KRPI AM Radio Transmitter Site Supplemental Master Project Narrative

KRPI Supplemental Project Narrative

Table of Contents

I. REVISED LOCATION OF ANTENNA ARRAY ...... 1

II. OTHER REVISIONS AND CORRECTIONS TO APPLICATION MATERIALS...... 2

III. COMMON PROJECT CONCERNS RAISED IN PUBLIC COMMENTS ...... 4 A. Radio Frequency Interference ...... 4 B. Health Effects of Radiofrequency Emissions ...... 6 C. Visual and Character Impacts ...... 11 D. Impacts to Canadians ...... 14 E. Public Benefit...... 16 F. Avian Impacts ...... 17 G. Impacts to Property Values ...... 19 H. Notice ...... 19 I. Height Limits ...... 20

IV. TABLE OF AUTHORITIES ...... 23

KRPI AM Radio Transmitter Site Supplemental Master Project Narrative

This Supplemental Project Narrative incorporates and supplements the KRPI Radio Transmitter Site Master Project Narrative submitted with the July 2013 CUP application (July 2013 Project Narrative). It describes technical revisions to the CUP master site plan and related minor changes made to certain of the reports and studies submitted with the original CUP application in July 2013. It also discusses and responds to common project concerns that have been raised through public comment on the project proposal.

I. Revised Location of Antenna Array

The supplemental materials for the project include a revised CUP master site plan (See Tab 2). This revision shifts the location of the antenna array on the project site from the northeast (NE) portion of the site, as depicted in the original CUP master site plan submitted with the application in July 2013, to the southwest (SW) portion of the site, as depicted in the revised CUP site plan.

The antenna array location shown on the revised CUP site plan is consistent with the FCC and FAA approvals for this project. The antenna location coordinates used for the FCC and FAA applications reflect the antenna array in the SW portion of the property. However, shortly after filing the FCC and FAA applications for this project, and as part of the County permit application project due diligence, the applicant identified potential wetland areas in the SW portion of the property. While these areas were identified as non-regulated wetland areas in the Wetland Assessment prepared for the project, the antenna array location was shifted to the NE portion of the site in an effort to avoid the potential for impacts to these areas. As a result, the original CUP application included a CUP master site plan reflecting the NE antenna array location.

After submittal of the original CUP site plan, and during the processing of the CUP application, County staff conducted a field visit, verified the Wetlands Assessment conclusions, and confirmed that the small wetlands in the SW corner of the site are not regulated critical areas. This determination allowed the antenna array to be placed back in the SW portion of the site without the potential for impacts to County critical areas.

Shifting the antenna array from the NE to the SW portion of the site allows the project to better meet the CUP criteria in the Whatcom County Code, as analyzed in more detail in the July 2013 Project Narrative. In particular, the SW location will minimize visual and aesthetic impacts by allowing for a larger forested buffer to be provided between the antenna array and Tyee Drive and McKenzie Way, thereby reducing the potential risk of impact to views from adjacent properties and the potential for impact to the character of the area.

This change to the project site plan also resolves an inconsistency noted by some project comments between the July 2013 CUP master site plan and some of the documents from the federal construction permit process. As indicated above, the SW location depicted on the revised CUP master site plan is now aligned with the antenna structure location coordinates used for the

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FAA “No Hazard” determinations and with the filed FCC Antenna Structure Registrations. However, the transmitter site drawing submitted with the FCC construction permit application included a drawing depicting the structures in the NE portion of the site, while the antenna location coordinates in the application reflected the array in the SW portion of the site. The coordinates provided to the FCC and FAA have never changed since the original application in 2009, only the mapping. The FAA and FCC coordinates have always reflected the array in the SW corner of the parcel. The drawing submitted to the FCC in 2012 was submitted during the internal process of evaluating the wetlands in the SW portion of the site, and the NE corner array location was then used in anticipation that Whatcom County regulations would require avoidance of construction near those areas. As noted, the subsequent confirmation that these wetlands are not regulated County critical areas eliminates the need to pursue a NE corner location.

As noted above, in this revision of the CUP site plan, the shift of the proposed location of the array to the SW brings the structures into the positions consistent with the FAA “No Hazard” determination and Antenna Structure Registration coordinates. This adjustment does not conflict with the FCC construction permit because the Antenna Structure Registrations are controlling. (In addition, FCC permits commonly are adjusted post-construction for array movements on site necessitated by site specific limitations or local permit conditions.)

II. Other Revisions and Corrections to Application Materials

The revision of the structure locations to the southwest portion of the parcel also allows the applicant to correct several inadvertent errors that occurred in the previously submitted original CUP application materials.

First, during the process of reviewing the public comment, the applicant determined that the visual photo simulations and visual impacts analysis of the Visual Resources Technical Report (URS, June 2013) (“Visual Resources Report”) were based upon the FAA coordinates structure locations (in the SW portion of the parcel).1 The revised site plan conforms the antenna structure locations to the FAA coordinates and thus results in a location that is consistent with the June 2013 Visual Resources Report. However, the Visual Resources Report did include minor text references and some map references to the NE corner location. The Project Description in Section 2.0 at page 1 included a reference to the antenna array being located on the east portion of the property, and Figures 1 and 2 of the Visual Resources Report depicted the NE corner location. Figures B1-B10 and C1-C3 each included a small vicinity map in the bottom left corner, which also depicted the NE corner location.

Thus, the supplemental project submittal includes copies of the pages of the URS Visual Resources Report that have been corrected to conform and accurately depict the location of the antenna array in the SW portion of the site. (See Tab 4). No other changes to the Visual Resources Report are required because the photo simulations and analysis in the Report address the FAA coordinate SW location for the antenna structures.

Second, in the original July 2013 site plan, a minor drafting error mislocated the antenna array elements relative to one another (essentially depicting a mirror image). The revised site

1 The technical process for creating the photosimulations uses the geospatial coordinates in the No Hazard Determinations and Antenna Structure Registrations to place the antenna structures within the landscape. 2

KRPI Supplemental Project Narrative plan also corrects this error, and now accurately depicts the engineered antenna placements within the array in the SW corner location. (See Tab 2). Consistent with the revised site plan, a revised clearing plan is also being submitted here, reflecting the SW corner location for the array (See Tab 3).

Third, the Wetlands Assessment submitted with the original July 2013 CUP application makes text references to the location of the antenna array in the NE corner, and includes Figures that reflect the NE corner location. The revised CUP site plan has been provided for re- evaluation to Aqua Terr, the consultant who prepared the Wetlands Assessment. Aqua Terr has reviewed the new location and has prepared an Addendum letter addressing the changed location. (See Tab 5). This Wetlands Assessment Addendum also provides analysis and information responsive to the Whatcom County Critical Areas Biologist request for a new critical areas assessment to address certain questions raised during a field visit to the site by the County biologist. The Wetlands Assessment Addendum concludes that there will be no impacts to critical areas or habitat resulting from the revised SW location.

Finally, the Cultural Resource Assessment submitted with the original July 2013 CUP application makes a text reference to the location of the antenna array in the NE corner. In addition, this Assessment includes a Figure that reflects the NE corner location. To address this, the updated SW location master CUP site plan has been provided to Drayton Archaeology, the consultant who prepared the Cultural Resource Assessment, for re-evaluation. The new location has been reviewed and the Cultural Resource Assessment has been supplemented with an Amendment letter document addressing the changed location. (See Tab 6). This letter concludes that there will be no impacts to historic, cultural or archaeological resources resulting from the revised SW location.

All other studies, reports and supporting documents either reflected the SW corner location when originally prepared, or were prepared for the entire site and do not reference a specific antenna array location on the property, therefore requiring no changes.

In addition to the re-evaluation of selected studies, reports and supporting documents for the project, a review of the SEPA Environmental Checklist submitted with the original CUP application was necessary to identify any changes to the Checklist resulting from the site plan changes. That review identified the following changes to the Checklist: (1) in the description of the proposal’s location in the north central portion of the 10.62 acre property (See Section A-12, p. 4) instead of the revised proposed southwest corner location; and (2) in the identification of the wetlands on the property as critical areas (See Sections A-11, p. 3, B-3(a), p. 7, and B-8(h), p. 13), when in fact they are not critical areas regulated by the County. (See Tab 7) These changes are minor and do not affect the analysis of impacts in the SEPA Environmental Checklist submitted with the July 2013 CUP application.

