By Ahmad Hathout
Telecommunications carriers will face significant delays and barriers in deploying 5G technology if the CRTC is determined not to have jurisdiction over municipal structures on which small cells are attached, Rogers told the Supreme Court of Canada this month.
The nation’s highest court granted an application by Telus in December to hear its arguments challenging the Federal Court of Appeal’s determination that Parliament did not intend for “transmission line” to include wireless technology under the Telecommunications Act. The appeal stemmed from an April 2021 CRTC decision neglecting to regulate that space because the regulator said it did not believe it had domain.
“The regulation of Canada’s national telecommunications system will be arbitrarily fragmented between wireline and wireless network deployment, despite the fact that these network elements are interconnected and constitute a single, seamless system,” Rogers, a respondent in the case, said in its Telus-backing application.
Telus, which is also supported by Bell, argues that the wireless signals have to route back to the wires that are connected to the tower, anyway – illustrating that Parliament intended, when it enacted the legislation in 1993, to encompass the whole system.
“Telecommunications carriers will face the prospect of inconsistent approaches to the deployment of integrated wireline and wireless infrastructure and a gap in regulatory oversight,” Rogers added in its application.
The overarching argument is that the lower court erred by taking too narrow of an interpretation of the Telecommunications Act and failed to ensure its interpretation is technologically neutral.
“Parliament could not have intended to enact a regulatory regime governing the efficient construction, operation, and maintenance of telecommunications networks that is incapable of adapting to technological evolution by applying equally to both wireless and wireline networks,” Rogers said.
Rogers made a similar argument when the Supreme Court was still mulling over whether to hear Telus’s case.
Electricity Canada, which mounted an opposition to Telus’s appeal at the Supreme Court, said Parliament’s refusal to amend “transmission line” to include wireless means they intended for wireless and wireline to be separate under the legislation.
There has been some tension over the years between telecoms and municipalities when it comes to permitting, including the central problem of timeliness of that access.
On a separate but related matter, the CRTC last month said it believes it has jurisdiction over telco-owned or controlled structures for the purposes of small cell attachments when it launched a proceeding on the matter.
Bell has since pleaded with the regulator to defer to the Federal Court of Appeal about that authority; and, if not, then to hold a separate hearing on the jurisdiction question before wading into the other issues related to the proceeding.
