By Denis Carmel
OTTAWA – The Federal Court of Appeal (FCA) last week gave Telus permission to appeal the CRTC’s April 2021 wireless review decision, Telecom Regulatory Policy CRTC 2021-130.
Telus went to court, not to argue against the CRTC’s decision requiring it to introduce a wholesale service that will enable eligible regional wireless carriers (Editor’s note: like Vidéotron) to use national wireless carrier networks to provide competing services while they build out their own networks.
No, when the CRTC issued its decision in April 2021, it took the opportunity to rule on other issues raised during the proceeding as well, including whether provisions in the Telecommunications Act that deal with “access to public places apply to mobile wireless transmission facilities, namely small cell apparatus such as those that would be deployed in 5G networks,” reads CRTC 2021-130.
“Ultimately, in light of the arguments made on the record and the applicable principles of statutory interpretation, the Commission considers that these statutory provisions do not provide the Commission with jurisdiction to adjudicate disputes involving mobile wireless transmission facilities. The Commission’s conclusion largely turns on the use of the term ‘transmission line’ in the relevant statutory provisions,” concluded the CRTC in its decision.
Telus disagreed and went to the FCA, arguing the Telecom Act should be interpreted in a more forward-looking fashion when it says “a Canadian carrier or distribution undertaking may enter on and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines.”
Telus then quotes then Communications Minister, Perrin Beatty, in the House of Commons in 1993 saying: “The bill deliberately sets a framework which will be flexible for the future. One of the things we wanted to avoid was a situation where new technologies would rapidly make the regulatory framework spelled out in the bill obsolete.”
Also, the Telecom Act when it allows service providers to use municipal facilities, requires them to seek consent from municipalities. If they do not the Commission can be called upon to settle the dispute.
Something tells me that the CRTC would like Telus to win on this one…
Another issue addressed in CRTC 2021-130 is whether large telecom carriers like Telus should be mandated to provide seamless roaming as part of their wholesale services. “The Commission considers that seamless roaming would provide an additional layer of support for competition as regional wireless carriers build their networks. By addressing the dropped call problem, mandated seamless roaming would help regional wireless carriers offer a more enticing service to consumers, even at the edges of their networks,” reads the decision.
Telus argues the Minister of Industry, in 2013, when granting the wireless licences, did not require this level of service and that the CRTC decision goes against the Minister’s decision.
“Telus and other wireless carriers have spent billions of dollars licensing wireless spectrum from the Minister under the specific conditions of licence set by the Minister. Jurisdiction to amend the Minister’s condition of licence is reserved exclusively to the Minister in the RA (Radiocommunications Act). The CRTC cannot simply reach a different policy conclusion and issue a conflicting condition,” Telus argues in its FCA motion.
Cartt.ca is puzzled about the concept of 5G not having seamless roaming.
Getting leave is by Telus’s own admission, not a very high threshold: “TELUS must demonstrate only that there is an arguable ground on which the proposed appeal might succeed.”
Cartt.ca will be following the file.
