Point Roberts vs. the FCC:  Modern David and Goliath

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Wed, Oct 22, 2014, 2:44 pm  //  John Lesow

John Lesow, a NWCitizen writer, wrote this on behalf of the Cross Border Coalition in Point Roberts and the Tsawwassen area of Delta, BC, Canada.  

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Update, Oct 22 - John Lesow has commented with considerable more information on this.  See the first comment below.  

Update 2 pm Oct 21 - by publisher John Servais

County Hearing Examiner Michael Bobbink has denied the application by KRPI to build five radio towers on Point Roberts.  David has knocked down Goliath.  See John Lesow's article below for an explanation of this important issue of our remote Whatcom County neighbors.  

Bobbink ruled today that the towers exceed height limits on Point Roberts.  The public hearing at the County Council chamber scheduled for next Monday, Oct 27, is cancelled.  The next probable step will be an appeal by the radio station.  

Click to read Bobbink's memo as a pdf 

We will post more information is this issue as it becomes available.  

Finally, I want to note this is not all good news.  KRPI will probably now go back to broadcasting from their 5 existing towers right next to Ferndale - the ones that the Point Roberts towers were going to replace.  And a sister radion station has several towers right next to Blaine that also broadcast into Canada.  All three towers are basically pirate radio stations, unlicensed in Canada and thus putting up towers in Whatcom County to broadcast into Canada.  All three are powered to 50,000 watts, causing toasters, radiators and other electrical and metal items in nearby homes to broadcast music.  So, this appears to throw the problem back to Ferndale where residents have complained for years of the interference.  The Federal Communications Commission (FCC), the federal regulating agency, has shown an all too typical federal arrogance and dismissal of these citizen concerns, allowing the illegal radio stations to greatly disrupt the lives of county residents.  

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See end of this article for an update on Oct 11.

A year ago,  the citizens of Point Roberts woke up to the news that the Federal Communications Commission (FCC)  had granted radio station 1550AM/KRPI permission to move their broadcasting facilities  from Ferndale to Point Roberts.

A total of (5) 150’ towers were planned for a heavily forested, 10 acre site just a few hundred feet from the US/Canadian border.  The towers would broadcast at the maximum allowable 50,000 watts and would beam their signal directly north, broadcasting South Asian programming to their target market in the Lower Mainland of British Columbia and the Fraser Valley.

One reason for the move from Ferndale to Point Roberts was the station’s admission that their broadcasting over the past decade had resulted in intolerable levels of blanketing interference for Ferndale residents, amounting to an admitted  “poisoning the well” of their host community.

In the application, Point Roberts was characterized as a rural backwater with few residents and a community that would benefit from the economic boost of a powerful new radio station.   In fact, a station broadcasting at 100 watts would be sufficient to reach every corner of the 4.8 square mile peninsula of Point Roberts.

Conveniently omitted from the application was the presence of Tsawwassen, BC, a community of 23,000 situated just a few hundred feet north of the international border.  A map submitted with the application depicted the 23,000 resident community of Tsawwassen as a large, unpopulated blank space.  Given the true proximity of the population of Point Roberts and neighboring Tsawwassen,  the transmission of 50,000 watts would have exceeded the FCC’s parameters by some 3000%, or 30 times what is permissible by federal guidelines.

One could argue that this constitited a fraudulent application to the FCC, but, as is typical  with many out-of-touch government bureaucracies, it slipped by unnoticed and unchallenged.  The result was a federal decision in favor of a foreign-controlled commercial enterprise based on misinformation, impacting thousands of of Americans and Canadians in ways that would never be acceptable if the real facts had been provided.   To keep the 50,000 watt broadcast strength in perspective,  Bellingham’s KGMI 790 broadcasts at 5000 watts.

Last week, the Whatcom County Planning Department recommended approval of the Conditional Use Application to proceed with construction , based in part on the interpretation that radio towers are an “essential public utility” and therefore allowable by Conditional use permit in all jurisdictions.   This characterization allowed the applicant to avoid both Whatcom County and Point Roberts height restrictions, as well as other County Code guidelines on rural character and view corridors.

Over the past year, a group of concerned U.S. and Canadian citizens, joined by civic groups in Point Roberts, have united as the Cross Border Coalition to Stop the Radio Towers.  Last July, the FCC was asked for a Declaratory Ruling that the height restriction for structures in Point Roberts (45 feet) would not be pre-empted.  To date, there has been no response from the FCC.  At present, a Text Amendment to amend the Point Roberts Special District zoning  to limit radio tower heights is in abeyance, pending the outcome of the FCC ruling.  In any case, the present approval of the towers would not be affected by a prospective zoning text amendment.

Based on the empirical evidence from Ferndale over the past decade, there is no way to effectively mitigate the blanketing interference on all manner of electrical and conductive devices from a 50,000 watt radio transmission.   These include interference with land line and wireless phones, computer connections, baby monitors, cellular phones and virtually any electronic device that has a speaker.  The Ferndale signals have even been documented coming from non-communicative devices, including water heaters and radiators.

