Company challenges CRTC on decision not to indulge passive infrastructure debate; seamless roaming
By Ahmad Hathout
OTTAWA – When the CRTC asked for comments for its review of the wireless industry—with eyes trained on whether it would force negotiations on access to big wireless networks—a parallel issue emerged in the submissions: How will the regulator deal with the emerging friction between cellcos and local officials when it comes to equipment attachments on municipal infrastructure?
Apparently, not at all. Mid last month, in its decision to force the big three carriers to lease wireless network capacity to regional carriers, the Regulator said it did not have jurisdiction on the matter, citing the domain of the municipalities. The telecoms have faced some resistance from municipalities — including Calgary, Gatineau, Terrebonne, and Hamilton – about that kind of access, which the companies have charged is delaying and will further delay the roll-out of 5G.
The CRTC’s response was not good enough for Telus, which filed on Friday an appeal in Federal Court challenging the Commission’s decision to treat the issue like a hot grenade by claiming radio tower attachments are under the domain of the Radiocommunications Act, which is administered by Innovation Canada. The Regulator’s analysis hinged on its interpretation of “transmission line,” which it said could only mean physical cable lines – not wireless transmissions.
Not so, the Vancouver-based company alleges: By narrowly reading Section 43 of the Telecommunications Act “to exclude newer technologies, and declining jurisdiction over access for their deployment, the CRTC has created a lacuna in the federal regulatory scheme that is inconsistent with the modern approach to statutory interpretation, and will delay 5G services for Canadians,” Telus said in its application, from which the Federal Court must decide if it wants to take on the case.
Furthermore, Telus claims the Telecommunications Act gives the Regulator the ability to make decisions on wireless facilities – not just wireline infrastructure, which is explicitly outlined in the law – because the Act was always intended to be technology neutral, and by virtue of the fact wireless facilities have to route back to wireline infrastructure, prominently using fibre backbone.
The CRTC argued when it came time to write the communications laws, Parliament was aware of the distinction between “transmission line” and “transmission facility,” the latter which more broadly covers wireless infrastructure. The Regulator reasoned that if Parliament wanted to include wireless under the auspices of the Telecommunications Act, it would have just used “transmission facility” in the law, but it did not.
When asked if they support Telus’ appeal, Bell spokeswoman Jacqueline Michelis only said the company is studying the appeal. Rogers did not respond to a request for comment.
The appeal comes at a critical time for 5G deployment, which will require many small cells on infrastructure like streetlights, lamp posts and bus shelters for ubiquitous connectivity.
“Their argument on that will be very uphill.” – John Lawford, PIAC
The CRTC had fielded submissions from carriers, some of which argued that they shouldn’t need municipal consent for 5G small cell attachments – or to push for legislative changes to accomplish that.
The large telecoms had made submissions through several channels in the past that legislative changes be made to give the CRTC domain over passive infrastructure so it could streamline the process. It’s an issue for which they have been arguing for many years, at many levels (like this one).
The telecoms had challenged municipalities on rights-of-way access because it often took too long for negotiations to settle. The telecoms recently lost a case in Ontario court over rates the energy board set for telecom attachments on their poles (the province has the country’s highest rates of that kind.) However, the province is conducting a review of those rates in light of developments with broadband deployment.
The wireless review was the opportune time for the big wireless carriers to get clarity from the Regulator on where it stands and how it would tackle the passive infrastructure question. Now, Telus is using the CRTC’s posture to create its own opportunity for clarity at the courts, which, if it takes up the case, could end up forcing the Commission to take another look at it.
Today, the telecoms are flying with a tailwind propelling their case: Federal government language has increasingly focused on the need to accelerate access to passive infrastructure. In fact, it has been part and parcel of the latest round of federal broadband funds, including the Universal Broadband Fund, which will prioritize applicants who provide timely access to those kinds of infrastructure.
Despite this, the CRTC said in its decision that the “parties did not provide persuasive evidence that municipalities systematically act as barriers to deployment.” The Regulator takes a hands-off approach to municipal-telecom agreements, only in this case providing a broadly municipal access agreement rubric by which the parties can use to guide their process.
While Telus isn’t appealing the main body of the CRTC’s decision, which was to provide regional carrier access to the big telecoms’ wireless facilities, it did have one more beef to pick with the decision: seamless roaming.
The CRTC decision said the big wireless companies must ensure that when subscribers are roaming into territory that is served by other carriers, they implement measures that would protect against dropped calls and maintain call quality.
Unlike its allegation that the CRTC abrogated its duty to clarify its domain over wireless attachments to support structures, Telus this time said the Regulator committed jurisdictional overreach by entering Innovation Canada’s domain. The federal department, it argues, states in its conditions of spectrum licence that such seamless handoff is not required, thus causing a conflict between the CRTC and the ministry.
In addition, while Telus says it is technically possible to implement seamless handoff with 5G technologies, it is “subject to major technical challenges and expensive to maintain.” That includes, it says, requiring two carrier networks to be physically connected in certain areas and keeping up modifications when carriers’ change their geographic boundaries.
When asked about the seamless roaming issue, John Lawford, executive director of the Public Interest Advocacy Centre, said, “In my opinion, it appears more aggressive against permitting competitors to have comparable service.
“I don’t buy the legal argument that the CRTC cannot affect incidental areas that spectrum licences may also touch upon. Their argument on that will be very uphill.”