In summary, Whatcom County’s determination that the wetland areas in the SW portion of the property are not regulated enables the applicant to harmonize the FAA, FCC, and Whatcom County applications, including all supporting documents, studies and reports, and the SEPA Environmental Checklist. The revised SW antenna array location better meets CUP criteria by shifting the project impact farther away from Tyee Drive and McKenzie Way and

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reducing the potential risk of impact to views from adjacent properties and the potential for general character impacts.

III. Common Project Concerns Raised in Public Comments

The County has received a large amount of public comment both in support of and in opposition to the project. The public comments in opposition to the project include many similar topics of concern that can be categorized into issues. In addition to the individual comments, there were four opponent position papers submitted to the County, which reiterate the same issues from the individual comments received. This section addresses the common project concerns that were raised through public comment and incorporates and supplements the analysis contained in the July 2013 Project Narrative:

A. Radio Frequency Interference

The majority of public comments in opposition to the project raise radiofrequency (RF) interference concerns. They claim that “blanketing interference” will disturb communications and other electronic devices used by government agencies and in homes and local businesses in Point Roberts and elsewhere, and that such interference cannot be fully mitigated based on past complaints and FCC proceedings involving the Ferndale site. None of the claims are supported by evidence. Nor can they be addressed in these CUP proceedings since, as more fully discussed below, the FCC has exclusive jurisdiction over regulation and resolution of RF interference issues, and local regulation of such issues is preempted by federal law.

“Blanketing interference” occurs “when an AM broadcast station’s signal strength at the affected receiver is sufficiently strong to ‘overload’ the receiver, and to partially or completely prevent it from receiving other broadcast signals.” CUP Application, Hatfield & Dawson, Handbook: Eliminating Radiofrequency Interference from Electronic Equipment (January 2013); See also FM Broadcast Station Blanketing Interference, 57 RR 2d 126 (1984); Calvary Educational Broadcasting Network, Inc., 7 FCC Rcd 4037 n.3 (1992). FCC regulations govern the circumstances in which a broadcast licensee must resolve blanketing interference. 47 CFR §73.88; §73.318(b)-(d). In particular, they require AM radio stations to satisfy all complaints of blanketing interference within a defined radius of the transmitter, known as the 1 V/m contour, for one year. The resolution of the complaints must be at no cost to the complainant. Following the one year period, these regulations require the station to provide technical information or assistance to complainants. As discussed in more detail in the September 30, 2013 Letter to Planning and Development Services Re: Radiofrequency Interference, KRPI has committed to go beyond these minimum requirements by providing and maintaining interference resolution services to members of the Point Roberts community for the life of the transmitter site.

Contrary to statements in public comment letters, there is no evidence (as opposed to fears or speculation) that any communications devices in Point Roberts will experience blanketing interference. As discussed by Hatfield & Dawson, susceptibility to blanketing interference is a function of receiver design characteristics. Hatfield & Dawson, Engineering Response to Petition to Deny of Point Roberts Taxpayers Association and Informal Objection of the Cross-Border Coalition, p. 2 (February 3, 2014) (See Tab 15). “Until the transmitter is turned

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on, it is pure speculation whether there will be interference, what kind of interference there will be, and what solutions will be required to resolve interference.” Id. at 2-3.

Likewise there is no evidence that if future blanketing interference were to occur, it could not be mitigated. As explained by Hatfield & Dawson, “[e]xperience has shown that blanketing interference can be mitigated.” Hatfield & Dawson, Engineering Response to Petition to Deny of Point Roberts Taxpayers Association and Informal Objection of the Cross-Border Coalition, p. 3 (February 3, 2014) (See Tab 15). In fact, in all blanketing interference issues that Hatfield & Dawson has been involved with, it knows of no case where blanketing interference could not be solved. Id. This includes the complaints of RF interference from the Ferndale site, which several public comment letters cite as evidence that blanketing interference cannot be mitigated. See, FCC Decision Letter, February 19, 2008 (Tab 14.2).

As pointed out in the October 25, 2013 Letter to Whatcom County Planning and Development Services regarding the Ferndale site, the complaints about the Ferndale site in the public comments are not relevant evidence of possible future RF interference in Point Roberts.

First, there is no evidence that devices in use in Ferndale in the early 2000’s would be the same devices that may be in use in Point Roberts in 2015 and after. Technology is changing at such a great rate that it is useless to speculate about what the potential for future interference in one geographical location will be based on 10+ year old alleged past interference at another location. The average life of a computer is 3 -5 years. Any devices that were in use in between 2002 and 2005 in Ferndale are unlikely to be the same devices that will be in use in 2015 in Point Roberts.

Second, the FCC made a final determination that complaints about interference in Ferndale were properly resolved or were without merit. The record from the 2005 FCC relicense proceeding concerning the Ferndale site confirms this: it demonstrates that there were relatively few documented instances of regulated blanketing interference, that from the time of their acquisition of the station, BBC Broadcasting took all required steps to address interference, and that all complaints of interference that were reported to the station from 2002 on were successfully resolved. See, FCC Decision Letter. (Tab 14.2) Thus, contrary to the opponents’ claims, BBC has at all times complied with governing FCC regulations on blanketing interference resolution.

Nor is there evidence that the transmitter will interfere with medical devices such as pacemakers and defibrillators, as some public comments have alleged. Based on information obtained from Medtronic, a major manufacturer of these devices, Hatfield & Dawson concluded that there were no areas potentially accessible to the public where the field intensity limits established to protect the functioning of these devices would be exceeded because of the signal strength of the KRPI antennas. See Hatfield & Dawson, Letter Re: Medtronics Interference to Medical Devices, June 10, 2014 (Tab 17.1).

There is thus no evidence—as opposed to fears or speculation—that any communications devices in Point Roberts will experience blanketing interference from the proposed KRPI transmitter facility; nor is there evidence that if future blanketing interference were to occur, it could not be fully mitigated. As indicated above, FCC regulations govern the circumstances in

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which a broadcast licensee must resolve blanketing interference, and the applicant fully intends to comply with and even exceed the requirements in these regulations regarding RF interference resolution.

Because the FCC has exclusive jurisdiction over regulation and resolution of RF interference issues, local regulation of such issues is preempted by federal law. Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 325 (2nd Cir. 2000) (finding local permit condition requiring users of communications tower to remedy any interference with homes in the area to be within exclusive authority of FCC, and thus preempted); Broyde v. Gotham Tower, Inc., 13 F.3d 994, 997-98 (6th Cir. 1994) (affirming dismissal of nuisance suit against radio station regarding interference with home electronic equipment because RF interference fell within FCC’s exclusive jurisdiction over radio transmission technical matters); In re Cingular Wireless L.L.C., 18 F.C.C.R. 13126 (July 7, 2003) (finding local ordinance requiring showing that communications facility would not degrade or interfere with the county’s public safety communications system, and allowing permit revocation as a remedy, infringed on FCC exclusive jurisdiction over RF interference and was preempted); In re Matter of 960 Radio, FCC 85-578 (1985) (concluding “that federal power in the area of radio interference is exclusive; to the extent that any state or local government attempts to regulate in this area, their regulations are preempted.”); see also, Commission Staff Clarifies FCC's Role Regarding Radio Frequency Interference Matters, 19 F.C.C.R. 11300 (June 24, 2004) (FCC holds exclusive jurisdiction over the regulation and resolution of RF interference issues). This principle was recognized and relied on by Whatcom County in its 1998 CUP approval for a fourth antenna structure at the Ferndale site. See October 25, 2013 letter to Whatcom County Planning and Development Services Re: CUP2013-00004 – KRPI AM Radio Transmitter Site Application, 4th attachment (“The County cannot regulate on the basis of ‘blanket interference’ since that is the Federal Communication Commission’s (FCC) responsibility.”). The same is true for the proposed Point Roberts radio transmitter: The County is preempted by federal law from conditioning or denying the CUP application based on concerns about RF interference.

B. Health Effects of Radiofrequency Emissions

Approximately 10% of the public comments question whether the radiofrequency energy (“RFE”) of the KRPI signal will be harmful to public health. A number of these comments directly or indirectly question or challenge the governing federal guidelines limiting RFE adopted by the FCC and codified at 47 CFR §1.1310. These comments explicitly or impliedly urge the County to deny the KRPI conditional use permit application on the grounds that KRPI’s demonstrated compliance with FCC regulations establishing exposure limits for RF emissions (“RFE”) is insufficient or irrelevant. These comments urge the County to accept two premises: first, the premise that the FCC exposure limits do not adequately protect human health because the limits are not low enough or because allegedly those limits “don’t address non-thermal effects” of RFE; and second, the premise that it is legally acceptable for the County to substitute its own judgment for that of the FCC, or to otherwise ignore FCC regulations. Both of these premises are false, as discussed in detail below. In particular, the County cannot legally deny or otherwise regulate the KRPI application on the basis of RFE health effects, because so long as KRPI complies with the FCC regulations, the County is federally preempted from such action. The FCC has determined that the KRPI transmitter facility will not pose a risk to public health, and the County cannot reverse or reject this determination. For the County to attempt to do so

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would place the County in the position of prohibiting that which the FCC has already determined is permitted. Governing legal doctrines of federal preemption prevent this result.

