Update on the Towers Project in Point Roberts

Back in December of last year I posted a blog on a project that had been proposed for our little community, a plan to erect a large array of five AM broadcasting towers on a wooded lot near the border with Canada. At the time we were just beginning to grasp what lay ahead.

Ten months later we won — at least we won Round 1. In that earlier entry I outlined the Byzantine links between companies on both sides of the border, the involvement of the FCC and the CRTC (Canada’s equivalent agency), Industry Canada, Homeland Security and a passel of politicians on both sides of the border. The amusing part is that, despite all these arcane, twisted elements it all came down to the simplest of factors: local zoning codes that restrict the heights of structures.

The County Hearing Examiner determined that the tower array violated zoning regulations because the towers exceeded the limits on height and denied the permit.

Here’s the full story. It’s pretty interesting and describes in some detail what’s involved in the clash between a company with deep pockets and a small international community that barely even has a pocket.

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KRPI 1550 AM v. The Residents of the Point Roberts/Tsawwassen Peninsula 

or

A Users Manual on How to Build a Coalition to Take On Goliath

In July, 2013 residents of Point Roberts discovered that BBC Broadcasting (no relation to the UK “Beeb”) had been granted a permit from the FCC to relocate their broadcasting towers from Ferndale, WA to Point Roberts. We were surprised and dismayed by this as we had been in contact with a representative from BBC some years ago and were told that Point Roberts was only one of many locations they were considering and they didn’t anticipate moving here.

The project was truly Brobdingnagian. There was to be an array of five, 150’ tall towers sitting in a large, forested lot just one long block from the border. The plans called for a wide driveway, an on-site storage and control facility, clear cutting over half the lot and, because of wetlands to the west, the towers would be on the northeast side and clearly visible from the main road — a road that has been designated a scenic byway with views all the way to the San Juan islands.

We immediately began a grass-roots effort to block the project which, as we discovered rather quickly, was wholly unsuited for Point Roberts. KRPI’s programming was in Punjabi. The signal, the highest the FCC allowed (50,000 watts both day and night), was to be beamed at the South Asian community in Metro Vancouver and all material, content, news, editorial positions and corporate decision-making was under the control of Sher-E-Punjab (SheP), a Canadian broadcasting company with studios in Richmond, BC. All advertising was for Canadian companies and products and all revenue remained in Canada with SheP.

BBC Broadcasting turned out to be a classic “shell” company. They did no broadcasting and their only income was from leasing the tower array to SheP. The companies are owned by the same extended family with one branch in Canada and one in the US. Later in the sixteen month-long saga we discovered that the Canadian Radio-television Telecommunications Commission (CRTC) viewed this use of an American facility to broadcast into Canada a violation of their Broadcasting Act and began an investigation.

As we looked at the applications to the FCC and Whatcom County we were dumbstruck. Despite the target audience of KRPI, Canada seemed not to exist. The entire area to the north, including the residents of Tsawwassen, had been redacted. In the many maps and charts submitted Tsawwassen was a dull, brown swath of nothing, no roads, no buildings, no homes or businesses — though one map noted that the town of Ladner was 7.2 miles away and another stated that Vancouver was 20 miles distant.

It was clear what was going on. BBC had deliberately ignored the Canadian population because, had they acknowledged it, the FCC and Industry Canada would never have approved the project. The number of people who would be exposed to harmful blanketing interference was many times what either country would allow.

Blanketing interference is a broadcasting term for the compromised functions of electronic devices that occurs in the vicinity of radio broadcasting towers. A 50,000 watt signal can have devastating effects on radios, televisions, cordless phones, hi fi systems, baby and invalid patient monitors, indeed anything with a receiver or a speaker. It also affects dsl lines, slows down computer operations, disrupts emergency communications on walkie-talkies and interferes with HAM operations. The umbrella of interference would, we discovered, be large enough to include virtually all of the 23,000 residents, businesses, churches, schools and community centers in Tsawwassen as well as the 5th busiest crossing along the Canadian-American border. Clearly this wasn’t just a Point Roberts problem. It was international.

We also understood why BBC was trying to pull out of Ferndale. In the original application they noted that  KRPI had created a “poisoned well” there with over 1,100 formal complaints filed with the FCC over blanketing interference.

By now residents of Tsawwassen had realized what was happening. We had emailed friends in Canada who forwarded the messages about and a small group of Canadians, all of whom lived within a few blocks of the border, joined us at the next meeting in Point Roberts. In August of 2013 we dubbed ourselves the Cross-Border Coalition to Stop the Towers also known as FTT — which some said stood for “Fight The Towers,” others had a more colorful first word. It had a core of some ten individuals but as our efforts expanded and fund-raising became essential it grew to encompass about two dozen on both sides of the border.

Over time this group morphed into a remarkable organization. We used the existing Point Roberts Taxpayers Association as the “party of interest” to make the first filings and to handle contributions. We never had an official “board” or set of directors. Whoever was chairing the next meeting put together the agenda. We remained loosely organized but each of us brought some skill, some background, some level of understanding that was valuable. Outside of our regular meetings we generated a virtual blizzard of emails with some of us holding in excess of 6,000 messages and upwards of 300 official documents, filings, court cases and transcripts on our hard drives.

