By Ahmad Hathout
Bell wants the CRTC to defer to the Federal Court of Appeal to determine whether the regulator has jurisdiction over small cell attachments on telco-owned or controlled structures – or, in the alternative, separate that question from the rest of its proceeding on the matter.
The telco filed a Part 1 application Tuesday challenging the CRTC’s preliminary view on which it launched a proceeding earlier this month that it has concurrent jurisdiction with Innovation Canada (ISED) over the wireless attachments crucial for 5G technology. Bell has always argued that ISED, which manages spectrum auctions required for such wireless technology, has exclusive jurisdiction over the matter.
Bell argues in its application that the CRTC erred by failing to mention, let alone analyze, the concurrent law implicated in the matter: the ISED-administered Radiocommunications Act. Citing legal precedent, Bell argues that the CRTC-administered Telecommunications Act and the Radiocommunications Act make up part of what is called the interrelated statutory scheme.
That said, Bell alleges that by crafting the preliminary view on shaky legal ground to begin with, the CRTC is creating a warrantless presumption and forcing intervenors in the proceeding to disprove its preliminary view.
Bell is also arguing that the preliminary view is problematic because the underlying rationale is not fleshed out, robbing the parties of an obligatory fair process.
“To the extent the Commission is unwilling or unable to make available any particulars shedding some light justifying the basis for its preliminary view on jurisdiction, then the principles of natural justice and procedural fairness require that TNC 2024-25 be amended such that paragraph 27 [preliminary view] be rescinded in its entirety,” Bell said in the application.
Bell is asking that the CRTC either refer the issue to the Federal Court of Appeal or launch a proceeding exclusively on the jurisdiction question first. If the CRTC determines it doesn’t have domain, it doesn’t have to waste time and resources on the other questions of the proceeding. Conversely, it can proceed with the rest of the proceeding only if it determines it does have jurisdiction, Bell recommends.
The telco cites precedent where the CRTC sought court intervention in 2010 on the ability of private local television stations to choose to negotiate with broadcasters on the distribution of programming services.
Bell also said the CRTC erred by citing as precedent its 2023 decision determining a streamlined plan for telecom access to municipal structures because the regulator said in that decision that its jurisdiction on wireless attachment was yet to be determined.
The launch of the proceeding in question comes after years of competitors clamouring for a ruling on these small cells for the rollout of next generation 5G wireless technology, which requires a higher density of them because of its use of short-range millimetre-wave spectrum.
Specifically, Rogers has been banging on the regulator’s door with a couple of applications over the space of three years, the notable first one coming in 2020 – filed jointly with Quebecor – to make a determination on an allegation that Bell was delaying permit applications to attached that equipment on its poles.
Then in July last year, Rogers accused telcos Bell and Telus of delaying its requests to attach such wireless equipment on their poles, and asked the CRTC to make an interim order forcing the telcos to process its attachment requests. That application was formally denied because it was going to take it up in the new proceeding.
In a related but separate matter, the Supreme Court of Canada will hear whether the CRTC has jurisdiction over municipal-owned structures to similarly streamline the attachment of wireless equipment for the rollout of 5G technology.
Bell, Rogers and Telus believe the CRTC does have jurisdiction.