The United States Supreme Court recognized over 50 years ago that the FCC’s jurisdiction “over technical matters” associated with broadcast signal transmission “is clearly exclusive.” Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 430 n.6 (1963). See also Nat’l Broad. Co. v. United States, 319 U.S. 190, 217 (1943) (FCC has comprehensive powers to regulate radio). The Federal Communications Act of 1934 (“FCA”) creates “a unified and comprehensive regulatory system for the industry.” Nat’l Broad., 319 U.S. at 213-214.

In enacting the FCA, Congress created the Federal Communications Commission (“FCC”) and charged the FCC with executing and enforcing the FCA. 47 U.S.C. §151. Under the FCA, Congress expressly granted the FCC very broad authority over all matters involving radio broadcast engineering. Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 320 (2d Cir. 2000), cert. denied, 531 U.S. 917 (2000). In describing the purposes of the FCA and of the FCC, Congress explicitly expressed the broadest and most comprehensive intent:

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies[,] and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the “Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.

47 U.S.C. § 151. The powers of the FCC include the sole responsibility to distribute radio broadcasting licenses, frequencies and power, 47 U.S.C. § 307(b); and the sole responsibility to determine “the power which each station shall use,” the “kind of apparatus to be used with respect to its external effect,” and the coverage “areas or zones to be served.” 47 U.S.C. § 303(c), (e, )(h).

This broad language expresses no limits on the FCC’s authority over these subjects, and strongly communicates Congressional intent that the FCC’s authority over broadcast signals and their effects is to be unrestricted and unhindered by interfering or conflicting state or local action. See, Fidelity Fed. Savs. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 161, 162-63 (1982) (where Congress vests an agency with broad authority to regulate to effect statutory purposes, the agency’s power includes the power to preempt state law); Int’l Paper Co. v. Ouellette, 479 U.S.

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481, 494-95 (1987) (state action that would interfere with methods by which a federal statute is designed to reach its goal is preempted); Big Stone Broad., Inc. v. Lindbloom, 161 F.Supp.2d 1009, 1017 (D.S.D. 2001) (FAA’s detailed regulations promulgated under the Federal Aviation Act of 1958 preempt contrary state regulations).

Pursuant to the broad authority granted to it by Congress, the FCC has enacted comprehensive regulations governing broadcast engineering and licensing. These regulations balance a myriad of licensing, technical, health, and free speech issues within the scope of the FCC’s sole authority to regulate interstate and foreign commerce with respect to communication. The FCC, for example, regulates AM radio transmission system emissions, 47 C.F.R. §73.44, AM antenna operating power, 47 C.F.R. §73.51, and broadcast station blanketing interference, 47 C.F.R. §73.88. Before obtaining a federal license to install a broadcast antenna, operators must specify a definite facility property site and “include full details of the antenna design and expected performance.” 47 C.F.R. §73.33.

The comprehensive FCC broadcast engineering regulatory framework includes authoritative regulations designed to protect human health from radio frequency emissions. 47 C.F.R. §1.1310. These FCC RFE guidelines protect worker safety and public health by limiting the maximum permissible exposure to RFE in terms of magnetic and electric field strength and power density of signal transmission. Id. The FCC will not issue a construction permit for a transmitter facility unless an applicant has demonstrated that it can comply with these guidelines, 47 C.F.R. §§1.1306-1.1307, and the FCC maintains enforcement power to ensure compliance with the exposure limits of § 1.1310 for the lifetime of a transmitter facility. 47 U.S.C. §502, §503(b); See also 47 U.S.C. §312.

The FCC RF exposure guidelines are based on criteria published by the National Council on Radiation Protection and Measurements (“NCRP”) and the American National Standards Institute/Institute of Electrical and Electronics Engineers, Inc. (ANSI/IEEE), Second Memorandum Opinion and Order, Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62, 12 F.C.C.R. 13494, 13496 (August 25, 1997), and “represent a consensus view of the federal agencies responsible for matters relating to public health and safety.” OET Bulletin No. 65, at 8 (August 1997); 12 F.C.C.R. at 13497 (RF exposure guidelines are supported by federal agencies charged with health and safety responsibility). Agencies consulted by the FCC in developing the guidelines include the Environmental Protection Agency, the Food and Drug Administration, the Occupational Safety and Health Administration, and the National Institute for Occupational Health and Safety; and the FCC’s evaluation included consideration of the environmental impact of the RFE standards, including the cumulative effects of radiation from multiple towers. Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90, 94 (2d Cir. 2000) (rejecting claims that the guidelines failed to account for non- thermal effects of RFE), rh’g denied, 217 F.3d 72, cert. denied 531 U.S. 1070 (2000).

As recently as March 27, 2013, the FCC declared that “continued use of our present exposure limits is currently supported by statements from significant qualified expert organizations and governmental entities.” Notice of Inquiry, ET Docket No. 13-84, Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies, 28 F.C.C.R. 3498, 3571 (March 27, 2013) (citing National Council on Radiation Protection and Measurements, “Biological Effects of Modulated Radiofrequency Fields”, (NCRP

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commentary No. 18, December 2003). In the Inquiry, the FCC initiated a proceeding to determine whether there is a need to reassess its RF exposure limits, while declaring that “We continue to have confidence in the current exposure limits, and note that more recent international standards have a similar basis.” 12 F.C.C.R. at 3501, 3570.

The FCC RF exposure guidelines have been upheld on judicial review. EMR Network v. FCC, 391 F.3d 269 (D.C. Cir. 2005) (affirming that the FCC could properly rely on the work of the IEEE, EPA and FDA in setting guidelines for RF exposure), cert denied, 54 U.S. 1116 (2005); see also, Cellular Phone Taskforce, 205 F.3d at 90-91 (all expert agencies consulted by FCC found guidelines based on ANSI and NCRP satisfactory; FCC acted properly in relying on ANSI conclusion that “no reliable scientific data exist indicating that nonthermal exposure [is] meaningfully related to human health.”).

Federal courts have expressly recognized that federal law preempts state or local regulation or action based on the operation of communications equipment that is in compliance with the FCC’s RF exposure limits. Murray v. Motorola, Inc., 982 A.2d 764, 775-78 (D. Col. 2009) (federal law preempts claims for bodily injury from cell phones that meet the FCC’s RFE standards; state regulation having effect of altering public policy balance struck by FCC’s adoption of the RFE standards would upset the balance the federal agency struck; preemption extends to claims based on alleged non-thermal effects); Farina v. Nokia, 625 F.3d 97, 122-126 (3rd Cir. 2010) (preempting state-law claim that cell phones in compliance with FCC RFE standards are unsafe to operate without headsets, because it conflicts with federal law; claim necessarily poses challenge to adequacy of FCC regulations, and interferes with federal agency balance struck between competing interests) ; Champion v. Gerst, 2005 WL 1971167 (Mass. Land Ct. 2008) (Congress has given FCC exclusive jurisdiction to regulate RFE and RFI). See also, Jasso v. Citizens Telecommunications Co. of California, Inc., 2007 WL 2221031 (E.D. Cal.) (allowing state law tort claims to proceed without showing the existence of a violation of FCC RFE guidelines would conflict with federal law; telecommunication facility could not be deemed “ultrahazardous” under state law without conflicting with FCC balancing between the need to limit exposure to RF electromagnetic fields and the requirement to provide public telecommunications services); In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1003 (2008) (state tort claims preempted because any other rule would require juries to decide permissible levels of radiation exposure and adequacy of safety procedures at nuclear plants-- issues explicitly reserved to the federal government.”); Kobar v. Novartis Corp., 378 F. Supp. 2d 1166, 1173 (D. Ariz. 2005) (state law FDA fraud claims preempted, due to interference with FDA’s “complicated approval process”).

