By Ahmad Hathout
OTTAWA – Canada’s largest telecoms argued before the Federal Court of Appeal today that the CRTC was wrong when it ruled in its mobile wireless review last year that it did not have jurisdiction to address issues related to wireless access to municipal infrastructure.
The case stems from an August 2021 appeal by Telus against parts of the CRTC’s wireless review decision, which approved mandatory wholesale access to the large networks by regional service providers with facilities and spectrum.
But in the CRTC’s April 2021 decision, it also refused to wade into the issue of wireless carrier access to municipal rights-of-way, including access to highways, bus shelters and other structures. The CRTC argued that the jurisdiction for wireless facilities is held with Innovation Canada, which administers the Radiocommunications Act.
Lawyers for Telus on Monday argued that the CRTC erred in reaching that conclusion, suggesting that the federal ministry that manages spectrum can only approve sites for builds, not access to public places to construct, maintain or operate transmission facilities. That, they argue, is within the domain of the CRTC.
At issue specifically is whether the term “transmission lines” under section 43 of the Telecommunications Act – which gives the CRTC the authority to allow telecoms to build on public space – should be interpretively expanded by the CRTC to include transmission “facilities” more broadly, which can include the transmission via wireless antenna and not just hard wires.
Specifically, Telus argues that section 43 was intended to deal with municipal rights-of-way in a “comprehensive way” and not just the parts that use wires – as defined in “transmission lines,” its lawyers argued today.
“Why would you say that we’ll only pick the wireline part of the network?” Telus’s lawyer argued Monday, alluding to Parliament’s construction of section 43. “Nobody has offered any reason why…they would decide to exclude wireless.”
Telus, supported by Bell and Rogers, argues that the CRTC was fixated on “dictionary definitions” of “transmission lines” to reach its decision, and did not – as it argued it should have – consider “transmission facilities” more broadly to make a decision on wireless access.
Lawyers for the Vancouver-based company additionally argued that the small cells need to connect to wires anyway – in this case, the small cells require a hard fibre connection to operate, so the facilities are working cooperatively. Moreover, having jurisdiction over both wireline and wireless access would be required for the CRTC to fulfill its legislative mandate, they maintain.
The next generation of 5G wireless technology will require the installation of many small cells, communications equipment that will need to be planted on numerous municipal structures to fulfill the promise of ubiquitous connectivity. The large telecoms have argued for years for fast and economic access to overland infrastructure, including wood poles, which are owned largely by the provincial utilities or the legacy telephone company. That access, they say, is key to broadband infrastructure expansion.
Rogers and Bell back Telus
Rogers backed Telus’s application by arguing that it doesn’t make sense that Parliament would contemplate a regime that divides wireline and wireless facilities under the Telecommunications Act of 1993. In crafting the Telecommunications Act, Rogers’s counsel Jay Kerr-Wilson said Parliament intended for there to be a single telecommunications system that encompassed both facilities. He further argued that it doesn’t make sense that ISED would have exclusive jurisdiction over wireless access to municipal rights-of-way because the federal department – unlike the CRTC – doesn’t have a dispute resolution process to deal with issues emanating from those access issues.
Bell counsel Adam Goldenberg added that the CRTC inappropriately conflated the minister’s power to determine where an antenna can be built with ordering wireless access to public places. He argued that the CRTC has exclusive jurisdiction for ordering wireless service providers to obtain access to those municipal rights-of-way.
A ‘feature, not a bug’
But lawyers for the respondent Federation of Canadian Municipalities, which initially opposed the large telecoms’ request of the CRTC to decide on wireless access to public facilities, argued that the regulator got it right.
Key to that argument is, if Parliament intended to open up the definition of “transmission line” beyond just wires, it would have. To show that, the FCM, as well as the CRTC in its original reasoning, note that “transmission facility” as a term is used elsewhere in the Telecommunications Act, namely in section 2. If it is used elsewhere, Parliament was aware of its definition and preferred not to implant it in the provision at issue, FCM counsel posited.
FCM counsel further argued that the Telecommunications Act has gone through 15 revisions since 1993, yet the term at issue has not been amended.
FCM arguments were backed by Electricity Canada and the province of British Columbia.
Hearing on seamless roaming issue tomorrow
The hearing is divided over two days that each address the two different issues in the appeal: today’s wireless access to public property, and tomorrow’s exploration of the CRTC’s requirement for seamless roaming in its April 2021 decision.
For the latter, the large telecoms are arguing that seamless handoff requirements stipulating that large telecoms ensure regional telecom subscriber calls are not dropped when the network is switched while roaming is in direct conflict with ISED’s spectrum rules that don’t have such a requirement.
Screenshot of Rogers counsel Jay Kerr-Wilson from Monday’s hearing
