By Ahmad Hathout
EDMONTON – A Calgary bylaw that sought to regulate the relationship between private entities and the city for access to municipal rights-of-way is not binding on telecom companies, the Alberta Court of Appeal said Thursday.
The highest court in the province upheld, 2-1, a lower court’s determination that the terms of the bylaw be amended to remove “telecommunications services” from the definition of “utility provider” because telecommunications is the jurisdiction of the federal government. The bylaw forced entities to get – in some cases multiple – permits to construct within rights-of-way.
The bylaw effectively gave the city the power to determine builds and maintenance for the federally-regulated telecom companies and stood in lieu of the CRTC’s non-binding standard guideline for rights-of-way access, known as the municipal access agreement (MAA). While the city bylaw is similar to the MAA in that it lays out the terms and conditions for municipal consent for a telecom build on a right-of-way, the latter is a voluntary agreement that does not require a permit for routine work, instead relying simply on notifying the city.
The city, the decision said, sought to present a bylaw that replaced the MAA but was wholesomely conforming with the Telecommunications Act. The appeal judges, however, reasoned the bylaw was attempting to regulate beyond what that federal law allows, which limits required consent to builds “on, over, under or along public places” but doesn’t require consent for maintaining and operating existing transmission lines, as the bylaw sought to do and more under its more nuanced oversight.
Barring an appeal to the Supreme Court of Canada, the decision ends a long saga between the city and the telecom companies on the bylaw question. Since the last agreement ended in 2014, Calgary and the network operators were at a deadlock with respect to negotiations on access to municipal rights-of-way after multiple attempts at the CRTC’s urging. In 2016, the city enacted the bylaw, which came into force at the beginning of 2018.
Bell, Rogers, Shaw and Telus asked Alberta’s Court of Queen’s Bench to strike the bylaw only in its application to the telecoms, citing federal jurisdiction over the “planning, constructing, management, location, use and upkeep of telecommunications networks,” which it did in late 2018. The lower court also made a number of related findings in the case, including the city’s desire to secure space for its own fibre network.
In January 2019, Calgary suffered another blow when the CRTC denied its request to allow the bylaw to stand as the primary vehicle to drive negotiations for access because the telecoms did not agree to them anyway.
The telecoms have been trying to hash out rights-of-way access in other municipalities, with similar hiccups along the way. In 2017, a Quebec judge ruled in favour of Videotron, Rogers, Telus, Bell and Cogeco by denying the validity of bylaws in Gatineau and Terrebonne that similarly bound telecoms to build requirements that they contested. The telecoms had also disputed terms of an MAA with Hamilton.
In March, Shaw filed a new lobby registration with Ontario which outlined its intention to ask the province to make mandatory municipalities’ co-operation with telecoms to allow access their infrastructure quickly for network builds.
The issues are in-line with the telecoms’ years-long crusade to get a federal body to streamline access to municipal infrastructure, especially in light of the development of next generation 5G technology. Access to rights of ways significantly delay the rollout of wired and wireless networks. The telecoms repeatedly brought their pleadings to the government-appointed panel that studied and released its recommendations on reforming the country’s communications laws.
Whether Calgary will challenge the decision is still unknown. The dissenting opinion in the decision determined – when the constitutional questions are asked in the right order – the bylaw and the Telecommunications Act “complement each other and work in harmony” when it comes to telecom access to municipal infrastructure.
