FCM seeks leave to appeal CRTC decision on municipal rights-of-way

As expected, the Federation of Canadian Municipalities (FCM) is seeking leave to appeal a CRTC ruling on municipal rights-of-way. The FCM has joined with the City of Edmonton and the City of Calgary asking the Federal Court of Appeal to overturn Telecom Decision 2003-82. That decision arose from a dispute between Allstream Corp. (then AT&T Canada) and the City of Toronto over whether the provisions of the Ledcor decision should apply to all municipal access agreements (MAAs). When the commission released its ruling on MAAs last December, Howard Moscoe, the chair of the FCM’s telecom committee, predicted an appeal would be launched (NL, Dec. 8/03). He speculated that, as the rules now stand, the CRTC would make a habit of interfering with existing and future MAAs. The FCM filing to the court echoes that view. "If allowed to stand, the effect of the decision will be to decrease certainty and predictability in commercial relationships between carriers and municipalities, thereby creating disincentives for municipalities to negotiate access contracts," Christian Tacit of Nelligan O’Brien Payne LLP writes on behalf of the federation. Tacit cites the Barrie Public Utilities v. Canadian Cable Television Association ruling by the Supreme Court to bolster his argument that an appeal should be heard (NL, May 20/03). One of the factors in the Barrie case, which the FCM features in its leave to appeal, is the purpose of the legislative provision. Simply put, the FCM does not believe the Telecommunications Act gives the CRTC the jurisdiction to review and amend MAAs. Only eight paragraphs in 2003-82 discuss the commission’s reasons for asserting its authority in the case. The federation believes this is an error in law and also violates constitutional law. "In this respect the commission appears to base its conclusion that it has the jurisdiction to review and amend access contracts on the perceived benefits of creating a level competitive playing field among carriers, at the very time when Allstream is seeking to have the terms of its access contracts amended to conform with the Ledcor Principles," Tacit writes. "This is crucial because it directly contradicts the commission’s finding at paragraph 51 that the provisions of the Act, including section 43, do not contemplate that the commission could issue a broad direction requiring parties to bring all existing access contracts into conformity with a set of guidelines like the Ledcor Principles, which this court, in Federation of Canadian Municipalities v. AT&T Corp. (‘Ledcor’), found not to be binding on anyone." The FCM maintains that section 43 of the act does not provide the CRTC with a role in the negotiation of contracts. Its power is limited to that of dispute resolution, not regulation of agreements. "The only way to have terms and conditions set by the commission is for a carrier to apply to the commission after negotiations with the municipality have failed," the leave to appeal states . "When a carrier and a municipality negotiate and execute an access contract, they agree upon terms and conditions acceptable to their needs and circumstances in a manner that meets the requirements of subsections 43(3) and (4). That is, municipal consent is conferred for access on terms acceptable to the carrier. The contract cannot be modified, as a result of any second thoughts that the carrier may have that relate either to its mindset at the time when it negotiated the contract, or as a result of any subsequent events." Allstream did not return several phone calls from Network Letter seeking comment on the FCM appeal. When 2003-82 was first issued, Allstream VP regulatory affairs Teresa Muir expressed hope that the decision would eliminate much of the bickering between carriers and municipalities.

FCM seeks leave to appeal CRTC decision on municipal rights-of-way

News | 02/03/2004 5:00 am EST

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