There is little research on the health effects of Electromagnetic Radiofrequency Radiation (EFR).  This is primarily due to the fact that AM radio towers are never permitted in such close proximity to urbanized areas, as is the case here.  However, scientists have begun to call for more stringent standards relating to the siting of radio towers near populated areas.

After concerted efforts at the federal and local levels in the United States and Canada, what is left for the Coalition is to try to stop the issuance of a conditional use permit at the county level.  A hearing is set to begin October 27, 2014 before the Whatcom County Hearing Examiner at Council Chambers, 311 Grand Avenue.

The Coalition is fighting to preserve the quality of life on the peninsula and must now raise money to continue to fund representation before the hearing judge.  They have raised over $70,000 in grass roots contributions.  But the Coalition requires another $50,000 to field expert witnesses and to continue to fund our local legal team.

This is truly a David vs. Goliath struggle and a cause worth fighting for.  We are committed to carry this fight through the Hearings Examiner phase and then on to the Whatcom County Council.

Grass roots fund-raising is now being augmented by social media efforts and an outreach to outside donors.

For more information and to donate, visit: www.notowers.webs.

Update:  Saturday, Oct 11 - by publisher John Servais

The Vancouver Sun has an article today that explains more about this issue and how these radio stations are "pirate radio" as they have their offices and studios in the greater Vancouver area but are not licensed to have broadcast towers in Canada.  And thus use Whatcom County for their broadcasts.   See "CRTC orders Punjabi radio stations in Metro Vancouver to explain themselves".  

John Lesow  //  Wed, Oct 22, 2014, 2:41 pm

A follow-up to yesterday’s memorandum from Hearings Examiner Michael Bobbink, which stated in part:

“I am going to grant the Motion to Deny the Application (from the Cross Border Coalition) on the basis that the height requirements of the Point Roberts Special District apply to this Application; that the Application cannot functionally meet these requirements; and that the requested Zoning Conditional Use Permit Application to allow BBC Broadcasting, Inc. to construct and operate a five antenna array of AM Radio broadcast towers of approximately 145-feet to 150-feet in height, at 1563 McKenzie Way, Point Roberts, Washington, must be denied”.

The attorney for BBC Broadcasting has indicated her client will appeal the Hearing Examiner’s decision to Whatcom County Council.

Procedurally, this case underscores the importance of WCC 20.92, which provides, “The applicant, any party of record, or any county department may appeal any final decision of the Hearing Examiner to the County Council”

The cost of the appeal is $300.  This is a land use decision where the Council will act in a judicial capacity. 

The Coalition has spent over $75,000 on legal and professional fees to bring this matter before the Hearing Examiner.  These funds have been raised exclusively from citizen contributions on both sides of the border.  Had this matter gone before the Hearing Examiner at the end of the month as scheduled, those costs would have sharply escalated after a week of legal representation and expert testimony.  It is difficult for a group of private citizens to launch a legal action of this magnitude against a multi million dollar enterprise like BBC and their legions of Seattle and Washington, D.C. attorneys.

The Coalition’s attorney, Robert Carmichael, did an exemplary job of representing our position to the Hearing Examiner.  Special thanks to Mr. Carmichael and his associate, Simi Jain.

Where do we go from here?  Well, we can hope that County Council will support the decision of their Hearing Examiner. The collective wisdom of our (7) elected Councilmembers is our best hope.  Certainly better than heading directly to Superior Court and the prospect of insurmountable legal expenses.

There is another proposal regarding future tower construction presently before Planning and Development Services.  It will not affect the present BBC proposal, but it deserves mention. 

In December, 2013, Armene Belless and myself submitted a Comp Plan and Text Amendment to Whatcom County Planning and Development Services. In it’s present form, our Amendment would limit the height of radio antennas in Point Roberts to 45’

In July, 2014, we filed a Request for a Declaratory Ruling with the Federal Communications Commission, asking for a ruling “as to whether the Commission would pre-empt the legislative efforts of our local jurisdiction in adopting modifications to the zoning ordinance for the Point Roberts Special District restricting the construction of new broadcast towers to 45’ in height”.

This was done to ensure that the interests of Whatcom County would not be unduly jeopardized by an adverse ruling on height pre-emption by the federal government after passage of our Amendment. 

To date, we have not received a formal ruling from the FCC, but experience shows that it is not unusual for the FCC to take up to a year to issue a declaratory judgement.  Given the pace of permitting and planned construction of the Point Roberts towers, we did not have time on our side.

Mr. Bobbink’s decision is timely and important.  We hope that Council’s decision is likewise expedient and confirms the Hearing Examiner.  My co-sponsor and I are determined to continue our efforts to get this Amendment passed and incorporated into the Whatcom County Comprehensive Plan and Zoning Text by year end.

Special thanks to John Servais for providing a platform for extended commentary on an issue that is very local, but a very important one for the citizens of Point Roberts and Tsawwassen, British Columbia.

John Lesow


Point Roberts vs. the FCC:  Modern David and Goliath

Wed, Oct 22, 2014, 2:44 pm  //  John Lesow

Update Oct 22: John Lesow has posted a comment with considerable more information on this issue.

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