Decision will create challenges for efficient 5G rollout: Telus
By Ahmad Hathout
The CRTC is correct in its interpretation of “transmission line” under the Telecommunications Act to mean just wireline infrastructure for the purposes of regulating attachments to public property, the Supreme Court of Canada ruled Friday.
The 7-2 ruling upholds a lower court’s decision and means the regulator does not have jurisdiction over wireless attachments on that property, forcing the telecoms to go directly to the municipalities that govern those structures to get access that they say they need to expand the next-generation 5G network.
The high court used at least two angles of attack to come to a majority decision: that a reasonable definition of “transmission line” cannot contemplate wireless signals that, contrary to a line, don’t follow a “defined path;” and that Parliament used the term “transmission facility,” which includes wired and wireless infrastructure, elsewhere in the legislation (s.2[1]), but elected not to use it under the sections in question: 43 and 44.
The court effectively agreed with the general argument of intervenor Electricity Canada, which suggested Parliament’s lack of change of “transmission line” in the legislation over the years means it intended to delineate the two types of infrastructure.
“Radio waves do not follow a defined path,” the court ruled, just over a year after agreeing to hear the case. “They emanate outwards from antennas in multiple directions. They are not buried or constructed and do not require breaking up public property. A signal transmitted by an antenna cannot ‘run’ on, over, under or along public property, nor does it require statutory regulation to ensure access for installation, operation or maintenance.”
The reasoning turns away a key argument brought forth by the applicant Telus – supported by Rogers and Bell – which argued that 5G wireless infrastructure cannot operate without a physical fibre line routing the traffic back to the central office.
Telus said while it respects the court’s ruling, “it creates challenges for efficient 5G deployment across Canada,” a Telus spokesperson said in a statement. “This outcome underscores the need for legislative reform to align wireless and wireline infrastructure regulations, ensuring Canadians can fully benefit from advanced wireless technologies and reduce the complexity and delays caused at the municipal level.”
The decision also puts to bed – at least at the legal interpretative level – a long-pleaded position of those large telecoms which, in submissions supporting each other, have pointed to a need for an understanding of the legislation from 1993 that is flexible to deal with the technological advances of today. Afterall, they suggest, legislation cannot keep up with the speed of such advances.
“General policy objectives cannot, on their own, give the CRTC jurisdiction over a specific matter,” the court ruled Friday. “The broad objective in s. 7(a) of the Act to facilitate the orderly development of telecommunications does not require that the Act be interpreted in the way that is most favourable to the telecommunications carriers. Important countervailing policy objectives support the differential treatment of wireless and wireline equipment in a network. Procedures for antenna installation, introduced pursuant to s. 5 of the Radiocommunication Act, reflect that Parliament is mindful of the specific impacts that antennas have on local communities and the risks associated with their deployment.
“As well, municipal structures may not be designed to accommodate 5G small cell antennas and local communities may have unique aesthetic or environmental concerns relating to antenna siting,” the majority decision continued. “As such, Parliament intended to leave access to these sites up to good faith negotiations between carriers and the relevant public authorities.”
Justices Suzanne Cote and Sheilah Martin disagreed, arguing that a “dynamic interpretation” – in lieu of a legislative definition – must be adopted so an interpretation of the legislation is not stuck in time. They argue that 5G small cell antennas “extend existing transmission lines” and therefore should be included in the definition of “transmission line” to make for a “single, integrated telecommunications network.”
“Transmission” means “transmission of intelligence,” with intelligence under section 2(1) including “signals” of any nature,” the dissenters argue. “While it is true that for cell phone users, no physical connection lines run between antennas and their phones, courts have referred to the transmission of radio signals between cell towers and cell phones as occurring along a ‘line of sight,’” suggesting a linear transmission of telecommunications between two points – in line with an interpretation of “transmission line.”
Cote and Martin offer an even broader interpretation of “line” to include wireless connections by pointing to the word “online” to suggest a device connected to an internet, but not one necessarily via a hard wire.
“General objectives of the Act as set out in s. 7 — such as facilitating orderly development of a telecommunications system, rendering reliable and affordable telecommunications services of high quality accessible to Canadians, enhancing efficiency and competitiveness, ensuring that regulation, where required, is efficient and effective, and responding to economic and social requirements of users — reflect a dynamic approach,” the dissenters continue.
“Parliament incorporated a commitment to technological neutrality into the Act by using the words ‘transmission line’ and its decision not to define ‘transmission line’ is an indication that the term was left open so that it could grow,” the say. “According to the principle of technological neutrality, since 5G networks carry the exact same telecommunications and serve the exact same purpose as networks that consist of physical cables or wires, they are functionally equivalent and should be subject to the same treatment under the law.”
Telus was appealing from the CRTC’s April 2021 decision mandating mobile virtual network operators, but declining to wade into the municipal access issue because it said it didn’t have jurisdiction on the matter.
The telecom argued that allowing municipalities to govern access to these structures means the telecoms will have a very difficult time rolling out 5G services, which it said require 250,000 to 300,000 small cells installed in these locations versus the 13,000 large towers powering the current cell network.
Telus, Rogers and Bell have argued for years that CRTC oversight of the municipal structures is critical for the timely expansion of the next generation networks, as history shows tension between telecoms and municipalities when it comes to that access.