Asking local government to deny a land use permit for an AM radio broadcast facility that the FCC has determined complies with FCC RFE standards would conflict with the sole authority over such issues vested in the FCC by Congress. A fundamental aspect of the FCC’s authority is to establish a uniform system for designing, operating and licensing radio broadcast facilities. Because the FCC is charged with managing efficient use of United States radio spectrum, and with the overarching responsibility to establish nationally the number, kinds and licensed locations of such broadcast facilities, state and local government cannot intrude upon the sphere already occupied by the FCC with respect to radio broadcasting without trampling on the uniformity of the federal system. Any effort to engage in local land use permit decision- making based upon radio frequency emissions contradicts the federal guidelines for controlling

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such emissions, and would alter the design of radio broadcasting facilities, their operating power, the ability of such facilities to meet minimum efficiency standards, and their mitigation options, all matters governed exclusively by FCC regulations. Furthermore, denial of a siting permit by a local government based upon RF emissions would interfere with the FCC’s broadcast licensing decisions – decisions that already examine and allocate licenses based on geography and spectrum management, and involve a complicated set of factors including population size and access to speech. See In re Tuck, 3 FCC Rcd. No. 18 (Aug. 24, 1988).

Furthermore, any denial of a siting permit based upon RF emissions (or any adoption of opposing or differing local emissions standards) would assume that the FCC system for evaluating and controlling the health effects of RFE is improper, and thus would lie in direct derogation of the “mechanisms in place for accommodating changes in scientific knowledge” employed by the FCC. See EMR Network, 391 F.3d at 273, citing Cellular Phone Taskforce, 205 F.3d at 90-91. Local interference with the authority of the FCC over this area would conflict with the long-standing, comprehensive, and evolving review of RFE standards and guidance by the FCC. Cellular Phone Taskforce, id.; Inquiry, 28 F.C.C.R. 3498. See also, Farina v. Nokia, 625 F.3d at 125 (purpose of Federal Communications Act is to make available a rapid, efficient, nation-wide and world-wide wire and radio communication service with adequate facilities at reasonable charges; FCC must consider the safety of life and property and also establish an efficient communications network subject to uniform technical standards; “no state lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities”) (citations omitted).

KRPI has obtained a construction permit from the FCC, for which it was required to demonstrate that it will comply with the RFE guidelines of 47 CFR §1.1310. In its application to Whatcom County for a CUP, KRPI again has submitted technical information demonstrating that it will comply with these federal RFE regulations. See Hatfield and Dawson, RF Exposure Standards for KRPI (January 15, 2013). Whatcom County may review this information to confirm compliance with the federal standards, but it should refrain from any attempt to regulate RFE independently of the FCC guidelines, or to deny a land use permit based upon RFE because doing so would be in direct conflict with the FCC RFE technical standards that govern the facility. The FCC has made a determination that the facility will not present a risk to public health from RF emissions. Any contrary determination by Whatcom County would necessarily directly conflict with the FCC standards, and require a determination that the FCC standards are inadequate. Such action is preempted by federal law. Farina, 625 F.3d at 122-25 (uniform technical standards are essential to wire and radio communications service; balance struck by FCC to establish protective RFE standards while maintaining quality communications services must not be disturbed or second-guessed); Champion, 2005 WL 1971167 (special use permit could not be conditioned or denied based on RFE/RFI; speculative fears regarding presence of RFE/RFI could not form the basis for decision on the permit application).

Even though County consideration of the health effects of RF emissions is preempted by federal law, there is scientific consensus that RFE levels in compliance with FCC exposure limits do not pose a risk to human health. This is the conclusion reached in two reports prepared for this application by Kenneth R. Foster, Ph.D (See Tab 11) and Exponent (See Tab 12) to respond to public comments and questions from County staff regarding health risks from RF exposure.

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The Foster report concludes that the consensus of scientific judgment is that there are no established health risks from exposure to RF energy at levels below FCC exposure limits. (Tab 11.1, p. 1). This conclusion is based on major reviews, under the auspices of health agencies and other official bodies, of the thousands of studies in the scientific literature regarding the possible health effects of RF energy. As discussed in the Foster report, these neutral and comprehensive reviews fail to find clear evidence of health risks from RF energy at exposure levels below FCC exposure limits. (See Tab 11.1, pp. 5-12). The same is true of recent epidemiology studies on populations living near AM broadcast towers, which likewise fail to persuasively demonstrate any health problems associated with living near the towers. (See Tab 11.1, pp. 13-14). Based on these judgments from an immense scientific literature of more than a half century, which make it highly unlikely that any major hazard would be demonstrated in the future, the Foster report concludes that there are no established hazards of RF energy at exposure levels which the public will experience from the KRPI facility. (Tab 11.1, p. 14)

The Exponent report reaches a similar conclusion: that scientists have found that RF levels in compliance with FCC exposure limits do not pose a risk to human health. (Tab 12.1, pp. iii-iv). This conclusion is also based on review of comprehensive assessments, conducted by numerous national and international scientific and health agencies, of the research on RF fields and health published in peer-reviewed scientific journals, none of which found any persuasive evidence for a health risk from exposures of the general public to RF fields at or below the FCC exposure limits. (See Tab 12.1, pp. 9-12). These assessments underwent a thorough and comprehensive scientific review process for evaluating epidemiologic research, called a weight- of-evidence review, which involves a systematic identification of the relevant studies on the exposure of interest published in peer-reviewed scientific literature from these research areas, followed by a critical evaluation of each study in the cumulative body of research, giving more weight to studies of higher quality and validity. (See Tab 12.1, pp. 2-8). The cherry-picked studies submitted in public comments do not account for this widely accepted evidence; the flaws and shortcomings of the studies from the public comment are discussed in the Exponent report. (See Tab 12.1, p. 13-19).

Based on the evaluation of the studies considered in the weight-of-evidence reviews, the Exponent report concludes that the project’s compliance with the FCC RF exposure limits ensures no inherent health risks at locations where the public might be exposed. (See Tab 12.1, p. 22-23).

C. Visual and Character Impacts

There were a number of comments from the public contending that the project will not be consistent with Point Roberts character or will drastically alter the character of Point Roberts. These assertions were not supported with facts or technical or quantitative analysis of character impacts. Most of the comments and concerns were related to the visual impact of the antennas along Tyee Drive, which is the identified sole entry to Point Roberts from Canada (the importance of Tyee Drive was noted in the July 2013 Project Narrative at p. 8). A thorough discussion of the project’s consistency with the character of Point Roberts and the potential for impacts to that character was provided in the July 2013 Project Narrative at pp. 14-17 (addressing CUP Criteria #2 in WCC 20.84.220). Additional detail on this topic is provided in this Supplemental Project Narrative.

KRPI Supplemental Project Narrative

Some members of the public suggested the facility would tower over the trees on site, referring to the array as a “massive industrial tower farm”. There is no basis in fact to support this characterization. In actuality, at 145’, approximately two-thirds of each antenna will sit below the established tree line on the property. The average tree height along Tyee and McKenzie, as surveyed and shown on the revised site plan, is 105’. (See Tab 2). The tallest tree on McKenzie is 142’ and the tallest tree on Tyee is 124’. In addition, the antenna array is located at elevations that are 5’-20’ below the grade of Tyee and McKenzie. The result of this is that the highest antenna will extend only 20’-40’ above the average tree height along the adjacent streets. The tops of the antennas will sit at or below the tallest tree height registered along McKenzie and will extend only 5’-15’ above the tallest tree height registered along Tyee. These tree heights were surveyed only along each road frontage and do not take into account trees across the rest of the site, which are of similar height. The antenna array in its revised location will sit approximately 240’ from Tyee Drive and 100’ from McKenzie Way, with the majority of this area (representing 50% of the site) heavily forested. Where the array does come closer to adjacent development, buffers have been increased on the revised site plan in response to public concerns. Buffers along McKenzie Way and along the property boundary near adjacent lots have been increased from 25’ to 50’ to provide additional screening.

Thus, the antenna array will not tower over the trees on the site and will not present as a “massive industrial tower farm.” This is evident from the Visual Resources Technical Report provided with the application, which identifies only a limited number of locations where the antennas are even visible, and where visible, their potential impacts on visual resources are minimal. As discussed in the Visual Resource Technical Report, where a viewer is relatively close to the site, the close perspective will diminish or eliminate views of any portions of the structures that might be above the trees. (See Tab 4.3, p. 10 & Fig. 3.) As noted in the July 2013 Project Narrative, at the heights where the antennas will be visible above the tree line, they will taper from 24” to 12”, and will remain unobtrusive. (See, e.g., Tab 13.2, Photo 3 (KRPI Ferndale antennas).

