Supreme Court to hear cable industry appeal on access to electric utility poles

The Canadian Cable Television Association (CCTA) has won an important legal battle in its efforts to gain affordable access to electric utility poles, a ruling that is a win for cablecos and telcos alike. Last week, the Supreme Court of Canada granted the association leave to appeal a lower court ruling on access to the poles of electric utility companies. As is the norm, no reasons were given for the decision and no date for a hearing was set. Legal observers speculate, however, that given the court’s current workload, a hearing likely won’t be held until early in 2003. In July 2001, the Federal Court of Appeal ruled that the CRTC did not have the right to order utilities to provide telcos and cablecos space on the poles under the Tele-communications Act (NL, July 30/01). The unanimous decision was considered unusual, since the courts are reluctant to overturn commission determinations. CCTA pleased Lori Assheton-Smith, CCTA general counsel, is pleased with the outcome of the leave application, and believes the association has a strong case. "We were very concerned that the Federal Court’s interpretation of the Act was problematic and not just for cable but for the entire communications industry," she explains to Network Letter. "And I think that the strength of the affidavit evidence before the Supreme Court on the leave application was probably fairly persuasive in showing what the impact of the Federal Court decision would be if it were allowed to stand." The initial action was between the CCTA and several Ontario utility companies, including Barrie Public Utilities. The utilities were represented by the Municipal Electric Association (since renamed the Electricity Distributors Association). They were upset by the provision of Telecom Decision 99-13, which stated the commission had the right to set prices for access to utility equipment. The core of the battle is jurisdictional, rather than constitutional. Utility companies are subject to provincial regulation; broadcast and telecom entities are under federal control. The utilities argue that the CRTC is overstepping its boundaries by forcing them to make their poles available to cablecos and telcos. The power companies are also upset about the rates the commission mandated – $15.89 per pole rather than the $40.53 the utilities have been seeking. The utilities had expressed a desire to negotiate a settlement with the cablecos, while at the same time preparing its response against the leave to appeal application. Talks between the two sides are continuing, although the Supreme Court decision may tilt the balance slightly in the cable association’s favour. An Ottawa-based communications lawyer believes this is the continuation of advances that have been made in the telecommunications sector over the last decade. "The introduction of competition was without question the key issue for the CRTC in the 1990s. I believe the key issue for the commission in this decade is the issue of access," Lorne Abugov of Osler, Hoskin & Harcourt LLP tells Network Letter. (Osler, Hoskin & Harcourt is not involved in this proceeding, but does represent Bell West in a similar fight with Calgary’s Enmax Companies for access to their poles.) There are several other complaints about access still to be resolved. Calgary CLEC Suite Systems Inc. (SSI) has filed a Part VII with the CRTC seeking access to Enmax poles (NL, July 30/01). The Ledcor ruling is being appealed by the Federation of Canadian Municipalities (NL, Feb. 12/01). Access and jurisdictional clash The question of access was the topic of a lively session at last month’s New Developments in Communications Law and Policy conference in Ottawa. At the meeting, Jonathan Blakey of the law firm Stikeman Elliott presented a paper entitled Municipalities, Carriers and Power Companies: The Clash of Jurisdictions. "Both the Bell Intrigna and SSI Part VII applications raise the issue of whether the commission has the jurisdiction pursuant to subsection 43(5) or subsection 42(1) of the Telecommunications Act to make access orders in respect of support structures owned by hydro companies, used to support hydro transmission lines," Blakey wrote. "The SSI application raises the narrower issue of whether, in the wake of the Barrie Public Utilities Decision, the CRTC has the jurisdiction to issue a support structure access order against a carrier to provide access to space on a support structure owned by a hydro company, but licensed by the hydro company to that carrier. The Enmax companies argue the Barrie Public Utilities Decision is determinative and that the CRTC lacks such jurisdiction. SSI disagrees." While the debate has been couched in high-minded terms, some cast a skeptical eye on the proceedings. At the communications law conference, sponsored by the Law Society of Upper Canada and the Canadian Bar Association, Blakey’s paper was rebutted by Peter Ruby of Goodmans LLP and Ken Engelhart, VP regulatory of Rogers Communications Inc. Engelhart dismissed the requests by utilities and municipalities as nothing more than a cash grab. "They say, ‘we want money, you have money, we want your money’," he stated. Ruby echoed those sentiments. "I’d suggest that what everybody’s fighting over is the big bucks," he said. He conceded that the CRTC does get the last word on municipal access but suggested the commission should be in discussions with the provinces in matters where jurisdictions overlap. Using the Ledcor decision as an example, he pointed out the municipalities got many things they wanted when their dispute with telecom carriers was resolved, but they did not get rent, a key objective. Landscape has changed Engelhart attributed part of the problem to the fact that the original legislation governing utility poles is over a century old, and placing modern interpretations on decades-old law is difficult. He also pointed out how different the landscape has become since the emergence of competition. Many of the utility companies and municipalities that are demanding funding from telcos are now battling those firms for telecom customers. This has led to some newly emerging utels and municipal fibre networks offering to lease their fibre to the telecoms rather than permitting them access to streets and poles. Engelhart questioned how much disruption is truly caused by telcos and cablecos tearing up the streets. He stated that in his home base of Toronto more service interruptions are caused by the closing of thoroughfares for film shoots than by fibre installation. For more on this topic see the Newsmakers column.

Supreme Court to hear cable industry appeal on access to electric utility poles

News | 05/21/2002 4:00 am EDT

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