cost. The proponents have also made similar, public assurances in their submissions to Whatcom County and to the FCC.

At the core of this issue is that the Government of Canada ultimately has no jurisdiction over foreign agencies and their decision-making processes on matters within a sovereign country. With that in mind, Minister Baird kindly facilitated the visit of senior diplomatic officials from Canada's embassy in Washington DC and our Consulate in Seattle to visit Delta, meet with residents, and hear first-hand the concerns surrounding this proposal. Our diplomatic officials were able to convey those concerns directly in subsequent discussions with Whatcom County officials in Bellingham and they continue to dialogue with Whatcom County. Minister Moore has also taken the proactive step of raising Tsawwassen residents' concerns directly during a recent meeting with the new Ambassador of the United States to Canada, Mr. Bruce Heyman. I am currently arranging to speak with Ambassador Heyman directly.

Moreover, at my urging, a dialogue has been open and ongoing between Industry Canada officials and their FCC counterparts over this proposal. Industry Canada, on behalf of Tsawwasssen residents, has been able to secure valuable information to help address some of residents' concerns. Specifically, Industry Canada has been able to obtain and confirm the following to me through their discussions:

" That despite the map of Point Roberts that omitted the community of Tsawwassen, the FCC advised that they were aware of the community's presence and it was taken into account during their deliberations. Further, the FCC advised Industry Canada that a more complete map would not have had a bearing on their approval of the relocation permit. The FCC advised Industry 21 Canada that for them this is not a new issue - similar instances have been encountered along the United States/Mexico border where radio stations are set up on the margins of urban and semi-urban areas.

iii The FCC also advised Industry Canada that the approval of the relocation permit conforms to the Commission's regulatory requirements, such as those for health and safety, and those for mitigating the impact of the proposed AM station on the electronic devices of local residents.

iii The 1984 Ottawa Agreement addresses adjacent channel interference only, not blanketing interference, as blanketing interference is difficult to predict and its manifestation depends on the age and type of electronics being used and their proximity to the signal emitter as well as environmental variables. Industry Canada was consulted on the basis of adjacent channel interference; specifically concerning a radio station in Nanaimo, B.C., however it was determined that no adjacent channel interference issues would be encountered with that station.

iii Industry Canada advises that the Agreement does not provide the FCC or Industry Canada the opportunity to object to a proposed station on the basis of blanketing interference. In a subsequent review of this proposal, it was concluded by both sides that the proposal conforms to the requirements of the Agreement set out therein.

iii At the specific request of the No Radio Towers Coalition - Tsawwassen Chapter, Industry Canada held discussions with the FCC regarding section 73.24(g)1 of the regulations, which limits the population within the blanketing contour of an AM station. The FCC confirms that it normally provides a waiver as populated areas often encroach on the radio station after it is built. The FCC advised they do not have the land-use authority to maintain the population size within a radio station's blanketing contour within specified limits. Instead, and because population growth within a contour can be 2 expected to increase, the FCC, under its rules in section 73.318 , focuses on remedies for blanketing interference rather than attempting to prevent such interference entirely.

Based on the information obtained from the FCC and because of the autonomy with which the Commission operates in the United States, Industry Canada has advised that the best way forward to achieve the resolution favoured by concerned Tsawwassen residents is to fully engage in the ongoing Whatcom County process and to inform those discussions so that

147 CFR § 73.24 Broadcast facilities; showing required 247 CFR § 73.318 FM blanketing interference 31 concerns are taken into account in the deliberations on the Conditional Use Permit. Without the Conditional Use Permit, the towers cannot be built.

As previously mentioned, last month and with Minister Baird's assistance, I arranged for senior diplomatic officials Denis Stevens, Deputy Head of Mission from Canada's embassy to the United States in Washington DC and Kevin Cook, Senior Political, Economic, and Academic Officer from Canada's Consulate in Seattle, to visit Delta and meet directly with Tsawwassen residents to hear their concerns first-hand. Following our meeting, Mr. Stevens and Mr. Cook met personally with officials at Whatcom County responsible for this file, namely Ms. J. "Sam" Ryan, Director of Whatcom County Planning and Development Services, and Ms. Suzanne Bosman, Senior Planner, and the lead on this file, where they conveyed personally the concerns that were raised. County officials confirmed to the Government of Canada that:

$ The county has requested additional information from the project's proponents based on concerns that were raised by residents on both sides of the border during the public comment period. Such concerns relate to potential blanketing interference, public health, and environmental impacts. Whatcom County also confirmed that without this information, the application will expire on July 10th of this year and at such time the proponents would have to reapply for a Conditional Use Permit. To date, the requested information has not been received by Whatcom County.

Ii> Though the official public comment period has expired, until the proponent files its additional responses, the Planning Department can continue to receive and consider submissions from the public on either side of the border. Any submissions received are being included in the file and will be addressed in the Planning Assessment Report which will be the subject of public hearings.

$ The scope of the County's review will be determined by local and state laws, and they have no authority to re~visit or opine about federal/FCC decisions. They also indicated that they are seeking legal guidance about what scope they have to consider blanketing interference issues and to recommend permit conditions aimed at mitigating such impacts. Similarly, they are reviewing the legal requirements of the Washington State Environmental Policy Act (SEPA) as they might pertain to this matter, noting the SEPA could enable a focus on health issues. They indicated the case law related to broadcast towers is substantial.

$ Interested Canadian parties would have standing at any public hearings. Canadians, whether individuals or groups, can become a "Party of Record" and thus would be kept apprised of developments on the file, including the scheduling of hearings. Interested persons or groups can become a Party of Record by registering in advance with Whatcom County or by appearing at the hearing and requesting to speak (though this eliminates advanced notification of the hearing). This is an important initiative to take as it allows Tsawwassen residents to express their own concerns independent of their Point Roberts counterparts. It is my understanding that many Tsawwassen residents have already availed themselves of this opportunity.

41 • Any decision made by the Hearing Examiner at the conclusion of the public hearings on the granting of the Conditional Use Permit can be appealed to the entire County Council and ultimately to the State Supreme Court.

Despite assertions to the contrary that have been circulated in the media, to Delta Council, and throughout our community - my staff (locally and nationally) and I continue to explore all reasonable and available opportunities to en:sure that the concerns of Tsawwassen residents are heard and addressed by the various American authorities responsible for decisions on this proposal. As a proud resident of Delta and as your Member of Parliament, I will continue to represent my constituents in good faith on all issues, and with the best interests at heart of the community that I serve. SlnCerelY~ .~:J) ,4

Han. Ke ry·Lynne D. Findlay, P.C., Q.C .. MP ~

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