Thus, even though the tops of the antennas may be visible from a few locations, visual impacts will be minimal. Contrary to some public comments, it is not required that communications utility structures be invisible in order for these structure types to be harmonious with a rural or rural residential area. See, e.g. Citizens to Preserve Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461, 475, 24 P.3d 1079 (2001) (The mere fact that a cell tower is visible from some locations does not equate to a finding of “materially detrimental to the public welfare or injurious to the property” sufficient to support denial of a variance for the facility”); see, also, Seattle SMSA Limited Partnership v. San Juan County, 88 F. Supp.2d 1128 (WD WA, 1997) (Conclusory findings that proposed tower are contrary to the land use plan, will detract from the natural beauty and resources of the islands, or are contradictory to the existing, rural- residential development patterns in the proposed location are not sufficient to support denial of a CUP). Nor does the law require that all adverse impacts be eliminated; if it did, no change in land use would ever be possible. Maranatha Mining, Inc. v. Pierce Cy., 59 Wn. App. 795, 804, 801 P.2d 985 (1990).

Arguments were also presented that construction of tall antennas in general, whether or not screened, is not consistent with and would “destroy” Point Roberts character. The mere existence of a communication facility in Point Roberts does not result in a negative impact on the

KRPI Supplemental Project Narrative

Point Roberts community. Other communication facilities exist in Point Roberts, and in other rural areas in Whatcom County. For example, in Point Roberts, there are two existing antenna facilities--a cell tower housing a Verizon Wireless facility located on Park District property at 2050 Benson Road and a Whidbey Telecom cell tower located at 1957 Johnson Road, each of which is taller than the proposed antennas and located on property with much less screening. These towers have been in place for several years and have not destroyed or even adversely affected the character of Point Roberts

Thus, construction of AM antennas does not in and of itself equate to destruction of character, either rural or urban. To the contrary, AM antennas are located in rural and urban areas all across Puget Sound and lower British Columbia and often go unnoticed by the members of the immediate community. Examples of rural-located AM antennas include the KARI/KVRI facility in Drayton Harbor, which is much larger than the proposed KRPI facility and is located in an open field. This array is also located across the street from a dense housing development and in close proximity to Birch Bay and the Semiahmoo area of Blaine, both developed areas with unique character traits. There is no evidence that this facility has irreparably damaged the character of either of these communities or the surrounding rural properties. The KGMI facility located in the Barkley area of Bellingham includes three antennas, each at 300 feet in height. This array is surrounded by urban development with limited screening and has not generated public complaints regarding compliance with the character of the Barkley area of Bellingham. Contextual and aerial photos of these and other AM arrays located in Whatcom County, Puget Sound and lower British Columbia are provided in the Context Photo Exhibit included with the supplemental materials. (See Tab 13).

In considering the issue of whether the project is consistent with the character of Point Roberts, it is important to note that the general character of Point Roberts has changed over time and is evolving now. Point Roberts is a transitional community, which is influenced by its proximity to Canada and its isolated location. The community includes a number of dense housing developments, including a new 61-lot subdivision that is currently being built in the SE corner of the Point. These developments are by no means rural in nature; their predominant character trait is that they are screened by forested buffers, much as is the proposed project. Point Roberts also has a large marina, an airport, an 18-hole golf course and other tourist related facilities, all of which influence the character of the area. There are several gas stations located along Tyee Drive that cater directly to Canadian shoppers (listing prices in liters for example); these stations are located across Tyee Drive from a 30,000 + square foot grocery store. Many of the existing cottages along the west and south shores of Point Roberts are being purchased by Canadian investors, demolished, and replaced with new large single family homes. The existing cannery building located to the north of Lighthouse Point Park is for sale and will ultimately be redeveloped with a commercial use of some type. All of these development activities influence the character of Point Roberts, and taken together they represent a shift in the character of the Point from a small secluded rural community to a larger, more dense, tourist oriented community (much like the Birch Bay community located immediately to the south of the KARI/KVRI AM facility noted above). The only overriding characteristic that is shared across the Point is an effort to retain mature tree cover on forested lots. The proposed project is consistent with this effort, retaining over 50% of the tree canopy on site, in locations that screen the facility from adjacent properties and public streets.

KRPI Supplemental Project Narrative

There are thus no significant aesthetic or visual impacts from the project. Consistent with CUP Criteria #2, the project will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and such use will not change the essential character of this area. The project is thus consistent with the character of Point Roberts.

D. Impacts to Canadians

Many of the public comments raise concerns about potential impacts to the residents of Tsawwassen, British Columbia (BC), Canada from the project—primarily radiofrequency (RF) interference concerns. They allege that the applicant failed to acknowledge or account for these impacts to Canadian residents, both in the FCC construction permit application and CUP application, or to comply with international treaties and agreements. To the contrary, the applicant fully complied with the process for the FCC construction permit application, and that process included compliance with applicable international treaties and agreements. Furthermore, none of these concerns are relevant to the CUP application or within the jurisdiction of the County.

The substance of the concerns of RF interference impacts are similar to those raised by residents of Point Roberts. As discussed in Section III-A, above, the FCC has exclusive jurisdiction over regulation and resolution of RF interference issues, and local regulation of such issues is preempted by federal law. See, e.g. Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 319-22 (2nd Cir. 2000). Thus, the County is preempted by federal law from conditioning or denying the CUP application based on concerns about RF interference impacts, whether such concerns are from residents of Point Roberts or Tsawwassen, BC.

Even so, as also discussed above in Section III-A, there is no evidence that any communications devices will experience blanketing interference from the proposed KRPI transmitter facility, whether those devices are located in Point Roberts or Tsawwassen, BC. Nor is there evidence that if future blanketing interference were to occur, either in Point Roberts or Tsawwassen, it could not be mitigated. For Point Roberts residents, this mitigation is provided for in FCC regulations that govern the circumstances in which a broadcast licensee must resolve blanketing interference. 47 CFR §73.88; §73.318(b)-(d). While these regulations do not require a broadcast licensee in the United States to resolve blanketing interference issues outside the United States, KRPI has voluntarily committed to extend to members of the Tsawwassen, B.C community the same RF interference resolution services that it will provide to members of the Point Roberts community. As set forth in more detail in the September 30, 2013 Letter to Planning and Development Services Re: Radio Frequency Information, these services will be provided by KRPI upon commencement of broadcasting from its new transmitter in Point Roberts and continue for the life of the transmitter site. Although KRPI is not legally required to address complaints beyond a period of one year from commencement of station operations, nor to work across the Canadian border on this issue, KRPI nevertheless is committed to going beyond minimum legal requirements by maintaining its interference complaint resolution service for the life of the transmitter, and by providing the service to anyone affected regardless of whether they reside in Point Roberts or Tsawwassen.

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In addition to concerns about RF interference impacts, public comment letters also complain that the applicant failed to provide population counts and other information relevant to RF interference impacts to Canadian residents or to otherwise account for cross-border blanketing interference in its FCC application. Contrary to these claims, the applicant was not required to do so. See Hatfield & Dawson, Engineering Response to Petition to Deny of Point Roberts Taxpayers Association and Informal Objection of the Cross-Border Coalition (February 3, 2014) (pp. 199-201, BBC’s Consolidated Opposition to Petition to Deny and Informal Objection, February 2014, Tab 15). Even if it were, the scope of information provided to and considered by the FCC in processing applications to the FCC is not relevant to the CUP application or within the jurisdiction of the County. Questions of compliance with federal laws and regulations regarding blanketing interference are within the exclusive jurisdiction of the FCC, not Whatcom County. See, e.g. Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 319-22 (2nd Cir. 2000) (FCC has exclusive jurisdiction over regulation and resolution of RF interference issues).

The same is true for claims in public comment letters that the applicant failed to address RF interference impacts to Canadian residents in its CUP application. No County Code regulations require that the applicant address RF interference impacts to Canadians in its CUP application. Nor would the County have regulatory jurisdiction over such issues even if they did so. As indicated above and in Section III-A, the County is preempted by federal law from conditioning or denying the CUP application based on concerns about RF interference impacts, whether such concerns are from residents of Point Roberts or Tsawwassen, BC.

