Supreme Court grants leave to appeal decision on utility pole access by cablecos

On May 16, the Supreme Court agreed to hear an appeal by cablecos over access to utility company poles. Jennifer Fong, a lawyer with Osler, Hoskin & Harcourt LLP, provides Canadian Communications Reports with this assessment of the case. Osler, Hoskin & Harcourt represents Bell West (formerly Bell Intrigna) in its proceeding against Enmax Group of Calgary. On May 16, the Supreme Court of Canada granted an application by the Canadian Cable Television Association (CCTA) for leave to appeal a decision of the Federal Court of Appeal concerning cable company access to electric utility poles for the purposes of supporting cable transmission lines. This decision considered whether subsection 43(5) of the Telecommunications Act gives the CRTC the statutory authority to grant cable television companies access to poles owned by provincially-regulated power utilities at rates fixed by the CRTC. The Federal Court of Appeal concluded that the CRTC did not have such power. As a result, the CCTA sought and has been granted leave to appeal the decision to the Supreme Court of Canada. As is customary, the Supreme Court has not provided reasons for its leave decision. However, it can be surmised that the leave decision was likely influenced by important issues concerning whether Parliament has the authority to regulate access by broadcasting and telecommunications undertakings to provincial infrastructure for federal purposes. Review of the Federal Court Decision In the past, cable companies and power utilities have generally reached agreements concerning cable access to the utilities’ poles. When no agreement could be reached after 1996, the cable companies in the current case sought and received an order from the CRTC granting them access to the utilities’ poles at a fixed rate pursuant to subsection 43(5) of the Telecommunications Act. That order was successfully appealed by the utility companies to the Federal Court of Appeal. Subsection 43(5) allows a person who provides services to the public to apply to the CRTC for access to the supporting structure of a transmission line constructed on a highway or other public place. The Court of Appeal focused its analysis on the term "transmission line" since subsection 43(5) does not explicitly define whether this term includes electrical transmission lines. After analysing the statutory context of the provision, the Court of Appeal concluded that Parliament did not intend the term "transmission line" to include electrical power lines. To reach this conclusion, the Court of Appeal applied a restricted interpretation to the term "transmission line". When read literally, the court noted that subsection 43(5) could apply very broadly, including to situations where neither the party seeking access nor the transmission line owner was a federal undertaking. According to the court’s reasoning, Parliament could not have intended such a broad interpretation since it would give the CRTC a power that fell outside both the commission’s mandate to regulate telecommunications and broadcasting as well as Parliament’s legislative authority under the Constitution Act, 1867. In light of this constitutional conflict, the Court of Appeal concluded that Parliament intended the term "transmission line" to be limited to transmission lines of Canadian carriers or distribution undertakings, but not to include transmission lines of provincially-regulated power utilities. The Court of Appeal drew further support for a restricted interpretation of the term "transmission line" by examining the use of the term in other subsections of section 43 and in the legislative history of subsection 43(5). Finally, the court rejected the CRTC’s reliance upon the policy objectives set forth in the Telecommunications Act and the Broadcasting Act, noting that the CRTC had no plenary power to implement these policy objectives nor were the policy objectives a basis upon which the CRTC could justify claiming jurisdiction. Potential Implications of the Supreme Court Appeal A final disposition by the Supreme Court of the support structure access issue will be welcomed by the CRTC and its cable licensees, which continue to grapple with the issue. At least two other significant complaints regarding access to support structures are currently before the Commission, which is currently in a holding pattern regarding its ability to exercise jurisdiction on the matter pending the appeal. One of these pending complaints (Bell Intrigna) may be further complicated if the Competition Bureau weighs in regarding the economic and competitive issues arising from support structure access. Bell Intrigna has filed a complaint with the Bureau as part of its bid to seek access on reasonable terms from Enmax. Another consequence from the Supreme Court appeal may be a definitive pronouncement regarding the constitutional issue of whether Parliament has the legislative power to explicitly enact a provision to confer jurisdiction upon the CRTC over access by federal undertakings such as cable and telephone companies to provincially-regulated utility poles. The Federal Court of Appeal did not consider this issue directly in its decision. If the appeal is unsuccessful, the CRTC and its licensees may lobby for amending legislation to this effect. Finally, the appeal will provide another window through which to compare the differing levels of judicial deference afforded to the CRTC by high level courts. In recent years, the Federal Court of Appeal has proven itself to be increasingly activist with a growing willingness to intervene on CRTC decisions as its decision in Barrie Public Utilities illustrates. In contrast, the Supreme Court of Canada appears to afford a much greater degree of deference to the CRTC’s expertise as witnessed in the recent Bell ExpressVu Limited Partnership v. Rex case and B.C. Tel v. Shaw. On this point, the appeal decision will be extremely relevant to both the commission and to its federally-regulated cable licensees and telecom carriers, all of which will be guided on future matters – support structure access and otherwise – by the Supreme Court’s findings and degree of deference to the commission’s regulatory expertise. Jennifer Fong is a member of the communications law practice group in the Calgary office of Osler, Hoskin & Harcourt. She was called to the Ontario bar in 1993 and the New York bar in 1997.

Supreme Court grants leave to appeal decision on utility pole access by cablecos

Broadcast | May 23, 2002

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