By Ahmad Hathout
Concerned about further delay in the process, the CRTC on Tuesday denied Bell’s application asking it to defer to the courts the question of whether it has jurisdiction over small cell attachment on telco structures or hold a separate proceeding on just that question.
The regulator launched a proceeding on the wireless attachment issue last month, holding the preliminary view that it has simultaneous jurisdiction over those structures with spectrum auction authority Innovation Canada (ISED). It also laid out some other related issues to be determined during the consultation period.
Bell has argued that these attachments on poles it controls are the jurisdiction of Innovation Canada, so it asked the CRTC in a Part 1 application last month to preferably defer the jurisdiction question to the Federal Court of Appeal or hold a consultation on just that question before embarking on a resource- and time-intensive proceeding involving all the other related issues that may not matter if it is found to not have that authority.
But the CRTC said Tuesday that embarking on that route would delay the process.
“The Commission considers it important to provide, without delay, greater regulatory certainty with respect to the rules for the deployment of wireless networks,” the CRTC said. “With clear and predictable rules in place, investment risk decreases and competitors are better placed to expand their wireless networks.”
Bell argued 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.
Bell alleged 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 to sway the CRTC.
In response, the regulator said Tuesday that providing a preliminary view on the matter does not prejudge a determination.
“The Commission has broad authority over its processes, which includes the authority to dismiss an application without the need to hear from other parties,” the CRTC added.
“In the present case, the Commission considers that there is no genuine issue for consideration in Bell Canada’s application because the question of the Commission’s jurisdiction over the deployment of wireless facilities is being considered as part of [the consultation].”
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 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 attach 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.
Rogers told the nation’s highest court earlier this month that there are risks of delays in the rollout of 5G if the CRTC is determined not to have jurisdiction over those municipal structures.