Some public comments assert that the project violates international treaties and agreements. Such assertions are neither true nor relevant. Regulatory jurisdiction over blanketing effects to Canadian residents from the proposed Point Roberts AM radio transmitter project lie with Industry Canada, and the legal mechanism for seeking input from Industry Canada is through the inter-governmental coordination process set forth in the “Agreement Between the Government of Canada and the Government of the United States of America Relating to the AM Broadcast Service in the Medium Frequency Band, Ottawa, 1984” (Agreement). Hatfield & Dawson, Engineering Response to Petition to Deny of Point Roberts Taxpayers Association and Informal Objection of the Cross-Border Coalition (February 3, 2014). The process set forth in this Agreement was followed in this case. In fact, Industry Canada reviewed and approved the KRPI application. See Letter from Peter Broadbent, Political-Economic Officer, U.S. Consulate Vancouver to Arthur S. Reber (Sept. 16, 2013), (p. 63, BBC’s Consolidated Opposition, Tab 15). In any event, Whatcom County lacks authority over issues of compliance with an international treaty and the County CUP application process is not an appropriate forum to raise or consider such issues.

Finally, a few public comments assert that the proposed KRPI facility may be out of compliance with certain regulatory guidelines of the FCC which govern blanketing interference. These comments reflect a misimpression of the regulations in question. 47 CFR § 73.24(g) requires a “satisfactory showing” that the population within the 1 V/m contour of a transmitter facility does not exceed 1% of the population within the 25 mV/m contour. This regulation includes an exception where the population within the 1 V/m contour is 300 or less. In addition, the FCC has the authority to grant waivers under this regulation, which it does reasonably often. See, p. 200, Tab 15 (Hatfield & Dawson, Engineering Response to Petition to Deny of Point

KRPI Supplemental Project Narrative

Roberts Taxpayers Association and Informal Objection of the Cross-Border Coalition). In the case of the KRPI FCC construction permit, the FCC granted such a waiver. Id. In addition, examination of comparative contour maps and population counts for other AM radio stations in Whatcom County, Puget Sound and Lower B.C. areas demonstrates that the population ratios for the Point Roberts KRPI facility are within normal parameters for similar stations in the area. See, Tab 20.

E. Public Benefit

Members of the public have also asserted that the KRPI facility will not provide a public benefit, either community or economic in nature. The July 2013 Project Narrative addresses these public benefits thoroughly at pp. 6-9, 17, and 19-20. They include the following:

Emergency Broadcast Services – KRPI is a participating Emergency Alert System (EAS) station and EAS messaging is in English. This covers Amber Alerts and Tsunami Warnings, and the station has capacity to go live to deliver emergency information in English to the Point Roberts community. This participation requires KRPI to provide emergency broadcast services in the event there is need. Members of the public have asserted that the signal will interfere with existing emergency communications networks operated by fire, police and other first responders. This assertion is not supported with any factual or technical analysis and is simply wrong. As a part of follow up due diligence, the US border patrol was invited to test their communications equipment at the existing KRPI facility in Ferndale, and they did do so. To the applicant’s knowledge, no issues of material concern were detected in these tests.

Community Broadcast Services – In addition to the ability to broadcast emergency services specific to Point Roberts, the station will also provide a platform for local community organizations and groups to promote community events. Fundraisers, concerts, school events and other social activities taking place in Point Roberts can be advertised on the station. The current programming is 70% Punjabi, 15% English, 10% Hindi, and 5% Urdu. The Federal Communications Commission will require programming specifically tailored to Point Roberts when broadcasts commence from the new transmitter site. KRPI is planning and will be required to produce an English language program specifically for Point Roberts. Furthermore, programming composition for radio stations is fluid and continually reevaluated in light of competitor offerings, to achieve maximum audience appeal and reach. The station could change programming formats completely in the future. Additionally, KRPI is also willing to provide studio facilities for Point Roberts residents who wish to create a streaming radio station geared to Point Roberts. While KRPI can currently be picked up in Point Roberts, the signal strength will improve at night, in Point Roberts and also across north Whatcom County. The current night- time signal strength from KRPI’s Ferndale location is limited to 10 kW. The Point Roberts location will allow 50 kW day and night, and the increase in general signal strength will provide an increased listener base for community-related programming and advertising. This could result in more awareness of Point Roberts community events across mainland Whatcom County. In addition, KRPI has a documented and enviable public service track record, raising $1 million for the Pakistan earthquake relief fund, $550,000 for Haiti earthquake relief, $700,000 for BC Children’s Hospital, blanket drives for the homeless, and $650,000 for the Fraser Valley University. These efforts exemplify the station’s capacity for community service and the potential for future service benefits to Point Roberts.

KRPI Supplemental Project Narrative

Advertising – The same is true for commercial advertising opportunities for Point Roberts businesses; an improved signal reaching more residents of the County will mean that more people will hear commercial advertising for Point Roberts businesses that are broadcast on the station. Public comment has suggested that people in Point Roberts can already tune in to KRPI and so no advertising benefit would be provided. This is misguided logic; Point Roberts is predominantly dependent on tourism and non-year round residents to support the local economy. A broader listening base located outside of Point Roberts will bring new ears to local advertising and promote Point Roberts businesses to their target market (non-resident tourists).

Changing Broadcast Content – There is a focus among the public comments on the broadcast content (Sher e Punjab broadcasting to a predominantly SE Asian population). KRPI must serve its FCC designated city of license (and will do so as discussed above), but there is no legal requirement that the service be limited to the city of license. There is no legal prohibition on including programming of interest to BC residents in the station’s overall programming lineup. Under the First Amendment to the United States Constitution, the content of broadcast programming is not subject to government regulation except in very limited circumstances that do not apply here, such as indecent content. Radio listeners tend to think of radio station formats as necessarily focused on a specific geographic area, like KGMI news covering Bellingham and Whatcom County. KRPI instead tailors its programming to a community of people regardless of geo-political affiliation. Programming originates from Whatcom County as well as other locations across Puget Sound and lower British Columbia. A focus on the current content overlooks the fact that AM broadcast licenses can and often do change ownership, and that the content broadcast on these signals can change dramatically over time. KRPI has had many formats since its inception in the 1960s, and this is an opportunity for Point Roberts to secure communications/mass media infrastructure that will evolve over time and provide a long term benefit to the community that will extend beyond the life of the current content and content provider.

Enhanced Signal in Point Roberts – Some have commented that there is no need for the project and no benefit to Point Roberts residents from relocation of KRPI since they can already pick up KRPI’s signal from its current location. Contrary to these comments, there is no requirement to show a local public need for the proposed broadcast facility. It is by definition “an essential public facility” and “public utility” under the Whatcom County Comprehensive Plan and allowed in all zoning districts, including the Point Roberts Special District, with a conditional use permit. See WCCP Ch. 2-119, 2-128, 2-129; WCCP Ch. 5; WCC 20.82.030; WCC 20.72.150. However, relocation will benefit the Point Roberts community. In addition to the community and economic benefits discussed above, the proposed relocation of KRPI will in fact improve the broadcast signal for Point Roberts, north Whatcom County, and lower British Columbia.

F. Avian Impacts

Public comments allege adverse impacts to birds from the proposed project, including concerns that RF emissions from the AM radio transmitters will negatively affect the migration and nesting patterns of birds and reduce the likelihood that Great Blue Herons will return to the abandoned Point Roberts Rookery. The County in its Notice of Additional Requirements also requested additional information about these concerns. None of these concerns are supported by

KRPI Supplemental Project Narrative

evidence in the published scientific literature, which supports the conclusion that the effects of RF energy from the KRPI transmitters on birds will be minimal to nonexistent.

In the Avian Risk Assessment submitted with the July 2013 CUP application (Curry & Kerlinger, LLC, Avian Risk Assessment, KRPI AM Radio Transmitter Project, July 2, 2012), Paul Kerlinger, Ph.D, concluded, based on the abundant literature on collision impacts and fatalities of birds at communication structures, that the risk of impacts to avian species of any kind was extremely low and possibly nonexistent because the KRPI AM radio communication structures are short (less than 61 m), have minimal lighting, and do not have guy wires, and thus do not include the risk factors with respect to birds colliding with towers identified in federal guidelines and peer reviewed publications. In an Addendum to this Risk Assessment (Tab 10.1), Dr. Kerlinger reinforces this conclusion in response to statements in a September 19, 2013 email from Albert Manville, Ph.D concerning unguyed towers, to which County staff requested a response. (See Tab 10.1, pp. 1-5). In the Addendum, Dr. Kerlinger also addresses public concerns and staff questions about the impact of a 50,000 Watt AM radio station on the migration and nesting patterns of birds, including the likelihood the Great Blue Herons will return to the abandoned Point Roberts Rookery, and concludes that the existing studies and the studies and information provided by Mr. Manville do not support the claim that electromagnetic energy at the AM radio frequency that KRPI will operate at will have a negative impact on the migration and nesting patterns of birds. (See Tab 10.1, pp. 5-9). Nor could Dr. Kerlinger find in the scientific literature any information to suggest that the KRPI AM radio transmitters will have negative impacts on Great Blue Herons, or affect their return to the abandoned Rookery. (See Tab 10.1, pp. 11-12).

