Date: June 18, 2014
To: The Cross-Border Coalition Against the Radio Towers
From: Ulf K Ottho
RE: Legal Opinion
You have asked me for my view as to the legal enforceability of a representation made by letter dated September 30, 2013 by KRPI's lawyers addressed to Whatcom County Planning and Development Services that:
“By this letter, KRPI wishes to express that it is committed to working at its own expense to resolve any and all complaints of interference that are brought to its attention, provided that the complainant allows adequate access for KRPI's engineers.”
“KRPI is committed to providing and maintaining interference complaint resolution services to members of the Point Roberts and Tsawwassen communities upon commencement of operation of its new transmitter in Point Roberts and continuing for the life of the transmitter site”.
I am giving my view from the perspective of being a retired lawyer having retirement status with the Law Society of British Columbia, following 35 years of practicing law in the Delta Community. My practice included, along with other areas of litigation, commercial contract litigation that involved interpreting contracts, as well as administrative law involving tribunals created by federal and provincial statutes, which involved the interpretation of statutes governing these tribunals.
A basic rule of contract law is that there must be “privity of contract”, meaning two or more parties must be party to the contract, for the contract to be enforceable by one of the parties in the event of breach. The above representations do not create privity of contract between any member of the community and BBC or KRPI.
Another basic rule of contract law is that there must be a mutual intention to create contractual relations. The subject letter is in the context of providing supplementary information to Whatcom County on KRPI's application to build a radio transmitter site, and refers to U.S. and Canadian regulations as governing resolutions of complaints. Clearly there is no mutual intent to create contractual relations between Whatcom County and KRPI.
Further, the language in the letter does not specifically bind KRPI to resolving the blanketing interference to the satisfaction of members of the community. Maintaining “complaint resolution services” and being “committed to working at its own expense to resolve any and all complaints of interference” are too vague to be enforceable in the case of breach of these representations and fall short of guaranteeing that blanket interference, or any other form of interference, shall be resolved.
Because the proposed transmitter site is not located in Canada, Industry Canada and the CRTC are without jurisdiction to enforce against any breaches resulting from KRPI's activities incurring in the USA, and I am at a loss as to why KRPI's lawyers even mentioned Industry Canada.
Although I never was a US Lawyer, I make the following observations about the U.S regulatory scheme:
Independent of Whatcom County's criteria for consideration on KRPI's application for a building permit, the only source of relief in the event of radio interference are U.S federal statutes, being the 1927 Radio Act, as overhauled by the 1996 Telecommunications Act, which statute, by its preamble, ”intended to regulate all forms of interstate and foreign radio transmissions and to maintain the control of the United States over all channels of interstate and foreign radio transmissions.” Under paragraph D of the preamble, the Secretary of Commerce has power to suspend the license of any operator for a period not exceeding two years upon proof that the licensee has violated any provision of any Act or treaty binding upon the United States. The Federal Communications Commission (FCC) was established in 1934 by the Communications Act.
Section 14 of the Radio Act states that “Any station license shall be revocable by the Commission (FCC) for false statements in the application...which would warrant the licensing authority refusing to grant a license on the original application...”
Pursuant to Section 309(e) of the Communications Act of 1934, as amended, informal objections must provide properly supported allegations of fact that, if true, would establish a substantial and material question of fact that grant of the application would be, prima facie, inconsistent with Section309(k) of the Act.
Mechanisms contained in the regulations governing procedure relative to the foregoing are that a Petition to deny must be filed within 30 days of the day that the FCC issues a Public Notice listing the application as “accepted for filing”. The Cross Border Coalition appears to have done so within these time constraints.
However regulation 47 CFR 73.3587 Procedure for Filing Informal Objections provides:
“Before FCC action on any application for an instrument of authorization, any person may file informal objections to the grant. Such objections may be submitted in letter form (without extra copies) and shall be signed. The limitation on pleadings and time for filing pleadings provided for in § 1.45 of the rules shall not be applicable to any objections duly filed under this section.”
The “FCC action” on the application for an instrument of authorization, namely, adjudication on the Petition filed by the Coalition, has not yet occurred: Therefore there is still time for “a person” to file an informal notice of objection.
