Supreme Court dismisses CCTA appeal on pole access The Canadian Cable Television Association (CCTA) has lost its Supreme Court bid to overturn a lower court ruling that set aside a CRTC decision giving cable companies access to utility poles at a rate far less than that demanded by electric and other utility companies. In a ruling in the Barrie Public Utilities v. Canadian Cable Television Assn. case announced today, a majority of Supreme Court justices held that it was fully within the power of the Federal Court of Appeal to decide that regulating access to utility poles – which are governed by provincial regulation – is outside the purview of the federally mandated CRTC. The ruling could potentially have a major impact on cable companies, which could see the rates that they pay to access the poles of utility companies skyrocket. For example, some cablecos have noted in their financial reports that the pole access question was a major business uncertainty. The CRTC had mandated a rate of $15.89 per pole, far less than the $40.53 rate requested by the utilities. The CCTA is refusing comment until it has read the decision. The Canadian Electricity Association (CEA) said in a media release the decision would enable the electric utility industry to enable it to ensure a “reliable and safe” system. The CEA reiterated today that electricity distribution companies are best suited to develop and oversee standards for utility pole attachments, expertise that does not exist within a body such as the CRTC. The CEA further noted that the CRTC attempted to assert jurisdiction over matters of provincial authority. The CEA also repeated assertions that the amount of the rate set by the CRTC was too low, and that electric utilities were subsidizing the cablecos’ share of costs for the power poles. “Canadian electric utility companies and cable telecommunications companies can now get back to work negotiating on a bi-laterial basis and focus on renewing the cooperative relationship they have enjoyed in the past,” said CEA president Hans Konow. The Supreme Court majority decision sided with the utility companies in their contention that the CRTC did not have the authority to rule on matters of provincial jurisdiction. The decision reads: “The proper interpretation of the phrase ‘the supporting structure of a transmission line’ in s. 43(5) is not a question that engages the CRTC’s special expertise in the regulation and supervision of broadcasting and telecommunications. Rather, it is a purely legal question and is therefore ultimately within the province of the judiciary.” The majority ruled that the CRTC reached too far in classifying utility poles as supporting “transmission lines” – and that electrical wires don’t transmit, but “distribute” electricity. It ruled that the Federal Court of Appeal was fully qualified to make that determination. The majority decision further states: “The CRTC’s heavy reliance on the policy of the objectives of the Telecommunications Act and the Broadcasting Act was in error. The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation. Yet the CRTC relied on policy objectives to set aside Parliament’s discernible intent as revealed by the plain meaning of s. 43(5), s. 43 generally and the Act as a whole.” One justice, however, dissented. Writing in opposition, Justice Michel Bastarache argued that more deference should have been given to the CRTC’s determination in the matter. “When its enabling legislation is in issue, a specialized agency will be better equipped than a court to interpret words in their entire context in harmony with the Act, the object of the Act, and the intention of Parliament. On even a purely legal question within its expertise, the CRTC is owed deference…If knowledge of all the technical meanings of terms such as ‘transmission’ and the factual situation of poles are relevant, the issue appears no longer to be a question of statutory interpretation. Instead, it is one deeply enmeshed in the context and the domain of the CRTC’s expertise.” The legal action was between the CCTA and several Ontario utility companies, including Barrie Public Utilities. The utilities were represented by the Electricity Distributors Association. They were upset by the rate that the CRTC set for access to their poles in Telecom Decision 99-13. The utilities appealed and had their complaint upheld by the Federal Court on July 13, 2001 (NL, July 30/01). The CRTC was granted leave to appeal the Federal Court’s decision, which was upheld in today’s Supreme Court ruling (NL Update, May 16/02).