The same conclusions were reached in Responses to: Notice of Additional Requirements CUP 2013-00004-KRPI Radio AM 1550, Questions 2 and 3, prepared by Linda Erdreich, Ph.D and Kenneth Foster, Ph.D, P.E. (Tab 9). In response to County staff’s questions regarding the effects of RF energy from the KRPI transmitters on bird breeding, nesting and roosting in the vicinity of the electromagnetic fields, Dr. Erdreich and Dr. Foster concluded that, based on their review of the published literature, any such effects will be minimal to nonexistent. (See Tab 9, p. 2). This includes the migration and nesting patterns of birds and the possible return of Great Blue Herons to the abandoned Rookery in the vicinity of the project site. (See Tab 9, p. 5). These conclusions are based on the fact that RF energy exposure levels are low compared to those that can be reasonably foreseen as producing adverse effects to avian species. RF exposure limits, which are only defined for humans, are designed to protect against thermal hazards. Birds are far less sensitive to thermal effects of RF energy at a given external field strength than humans. Even where there are strong electric fields in the immediate vicinity of the tower, these fields are poorly coupled into the bodies of birds because of their small body size. Thus, even for birds very close to or in direct contact with the tower, the thermal effects in birds near the KRPI antennas will be insignificant. (See Tab 9, pp. 3-5).

The same holds true regarding the antennas’ effect on the flight patterns of birds. While there is some possibility that birds could perceive RF fields when they are very close, perhaps a few feet, to the KRPI antennas, there is expected to be either no effects or minor effects on the flight patterns of birds due to the presence of the antennas. (See Tab 9, p. 5).

KRPI Supplemental Project Narrative

The Response by Dr. Erdreich and Dr. Foster also addresses the opinions and studies from Dr. Manville regarding the possible effects of RF energy on birds, and concludes that Dr. Manville’s opinions carry little weight on the issue of electromagnetic fields as related to the siting of the KRPI AM radio transmitters, and the studies cited by him are not relevant or helpful to this issue. (See Tab 9, pp. 6-9,12-13).

G. Impacts to Property Values

Some public comments allege loss of property values in Point Roberts from the project, mainly because of fears of radiofrequency (RF) interference and visual and aesthetic impacts. Public concerns about RF interference and visual and character impacts are addressed above in Sections III-A and III-C, respectively. Regarding the claimed loss of property value in some public comment letters, there is no evidence that the project or any impacts from the project will adversely affect property values. Nor is this issue a legally relevant consideration for County review of the project, either under SEPA or applicable CUP criteria.

A project’s adverse effect on property values is not a cognizable environmental impact under SEPA. See SEAPC v. Cammack II Orchards, 49 Wn. App. 609, 615–16, 744 P.2d 1101 (1987) (a project's effect on surrounding property values is not an effect on the “environment” as defined by SEPA and WAC 197–11–444); Snohomish County Property Rights Alliance v. Snohomish County, 76 Wn. App. 44, 52–53, 882 P.2d 807 (1994). (purely economic interests such as property values are not within the zone of interests protected by SEPA). Thus the County lacks substantive authority under SEPA to condition or deny the project based on some alleged adverse impact on property values. See SEAPC v. Cammack II Orchards, 49 Wn. App. at 615 (county does not have substantive authority under SEPA to deny a proposal based on adverse impact on the value of surrounding property).

It is also not a relevant consideration under the CUP criteria in WCC 20.84.220. The only CUP criterion that addresses harm to property is Criterion # 7, which considers whether a proposal “will be detrimental to any persons, property, or the general welfare by reasons of excessive production of traffic noise, smoke, fumes, glare or odors.” WCC 20.84.220(7). The proposed project will not produce any of these listed impacts to property. Nor will it be “detrimental to the economic welfare of the community” under Criterion #6, as some opponents have claimed. WCC 20.84.220(6). If anything, the project will have a beneficial impact on the economic welfare of the community. See discussion of Public Benefit in Section III-E, above.

H. Notice

Several public comments allege that public notice of the CUP application was inadequate and failed to comply with County notice requirements. In particular, they allege that they did not have adequate time to respond to the notice, that the notice should have been published in the Point Roberts All Point Bulletin, and that notice should have been provided to Canadian residents.

Contrary to these allegations, and as confirmed by County staff, notice of the application complied with all applicable County requirements: the County mailed notice to residents within 1000 feet of the external boundaries of the subject property and published notice in the “official

KRPI Supplemental Project Narrative

county newspaper,” the Bellingham Herald. See WCC 2.33.060(D). Further, the public notice provided for a 15-day comment period, as required by County Code. See WCC 2.33.060(F). There is no additional requirement to publish notice in the Point Roberts All Point Bulletin, which is not the official county newspaper. Nor is there a requirement to provide notice to Canadian residents. Even so, an article about the proposed project appeared in the All Point Bulletin during the application comment period, thereby providing actual notice of the CUP application, in addition to the notice required by County Code, to any Point Roberts residents who rely solely on that publication. In fact, the FCC construction permit application for the relocation of KRPI to Point Roberts was reported and discussed in the All Point Bulletin well before the CUP application was ever filed, as early as September 2010, which suggests that local residents have long been aware of BBC’s proposed relocation of the KRPI transmitter site to Point Roberts. (See Tab 15, pp. 46-56). And regarding complaints that the County did not provide adequate time to respond to the notice of the CUP application, the County has continued to accept public comments on the CUP application after the close of the 15-day comment period, which has given the public additional time to comment on the proposal, in addition to the time required by County Code. Thus, public notice of the CUP application was both lawful and adequate.

I. Height Limits

Several public comments argue that the proposal is not in accordance with the base zoning height limits of the Rural zone or of the Point Roberts Special District areas, generally between 25’ and 45’ feet. These comments reflect a misunderstanding of the structure of the Whatcom County Code as applied to the project.

The proposed project is a radio communication facility utilizing five vertical free- standing AM antenna structures, which together will create one broadcast signal on 1550 kHz KRPI AM. KRPI AM holds a license issued by the Federal Communications Commission (“FCC”) to broadcast at 1550 kHz. Thus, the project is a proposal to construct a “public utility” as defined in Whatcom County Code 20.97.329.1:

20.97.329.1 Public utility. “Public utility” means a use owned or operated by a public or publicly licensed or franchised agency which provides vital public services such as telephone exchanges, electric substations, radio and television stations,2 wireless communications services, gas and water regulation stations and other facilities of this nature.

Under the Whatcom County Code, the regulations that govern land use permitting for public utilities consist of the Comprehensive Plan and Chapter 20.82 of the Whatcom County Code:

2 This definition is not limited to a radio programming or radio office building. The Whatcom County Comprehensive Plan makes clear that a “utility” includes all facilities used to distribute and transmit telecommunications information. WCCP Ch. 5, Utilities Element. See also, WCCP Policy 2VV-9 (broadcast towers, including radio towers, are allowed with a conditional use permit in all zones). 20

KRPI Supplemental Project Narrative

20.82.010 Intent. The provisions of this chapter [WCC 20.82] regulate the installation, maintenance and operation of public utility lines, sanitary sewer, pipelines for oil and gas, railroads…, or maintenance facilities… Comprehensive Plan land use designations, Comprehensive Plan policy directives and the specific provisions of this chapter shall be the basis for decisions regarding utility development. This chapter applies to all zoning districts unless stated otherwise.

As described above, WCC Ch. 20.82 is a top-level overlay designation that governs public utilities. Under WCC 20.82.030(5), the proposed KRPI AM radio transmitter facility is allowed in all zones with a conditional use permit and SEPA review.3 As explained in the project narrative submitted with the CUP application, although the subject site for the proposed project is zoned R5A,4 and located within the Point Roberts Special District,5 the proposed project is a “public utility” and “essential public facility,” and therefore the height of the antenna structures is governed not by the general zone height limits of the Rural zone or Point Roberts Special District zone, but rather by the Whatcom County Comprehensive Plan “essential public facility” provisions, the conditional use permit criteria and the technical requirements of the AM radio broadcasting use. See WCCP Ch. 2, pp. 2-120, 2-128, 2-129 (Policy 2VV-9); Ch. 5; WCC 20.82.030; See also, Jaffe v. RCI Corp., 119 A.D.2d 854, 856 (1986) (where ordinance permits transmission structures in zoning district, base zone height limit of 35’ applies only to buildings and not to the transmission structure; 225’ microwave tower was properly approved). WCCP Policy 2VV-9 expressly states that “Broadcast towers, such as TV and radio towers, are allowed with a conditional use permit in all zoning districts.”