We found in ourselves abilities we didn’t even know were there. One of us discovered she was an archivist and became expert at digging through court records, the FCC website (a truly byzantine place) and tracking down earlier legal dealings that BBC and SheP had had in both the US and Canada. Others found that they were top-notch fund-raisers, adept at working door-to-door, giving talks at local clubs and organizations, staffing tables at shopping malls and organizing major events like fund-raising dinners and Town Halls on both sides of the border.

Still others emerged as natural leaders who could hold the group together, writers who could process huge amounts of information into coherent documents and web designers who understood social media and the impact of live demonstrations.

We realized we had engineers, lawyers, psychologists and managers in our midst. We carved up responsibility for tasks in ways that made sense and distributed the work load. We met regularly (often weekly). We tracked down consultants who could support our case: heron experts, bird migration scientists, broadcasting engineers, fish and wildlife officials, political figures in both Canada and the US and, critically, an expert legal team, one with extensive background in zoning and land-use regulations and experience working with the Whatcom County Hearing Examiner’s Office.

It’s impossible to emphasize this element enough. Some of us felt at the outset that, because we were right and noble and our cause was just, we would prevail. It quickly became clear that this perspective was, in a word, naive. We were facing an organization with far more resources than we had and which had retained top-drawer, well-connected legal counsel in Washington DC and Washington State. The senior partner in the firm BBC hired in DC was a former Director of the FCC. Locally, they were represented by a large and powerful firm with offices in nine cities in the US and abroad — they were dubbed the top communications law firm in the country in 2012.

The more we and our lawyers examined precedent the more we came to understand that decisions in cases like this are made on the basis of clear, defensible legal grounds. If you do not have a legal team that knows local zoning and land-use law, is sensitive to the complex links between county regulations and  the issue of preemption (that is, which set of guidelines, the Federal or the local, trumps the other) and understands the quasi-judicial nature of a County Hearing you are going to have problems.

Ultimately, the Hearing Examiner did, indeed, rule on zoning clauses in the Whatcom County Comprehensive Plan and the Point Roberts Sub-Area Plan. The key regulation was the one that limits the height of structures within Point Roberts to 25’ — with conditionalized exceptions allowing a maximum of 45’. BBC’s lawyers argued that radio stations are, by definition, “essential public utilities” and therefore eligible for a Condition Use Permit (CUP) independent of this zoning restriction. They also argued that the FCC approved the 150’ heights and that this Federal determination preempted any local restrictions. The Hearing Examiner did not agree on either point. He granted our pre-Hearing Motion to Deny the CUP and cancelled the five days of testimony that had been scheduled.

It was the local equivalent of finally nailing Al Capone for tax evasion.

So, how to deal with these kinds of situations? It’s not easy. You need a solid group of dedicated, devoted volunteers. They need to be smart, savvy, flexible and able to work with others. We also established strong contacts with local newspapers who reported on events, published letters and, in several cases, wrote strong editorials. Once the story got out it spread and articles appeared in the national press. Our website was important. It was updated regularly and donations could be made through it.

You’re going to need money, a lot of it. Between our efforts in Washington, DC (we filed a formal Petition to deny BBC’s license renewal — that case is still in process), our efforts in Whatcom County, our outreach to various politicians in Washington State and British Columbia and our retaining expert witnesses it has cost us around $140,000 and there are still outstanding bills that will run another $35,000 (the final accounting isn’t in yet — it could be higher).[1] It’s not easy to raise this kind of money. It takes devotion, time, arm-twisting, cajoling and diplomacy from every one of us. We held Town Halls and threw parties with silent auctions, 50-50 drawings and each of us opened up our own checkbooks — sometimes more than once.

The key to it all? Cooperation — in this case international cooperation. Friendships were formed that will last beyond all the possible appeals. And we found ourselves in some very odd situations where those bonds were essential. It’s not every day that an American citizen sits down with a Minister in the Canadian Cabinet to discuss strategy. It’s not every day that a duo of a Canadian and an American make carefully choreographed presentations to organizations on both sides of the border. It’s not every day that a member of a Canadian Council and a member of the British Columbia Legislature ask to present at a Whatcom County Hearing — just after that Cabinet Minister makes her Ottawa-approved statement.

It’s a bit amusing, looking back at the narrative that accompanied the original application. BBC’s legal counsel seemed to view Point Roberts as some quaint, rustic backwater whose residents would be pleased as punch to have a real radio station in their quiet wooded exclave. That is not what we are. We’ve been fighting to protect our forested, quiet, safe and, yes, funky, peninsula for a long time. And to the north was another community equally used to fighting for their quality of life. A natural bond was formed.

We are pragmatists. A bit of euphoria and a couple bottles of bubbly after the Hearing Examiner’s decision was followed by a reality check. We won Round 1 but the fight will go on. BBC has notified the County that they will appeal to County Council. If Council concurs with the Hearing Examiner’s ruling their next step will be Superior Court and, if BBC loses there, the State Supreme Court. In these proceedings the Coalition are bystanders. Our legal counsel will make presentations at each level but, basically, the county is now defending its decision and we are relieved of responsibility.

So … we wait. We wait for the county and state to rule on the application, for the FCC to decide on the license renewal and for the CRTC to determine the fate of Sher-E-Punjab in Canada. We’ll let you know what we know when we know it.

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[1] At this time we are short some $35,000 or $40,000 and still vigorously working on fund-raising. Donations are welcome and are tax-deductible. They can be made at http://notowers.webs.com/.