By Ahmad Hathout
OTTAWA – Telus is appealing to the Supreme Court of Canada a decision by a lower court that denied its application asking it to find the CRTC has jurisdiction over wireless access to municipal infrastructure.
In arguments filed to the high court Monday, Telus said the Federal Court of Appeal’s fixation with the dictionary definition of “transmission line” under section 43 of the Telecommunications Act to include only hard wires made it unappreciative of the fact that those wireless signals have to route back to hard lines that go back to the provider’s network.
“By focusing on the point that small cell antennas send and receive wireless signals, the court below failed to appreciate the importance of the physical connections between those cells and existing transmission cables, which are vital to the provision of end-to-end service,” Telus said in its pitch for the court to hear its case.
“Small cells constitute an integral part of the Applicant’s transmission network and fall squarely into the plain meaning of ‘transmission line,’” it added.
Telus had argued before the appeal court that the CRTC too narrowly defined the term “transmission line” to only include physical infrastructure, rather than a holistic view to also include wireless signals. But the appeal court ruled in April that, had Parliament intended that, it would have spelled that out specifically in the legislation.
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 Vancouver-based telecom argues that the legislation had intended to encompass the entirety of the telecommunications system, including wired and wireless technology, and lawmakers intended for there to be malleability with its interpretation.
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 was backed by Rogers and Bell, all of which have argued for years that CRTC oversight of the municipal structures is critical for the expansion of the next generation networks.
“The Court’s conclusion that the access regime does not cover wireless facilities cannot suddenly grant municipalities constitutional jurisdiction to legislate in this area,” Telus said. “Cooperative federalism is no answer here — while it provides flexibility in the operability analysis, it can neither override nor modify the division of powers itself. Parliament’s exclusive jurisdiction in this area cannot be usurped by a narrow statutory interpretation.”
The Federal Court of Appeal also denied Telus’s application to find that the CRTC could not force seamless roaming on providers because that’s the domain of Innovation Canada, which doesn’t require spectrum licencees to implement those technical characteristics as a condition of licence.
Telus does not make mention of that decision in its appeal.