Regarding blanketing interference, 47 CFR SS 73.88, 7318 states:
“The licensee of each broadcast station is required to satisfy all reasonable complaints of blanketing interference within the 1 V/m contour.”
For more detailed instructions concerning operational responsibilities of licensees and permittees under this section, see § 73.318 (b), (c) and (d).”
Industry Canada regulation C-10.4 on Resolving Issues provides similar responsibilities.
In my view, “any person” as used in 47 CFR 73.3587 has no restriction, and would include a person residing in Canada, a Mayor of a Corporation (Lois Jackson) or a Cabinet Minister (James Moore of Industry Canada, or Minister or Foreign Affairs John Baird).
One Final Comment: There is no doubt that that the threat of blanketing interference is real, and can interfere with cell phones, computer monitors and hook-ups to the Internet, radio transmissions, hearing aids, pagers, etc to the extent that businesses relying on the Internet, cell phones, etc, are affected. There is a documented and continuous 15 year history in Ferndale, Washington of complaints by residents, which complaints are supported by elected representatives. The president of BBC broadcasting acknowledged a blanketing interference problem in a sworn affidavit filed in the FCC proceedings in February, 2014.
Ulf K Ottho
Ulf Ohtto is a Delta resident and retired lawyer having retirement status with the Law Society of British Columbia, following 35 years of practicing law in the Delta Community. He is a member of the Tsawwassen Coalition to stop the Radio Towers. He presented his legal opinion to the Delta Council on June 23rd 2014.
Dear Honourable Kerry-Lynn Findlay and Honourable James Moore,
Recent articles and letters from the US department of the Interior below provide insight into the potential deleterious impact of the proposed 50,000 watt KRPI radio towers at the US border on avian mortality along the Pacific Migratory Flyway through Tsawwassen and Point Roberts.
The people of Tsawwassen need your support to Stop This Border Blaster.
Jim Ronback, P.Eng. (retired)
Avian mortality at communication towers in the United States and Canada: which species, how many, and where? Biological Conservation 158: 410-419.
Longcore, T., C. Rich, P. Mineau, B. MacDonald, D.G. Bert, L.M. Sullivan, E. Mutrie, S.A. Gauthreaux, Jr., M.L. Avery, R.C. Crawford, A.M. Manville, II, E.R. Travis, and D. Drake. 2013.
Dept. of Interior Attacks FCC regarding Adverse Impact of Cell Tower Radiation on Wildlife. The Department of Interior charges that the FCC standards for cell phone radiation are outmoded and no longer applicable as they do not adequately protect wildlife.
SUMMARY: The First Responder Network Authority (FirstNet) publishes this notice to request public comments on its proposed procedures for implementing the National Environmental Policy Act (NEPA). These proposed NEPA implementing procedures are necessary to assist FirstNet in establishing an NEPA compliance program and applying the appropriate level of NEPA review for activities undertaken by FirstNet in the design, construction and operation of the nationwide interoperable public safety
broadband network (PSBN). DATES: Comments on the proposed procedures must be received by February 7, 2014.
Tell the FCC to reject the Pirate "Border Blaster" in Washington State
Arthur Reber submitted the IO to the
Federal Communications Commission (FCC)
and to the attorney of the company
that owns the radio station.
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Informal Objection of the Cross-Border Coalition
to be submitted to our
Washington DC attorneys and eventually to the
Federal Communication Commission
click here to read
Letter from our group's leadership
November 4, 2013
Planning and Development Services
Re: Correspondence from Ms. Linda White Atkins of Davis Wright Tremaine, LLP
We know you’re still working on the report for CUP2013-00004-KRPI Transmitter Site but we (the members of the Cross-Border Coalition) feel that we need to respond to the letter from Ms. Atkins of Davis Wright Tremaine, LLP, the firm representing BBC Broadcasting, Inc.
The letter is remarkable on several fronts. First, it acknowledges what no other document submitted by BBC Broadcasting has: the existence of the city of Tsawwassen, British Columbia, Canada and its approximately 24,000 residents (estimate based on growth since the 21,000 plus recorded in the 2006 census).
Second, it makes abundantly clear that by not previously mentioning this population center, BBC did not act in good faith in its initial application to the FCC nor to Whatcom County’s PDS. By extension, this omission allowed them to remain under the radar when it came to the FCC seeking clearance with Industry Canada (IC). So long as Tsawwassen and its high-population density parameters were suppressed, there was no reason for IC to object – and object they would have as is outlined below.
