By Ahmad Hathout
OTTAWA – Rogers is urging the Supreme Court of Canada to review a decision by the CRTC declining to regulate wireless attachments on municipal structures, arguing that carriers would otherwise have “no recourse” with the regulator on that critical access required for the next generation 5G rollout.
Rogers filed a two-page argument on Monday backing Telus’s application for leave at the high court after the Federal Court of Appeal ruled in April that a lower court got it right when it said Parliament intended a reference to “transmission line” in the Telecommunications Act to literally mean only hard wires and not wireless technologies. Bell filed a single-page letter backing Telus last month.
In its narrow interpretation of transmission line, the appeal court “rejected a dynamic and purposive interpretation of ‘transmission line’ that includes wireless transmission facilities, such as 5G small cells – equipment that, as Telus notes, is connected to wireline facilities,” Rogers said, adding the 5G technology did not exist prior to the statute’s enactment in 1993.
Rogers also argues that the appeal court “dismissed actual evidence of Parliamentary intent to enact a dynamic, technology neutral framework for telecommunications networks and services,” pointing to the court’s “consistent application” of technological neutrality in interpreting the Copyright Act.
It also took issue with the idea that Parliament would “cede control over the terms of carrier access to public places for the constructure of wireless telecommunications infrastructure to municipalities in the spirt of cooperative federalism.
“It did so in the absence of conflicting provincial legislation or explanation for why Parliament would renounce its exclusive authority over access to public places by wireless telecommunications infrastructure but not wireline infrastructure,” Rogers said.
The cable company also took issue with the appeal court’s determination that there would be a conflict between the Radiocommunications Act, which is governed by Innovation Canada and determines tower sites, and the access regime governed by the CRTC.
“There is, in fact, no possibility of such a conflict,” Rogers said.
“The FCA decision means that carriers have no recourse to the federal telecommunications regulator when municipalities and other public authorities impose terms on construction of wireless telecommunications infrastructure in public places – including which carriers have access, when and how access will be granted, and what fees may be charged – that undermine the efficient, national deployment of 5G networks in Canada and achievement of federal telecommunications policy objectives,” the company added.
The appeal court agreed with the interpretation of the Federation of Canadian Municipalities — which was the main opposition to Telus’s appeal — that the CRTC took the correct broad contextual view of the Telecommunications Act to determine that Parliament only intended for section 43 to include physical wires because it mentions “transmission facility” elsewhere in the legislation. The reasoning goes that if it intended a broader definition, such as “transmission facility,” it would have included that in the section in question.