The proposed transmission structures will each be approximately 145’ tall, with total overall heights including the bases not to exceed 150’. The height of the structures is necessary to provide the signal transmission capability required for the proposed AM radio broadcast use. See, Hatfield & Dawson, Engineer Report Re: KRPI Antenna Height (January 23, 2013). The proposed equipment shelter will not exceed 35’ in height.

In adopting Chapter 20.82 of the Whatcom County Code, and expressly providing that Ch. 20.82 “applies to all zoning districts,” the County Council has made the legislative determination that a public utility use is appropriate within all zoning districts if it meets the requirements of Ch. 20.82 and the conditional use permit criteria. See 17 Wash. Prac. § 4.22 (conditional use is a permitted use, subject to being conditioned in accordance with adopted standards or guidelines); Pease Hill Community Group v. County of Spokane, 62 Wn.App. 800, 807 (1991) (inclusion of a use in a conditional use permit ordinance reflects a legislative finding of general acceptance of the use, subject to adopted standards for conditions); see also, Syracuse

3 WCC 20.82.030 reads: “Conditional uses. The following uses shall require a conditional use permit or major project permit and shall be subject to a threshold determination in accordance with the Whatcom County SEPA Ordinance:…(5) Electronic communications structures and telecommunications towers including associated maintenance and operations structures, provided this section shall not apply to any structures associated with wireless communications facilities. (6) Utility structures located above ground such as …equipment buildings and similar structures greater than 100 square feet in area.” 4 Rural zone, 5 acre minimum lot size. 5 An overlay zone which covers the geographic area of Point Roberts. 21

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Land Corp. v. Town of Clay, 112 A.D.2d 51, 52 (1985) (inclusion in zoning ordinance of use as a special use is tantamount to legislative finding that use is in harmony with general zoning plan and with the area).

Under Ch. 20.82, the KRPI proposal has been designated a conditional use. Inherent in the decision to allow this use as a “conditional” use, is the presumption that the use is one that is capable of being appropriately conditioned to be compatible in all zones. This presumption inherently includes the characteristics that are necessary for the use, including adequate structure height to make the use technically feasible. See Syracuse Land Corp., supra (town board abused its discretion in denying special use permit for AM radio transmitter). No AM radio broadcast signal can be produced or propagated to a coverage area without sufficient height. In fact, the FCC prescribes minimum physical vertical heights for antennas based on frequency. See 47 CFR §§ 73.189-.190. Local land use regulations must allow FCC licensees to achieve sufficient antenna height to comply with federal regulations and to achieve their coverage objectives. See, Koor Communication, Inc. v. City of Lebanon, 148 N.H. 618, 813 A.2d 418 (2002) (zoning maximum height limit of 42 feet that prevented construction of federally licensed AM antenna height was preempted). In Koor Communication, the court examined applicable FCC regulations, and concluded that “[a]t no frequency does the minimum [required] height appear to fall below forty-four meters or approximately 144.36 feet.” 813 A.2d. 418, 421, citing 47 CFR §73.190 Fig. 7. This minimum required height is consistent with the height proposed for the KRPI facility. See Hatfield & Dawson, AM Radio Basics Letter (Tab 16, p. 8-9).

KRPI Supplemental Project Narrative

IV. Table of Authorities

Cases

Big Stone Broad., Inc. v. Lindbloom, 161 F.Supp.2d 1009 (D.S.D. 2001) ...... 8

Broyde v. Gotham Tower, Inc., 13 F.3d 994 (6th Cir. 1994) ...... 6

Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000) ...... 8, 9, 10

Champion v. Gerst, 2005 WL 1971167 (Mass. Land Ct. 2008) ...... 9, 10

Citizens to Preserve Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461, 24 P.3d 1079 (2001)...... 12

EMR Network v. FCC, 391 F.3d 269 (D.C. Cir. 2005) ...... 9, 10

Farina v. Nokia, 625 F.3d 97, 122-126 (3rd Cir. 2010) ...... 9, 10

Fidelity Fed. Savs. & Loan Ass’n v. De la Cuesta, 458 U.S. 141 (1982) ...... 7

Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311 (2nd Cir. 2000) See attachment to October 25, 2013 letter to Whatcom County ...... 6, 7, 14, 15

Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424 (1963) ...... 7

In re Calvary Educational Broadcasting Network, 7 FCC Rcd 4037 n.3 (1992) ...... 4

In re Cingular Wireless L.L.C., 18 F.C.C.R. 13126 (July 7, 2003) ...... 6

KRPI Supplemental Project Narrative

In re Hanford Nuclear Reservation Litig., 534 F.3d 986 (2008) ...... 9

In re Tuck, 3 FCC Rcd. No. 18 (Aug. 24, 1988) ...... 10

In the Matter of 960 Radio, FCC 85-578 (1985) ...... 6

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ...... 7, 8

Jaffe v. RCI Corp., 119 A.D.2d 854, 856 (1986) ...... 21

Jasso v. Citizens Telecommunications Co. of California, Inc., 2007 WL 2221031 (E.D. Cal.) ...... 9

Kobar v. Novartis Corp., 378 F. Supp. 2d 1166 (D. Ariz. 2005) ...... 9

Koor Communication, Inc. v. City of Lebanon, 148 N.H. 618, 813 A.2d 418 (2002) ...... 22

Maranatha Mining, Inc. v. Pierce Cy., 59 Wn. App. 795 P.2d 985 (1990)...... 12

Murray v. Motorola, Inc., 982 A.2d 764 (D. Col. 2009) ...... 9

Nat’l Broad. Co. v. United States, 319 U.S. 190, 217 (1943)...... 7

Pease Hill Community Group v. County of Spokane, 62 Wn.App. 800 (1991) ...... 21

SEAPC v. Cammack II Orchards, 49 Wn. App. 609 P.2d 1101 (1987) ...... 19

Seattle SMSA Limited Partnership v. San Juan County, 88 F. Supp.2d 1128 (WD WA, 1997) ...... 12

Snohomish County Property Rights Alliance v. Snohomish County, 76 Wn. App. 44, 882 P.2d 807 (1994) ...... 19

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Syracuse Land Corp. v. Town of Clay, 112 A.D.2d 51 (1985) ...... 21, 22

Regulations

47 CFR §1.1306-1.1307 ...... 8

47 CFR §1.1310 ...... 6, 8, 10

47 CFR §73.24 ...... 15

47 CFR §73.33 ...... 8

47 CFR §73.44 ...... 8

47 CFR §73.51 ...... 8

47 CFR §73.88 ...... 4, 8, 14

47 CFR §73.189 ...... 22

47 CFR §73.190 ...... 22

47 CFR §73.318 ...... 4, 14

Federal Statutes

47 U.S.C. § 151 ...... 7

47 U.S.C. § 303 ...... 7

47 U.S.C. § 307 ...... 7

47 U.S.C. § 312 ...... 8

47 U.S.C. § 502,503 ...... 8

KRPI Supplemental Project Narrative

Whatcom County Code and Comprehensive Plan

WCC 2.33.060 ...... 19, 20

WCC 20.72.150 ...... 17

WCC 20.82 ...... 17, 20-22

WCC 20.84.220 ...... 11, 19

WCC 20.97.329.1 ...... 20

WCCP Ch. 2-119, 2-120, 2-128, 2-129 ...... 17, 21

WCCP Ch. 5 ...... 17, 21

Other Authorities

17 Wash. Prac. § 4.22 ...... 21

Commission Staff Clarifies FCC's Role Regarding Radio Frequency Interference Matters, 19 F.C.C.R. 11300 (June 24, 2004) ...... 6

Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62, 12 F.C.C.R. 13494 (August 25, 1997) ...... 8

Notice of Inquiry, ET Docket No. 13-84, 28 F.C.C.R. 3498 (March 27, 2013) ...... 8, 9, 10

In the Matter of FM Broadcast Station Blanketing Interference, 57 RR 2d 126 (1984) ...... 4

OET Bulletin No. 65 (August 1997) See attachment to October 1, 2013 letter to Whatcom County ...... 8