Third, the letter also acknowledges what we have known all along: there will be significant blanketing interference that will affect the thousands of residents and businesses across the border and not just the 300 or so identified in the original applications.
Fourth, the issue of enforcement is not broached. Ms. Atkins’ letter is a promissory note but one with no legal mechanism to back it up. The company can promise all it wants in order to secure the permit but once the towers are up they are under no legal obligation to carry through. This point is important. The FCC only requires that mitigation be carried out according to their guidelines in the US. There are no official mechanisms in place for cross-border complaints.
Fifth, independent of Ms. Atkins’ word that BBC Broadcasting will work to mitigate all complaints from Tsawwassen (and to do so even after the 1-year period has expired), it is virtually certain that they will not be able to. The reason is obvious – and it is precisely the reason why both the FCC and Industry Canada impose constraints on the proportion of a region’s population that lies within the 1 V/m contour (in the US) and the 250 mV/m contour (in Canada).
Because the towers are planned to be sited at a location that the neither the FCC nor Industry Canada would permit if all the facts were known, the proportion of the population of Tsawwassen that will be impacted by the interference is so large that even partial mitigation will be virtually impossible.
According to the letter from Ms. Atkins, KRPI has on call a single engineer who apparently lives in or near Ferndale. This person, one David Harris, presumably has a visa to work in Canada and has the ability to travel to Tsawwassen on a regular basis – and we say “regular” because the number of individual homes and business that lie within the 250 mV/m contour of the nighttime 50kW signal is the entire city of Tsawwassen and some of the surrounds. Hence, the population that would potentially suffer blanketing interference is approximately 24,000 individuals. To get a feeling for what’s involved here, let’s do a little counting.
Let’s assume that there are only some 15,000 individual homes, apartments, condos and business offices involved. Let’s also give them the benefit of the doubt and estimate that only about 15% of them will experience blanketing interference (this is based on the proportion of residents in Ferndale who filed complaints relative to the population there). This gives a minimum of 2,250 cases that will need mitigation. If Mr. Harris, who will be travelling up from Ferndale, is able to fix three instances a day it will take him at least 3 years to complete the job – assuming he has no other duties to perform for the company and that he can actually do three a day. It’s worth keeping mind that in Ferndale many complaints turned out to require more than one attempt and many ended up unmitigated.
In short, the promise to mitigate the anticipated blanketing interference that will hit Tsawwassenites is an empty one. There is no way they will be able to do this – and this estimate is on the “soft” side. There are reasons for expecting a significantly higher proportion of complaints in Tsawwassen than there were in Ferndale. The towers there are in a field some distance from population centers. The planned Point Roberts array will be within 950 feet of the border – across which is the most densely populated area of Tsawwassen. And, as noted in an earlier comment we submitted, within the community of radio aficionados AM stations that broadcast at 50 kW at night are called “blowtorches.” Wide-spread blanketing interference is the reason.
There was one other comment in Ms. Atkins letter that is almost embarrassingly self-serving. She notes that the company includes two documents (one a handbook) on how to mitigate blanketing interference. This handbook is simply the one the FCC uses as standard operating procedure. It is, in case you or anyone in your office hasn’t looked at it, virtually impossible to follow or use by anyone who doesn’t have a background in science and is comfortable with electrical work. Very few individuals without such experience will be able to carry out the complex and intricate procedures involved in shielding and filtering the unwanted signals. We can’t help wondering why Ms. Atkins mentioned these documents when the purpose of the letter was to ensure all concerned that BBC Broadcasting would mitigate all complaints and continue to do so even after the mandatory 1-year period.
We can sum up this analysis simply.
•If the population of Tsawwassen had been included in the original application to the FCC to relocate the tower array to Point Roberts, they would not have approved it.
•If the towers were to be sited a mere 950 feet to the north across the border, IC would never approve the project.
•As soon as the actual population density parameters are put into the equation (independent of the border) the project is immediately seen as wholly inappropriate and in violation of standard principles of the operation of AM radio stations in both the United States and Canada.
