By Ahmad Hathout
OTTAWA – Electricity Canada said in a filing to the nation’s highest court this month that Parliament’s refusal to amend “transmission line” under the Telecommunications Act is evidence of its belief that it does not foresee an obstacle for telecoms getting wireless access to municipal structures without CRTC jurisdiction.
Electricity Canada is opposing a Telus application for the Supreme Court of Canada to hear its argument that a lower court erred when it upheld the CRTC’s decision to decline to regulate wireless attachments on municipal structures on the basis it does not have jurisdiction. The Vancouver-based telecom, which is supported by Rogers and Bell, is arguing Parliament intended “transmission line” to encompass both wireline and wireless attachments, and that the wireless equipment in any case relies on wires to send traffic back to the network.
Electricity Canada, which represents structure owners and filed its opposition to Telus during the lower court hearing, said in its filing that wireless technology routing back to wires “adds nothing to the analysis.”
It said the distinction between the technologies was a policy choice by Parliament and does not allow for judicial intervention and that neither the CRTC nor the Federal Court of Appeal made errors in its determination to turn away Telus’s application.
A major part of its argument is grounded in the lack of movement on amending section 43 of the Telecommunications Act, which includes “transmission line” in dispute. In its argument, it said had Parliament intended for transmission line to include both wires and wireless technologies, then why didn’t it make that change when that was recommended to it by the Broadcasting and Telecommunications Legislative Review Panel?
To support that argument, it also points to the use of “transmission facility” – a term used to encompass more telecommunications technologies – in other areas of the legislation. This, it argues, suggests that Parliament knew of different telecom technologies at the time the legislation was being drafted.
The organization also points to the lower court not recognizing the telecoms’ “doomsday argument” – that there would be an issue with telecoms getting timely access with municipalities on access to the structures without CRTC oversight. Some telecoms have had to go to court over that access over the years.
“Essentially, the Court of Appeal found Parliament was well aware of the existence of wireless antennas when it enacted the Telecommunications Act and carefully worded the legislation to allow the CRTC to adjudicate access requests to construct, maintain and operate telecommunications wires, but not antennas,” Electricity Canada said, which is a reiteration of its argument during the lower court hearing.
Rogers said in its own submission that when Parliament enacted the Act, it had no idea of the advent of 5G technology, which requires many more small cell equipment to be attached on more structures. Telus has said that the telecoms require 250,000 to 300,000 small cells installed in these locations versus the 13,000 large towers powering the current cell network. Structures include lamp posts, traffic lights and bus shelters.
Electricity Canada pointed to a portion of the lower court’s decision, which claims that the 5G network “is no different from the traditional cell phone antennas installed on tall towers and buildings over the last decade.”
The organization added that access to this public property for wireless antenna construction “has never been adjudicated by the CRTC, regardless of the size of the antenna cell.”
The Supreme Court has yet to decide whether it will hear the matter.
