Building a Coalition to Take on Goliath

Arthur S. Reber, Ph.D., is a resident of Point Roberts, Chair of the Point Roberts Community Advisory Committee, and core member of the Cross-Border Coalition to Stop the Towers. A retired professor of cognitive psychology, he is the author of numerous books and hundreds of articles, papers, and book chapters in his academic field as well as his avocation – poker. Details are at www.ArthurReber.com.

In July, 2013 residents of Point Roberts discovered that BBC Broadcasting (of Kent, WA and no relation to the UK “Beeb”) had received permission from the Federal Communication Commission (FCC) to relocate their broadcasting towers from Ferndale to Point Roberts and had applied to the county’s Planning and Development Services (PDS) for a Conditional Use Permit (CUP) to build the towers.

This surprised us. We had been in contact with a BBC representative in 2010 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, an array of five, 150-foot tall towers sitting on a forested lot just one block from the border. The plans called for a wide driveway, a storage and control facility and clear cutting over half the lot. Sightline analyses suggested that the towers would visible from Tyee Road — which has been designated a scenic byway with views all the way to the San Juan Islands.

All broadcasting was to be done at 50,000 watts, the most powerful signal the FCC allows. KRPI’s programming is in Punjabi, and its target audience is the South Asian community in Metro Vancouver. But, as we quickly discovered, BBC had never broadcast anything. All content, news, programming and corporate decision-making was controlled by Sher-E-Punjab (SheP), a Canadian company with studios in Richmond, BC. All advertising on KRPI was for Canadian companies and products and all revenue remained in Canada.

In short, BBC Broadcasting looks like a classic “shell” company. They hold the FCC license but, having no facilities for programming, lease the towers to SheP — a company with no license to broadcast in either the U.S. or Canada. But the two are far from independent. The companies share board members and stockholders.

Despite the target audience of KRPI, in the applications to the FCC and PDS 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, with 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.

Had BBC acknowledged our neighbors just north of the border, the FCC and Industry Canada might never have approved the project. The number of people who would be exposed to blanketing interference was many times what either country has typically allowed.

Blanketing interference is a broadcasting term for the compromised functioning 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 monitors, or anything else 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 from these towers would be large enough to include virtually all of the 23,000 residents, businesses, churches, schools and community centers in Point Roberts and Tsawwassen as well as Customs and Border Protection communications at the fifth busiest crossing along the Canadian-American border — as Congresswoman Suzan DelBene noted in an Oct. 14 letter.

Clearly this wasn’t just a Point Roberts problem. It was international.

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

We emailed friends in Tsawwassen and a small group of Canadians joined us at the next meeting. In August of 2013 we formed the Cross-Border Coalition to Stop the Towers also known as FTT — which some said stood for “Fight The Towers,” though 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 about two dozen.

Over time this group morphed into a remarkable organization. We used the Point Roberts Taxpayers Association as the “party of interest” to make the first legal filings and to handle contributions. We never had an official “board” or set of directors. 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 discovered we had hidden talents. One of us turned out to be an archivist and became expert at digging through the FCC website (a truly Byzantine place) and tracking down earlier legal dealings that BBC and SheP had had in both the U.S. 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 parties and Town Halls. Others emerged as natural leaders, as 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, which often meant weekly.

We tracked down consultants: heron experts, bird migration scientists, broadcasting engineers, fish and wildlife officials and political figures in both Canada and the U.S.. We 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 in both the U.S. and Canada. Our website — http://notowers.webs.com — was important. We update it regularly and donations can be made directly online.

We also, critically, engaged expert legal teams. It’s impossible to emphasize this element enough. Some felt that we’d win because we were right and our cause was just. It quickly became clear that this perspective was, in a word, naive. We were facing an organization with deep pockets and well-connected legal counsel. Their DC firm is Wiley Rein, and Richard Wiley was a former Director of the FCC. Locally, they are represented by David Wright Tremaine, a firm with over 500 lawyers and offices in nine cities in the U.S. and abroad.

We retained Venable, a DC firm specializing in communications law. Through them, we filed a Petition to Deny the renewal of BBC’s license to operate KRPI. Locally, we engaged Bob Carmichael of Carmichael Clark (formerly Zender Thurston), a specialist in zoning and land-use law and knowledgeable in 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). The costs of legal counsel, expert witness fees and lobbying expenses has surpassed $175,000. With the pending status of license and permit challenges in D.C. and locally it will increase. As of this date there are some $25,000 in legal fees that we do not have the funds to cover.

The Work Paid Off

Ultimately, Michael Bobbink, the Whatcom County Hearing Examiner (HE) 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 feet — with conditionalized exceptions allowing a maximum of 45 feet.

BBC’s lawyers had argued that: (a) radio stations are “essential public utilities” and eligible for a Conditional Use Permit independent of zoning restrictions and, (b) the FCC approval of the tower-height preempts local restrictions. The HE 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.

But we are pragmatists. A bit of euphoria and a couple bottles of bubbly after Bobbink’s decision was followed by a reality check. We won Round One but this one’s a twelve-rounder.

BBC filed an appeal with Whatcom County Council on December 3. Carmichael filed a rebuttal on the 17th. Council will review these documents along with Bobbink’s Findings of Fact and Conclusions of Law in a closed executive session, acting in a quasi-judicial capacity. Their decision may be based only on the record received from the HE (WCC 20.92.660), so letters from the public will not be considered. Council may approve or deny the HE’s conclusion, or remand for additional findings. The council may only overturn the HE’s opinion if it is wrong on “the law” or clearly erroneous (WCC 20.92.810). The council’s decision may, itself, be appealed to Superior Court. The council is expected to cast their votes at the regular meeting on January 13.

The matter of BBC’s license renewal is still pending. It should be heard sometime in early 2015. Our petition was based on: (a) the fact that BBC was controlled by SheP violated the FCC’s “alien ownership and control” provisions and, (b) the deceptive representations in omitting the Tsawwassen population violated ethical standards expected of U.S. broadcasters.

There are still other elements to this case. Even if BBC loses its appeals and is denied the CUP, they could continue to broadcast from Ferndale. Even if the FCC revokes their license to operate KRPI they could sell the towers to another broadcaster. And then there is the Canadian Radio-television Telecommunications Commission (CRTC). Earlier this year the CRTC called on Sher-E-Punjab (and two other so-called “pirate” stations) to cease and desist. By using an American facility to broadcast into Canada without a license and without conforming to Canadian broadcast regulations they were in violation of the Canadian Broadcasting Act. In November SheP signed a consent decree and agreed to sever all involvement with BBC.

Intriguingly, KRPI is still on the air, still in Punjabi and with the same on-air personnel and the same Canadian advertisers. No one seems to know, at this juncture, who is preparing the programming or where their studios are or what the implications are for the CRTC.

In retrospect, this experience resulted in some very odd situations involving cross-border bedfellows. The key to it all? Cooperation — in this case international cooperation. It’s not every day that an American 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 Legislative Assembly formally request the right to speak 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 team 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 battling for their quality of life. A natural bond was formed.

At this point in time there is nothing to do but wait. Wait for council to rule on BBC’s appeal, for the FCC to decide on the license renewal and for the CRTC to deal with the continued presence of KRPI. We’ll let you know what we know when we know it.

We have announced a $500 challenge. If another 100 or so individuals and businesses donate, we can cover expenses.