The Cross-Border Coalition:
Point Roberts -Arthur Reber, Mark Robbins, Jennifer Urquhart, Suzanne Rosser, Steve Wolff, Renee Coe
Tsawwassen - Nancy Beaton, Steve Graham, James Ronback
Reasons why the towers should not be built
The proposed radio tower site is not consistent with the Point Roberts Character Plan and is only 330 meters (1,080 feet) from the border.
On both sides of the border property values around towers can drop 20%.
Five 150' towers blasting 50,000 watts during the day and 50,000 watts proposed at night would present a visual blight and a hazard to migratory birds along the Pacific Flyway. Aircraft warning lights mounted on top the towers could be seen by residents on both sides of the border.
There are over a thousand US neighbors and several thousands of Canadians within a radius of 9,140' (2.786 km) - the radiation beam of the antennas directed towards Canadian listeners in Surrey, BC.
BBC Broadcasting Inc, has owned the KPRI AM broadcasting towers in Ferndale, WA, for 15 years. BBC Broadcasting Inc. is a registered American corporation. But the KRPI studio, 99% of the corporate officers & employees, the target audience, advertisers, and revenue are all in Canada.
The FCC denied KRPI's request to raise their nighttime wattages from 10,000 to 50,000 watts. KRPI is now trying to relocate to Point Roberts.
Why have a radio tower in Washington State? Cheaper land and less onerous regulations than in Canada.
Mark Robbins of Point Roberts stated:
"Americans on our peninsula were given scant public notice: KRPI Radio and its owner BBC Broadcasting Inc ran the minimal one-inch ad in the Bellingham Herald, which isn't sold in Point Roberts."
"The FCC's notification to the good people of Point Roberts was published much earlier in the Federal Register, which of course no normal person follows. It's a source for insiders."
"South Deltans, who will be severely affected if this move is made, were given no notice at all, so we have many questions and several concerns."
A multitude of potential health risks like insomnia, headaches, and hypertension have been reported worldwide. Cancer clusters have been reported around long-operating European AM radio stations. Some people's health will be more affected than others.
The International Agency for Research on Cancer (IARC) in 2011 declared that Electromagentic Energy shall be classified as Class 2B Carcinogen akin to the now infamous Benzene chemical. IARC is a subgroup of the World Health Organization.
A cell phone is a 1/2 watt device you use 30 minutes per day. The proposed AM Transmitter is designed to be a 50,000 watt system that everyone is exposed to 24 hours a day, 7 days a week, 365 days a year.
Click to read an article in the American Journal of Epidemiology Radio-Frequency Radiation Exposure from AM Radio Transmitters and Childhood Leukemia and Brain Cancer "
In Ferndale blanketing interference caused problems with radios, televisions, DSL connections, landline reception, Ham radio transmission, First Responder hand-held equipment, personal safety / medical devices, and public address systems. Some people experienced shocks and burns when working with metal.
KRPI engineers "overlooked" 21,000 Tsawwassen residents - probably so they could give short shrift to Point Roberts' 1,300 American residents in a falsely-described "low density, rural, economically depressed" area.
The Point Roberts Conservation Society is behind the Stop the Radio Towers email list. PRCS is assisting in the NoTower.com website project.
The Point Roberts Conservation Society is a nonprofit foundation, registered in 1993. We are committed to providing education on responsible land use, indigenous history, protection and sustenance of our unique environment of forest, wetlands, and coastline.
We welcome new members: email@example.com
What you can do
Please email, write, or phone the people / agencies listed below.
See the Topics subpage for points you can make in your communications. Please write or phone today!
Join the Stop the Radio Towers email list for latest news by sending an email request to Suzanne Rosser:
Congresswoman Suzan Delbene
Contact form at
Phone (202) 225-6311
Senator Maria Cantwell
Contact form at
Phone (425) 303-0114
Senator Patty Murray
Contact form at
Phone (425) 259-6515
Kerry-Lynne Findlay Q.C.
MP Delta-Richmond East
House of Commons
Ottawa, ON K1A 0A6
Vickie Huntington, MLA, Delta South
4805 Delta Street, Delta, BC
Lois E Jackson, Mayor of Delta
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Write to the Honourable James Moore, Minister Industry Canada firstname.lastname@example.org
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