Building owners pleased with inside wiring decision despite loss at appeals court

Despite seeing its appeal of CRTC Telecom Decision 2003-45 turned down by the Federal Court of Appeal last month, the Canadian Institute of Public and Private Real Estate Companies (CIPPREC) says there’s a silver lining in the court’s decision. The court, says CIPPREC’s head, has reiterated what the lobby group has been arguing since the original decision - that the rules set down by the regulator for accessing inside wiring aren’t binding. Michael Brooks, CIPPREC’s executive director, tells Network Letter that the institute had little choice but to go above the CRTC’s head in an attempt to overturn key provisions of 2003-45, and says there are aspects of the decision to applaud. While the negative outcome "wasn’t unexpected," he says the ruling will help CIPPREC members stand their ground when negotiating with telcos since the court’s basis for turning down the appeal is that guidelines in 2003-45 for negotiating access agreements aren’t binding. In the judgment, handed down from the bench with oral reasons (written reasons were made public July 5), the court turned down an appeal by CIPPREC and the Building Owners and Mangers Association - Canada of the provisions in 2003-45 that allow the CRTC to issue orders requiring local exchange carriers to provide access to multiple dwelling units (MDUs) on the basis of certain conditions. It could, for instance, address situations where a carrier is denied the ability to provide telecom services to a MDU by forcing the building owners to provide facilities, or allowing a carrier to build their own for a given building. CIPPREC and the building owners argued that the CRTC would have no jurisdiction or authority to do so under the Telecommunications Act because it doesn’t have the power to regulate with respect to private property or MDUs. Respondents to the case - the incumbent telcos, CLECs and various public interest groups, as well as the CRTC itself - argued that the appeal should be rejected on the basis that the court doesn’t have jurisdiction to rule on statements made in a decision based on potential jurisdiction in future cases, which aren’t binding, and that the appeal is premature until orders such as those contemplated by the CRTC haven’t yet been issued. In its ruling, the court agreed that the issue was premature, and that it couldn’t rule on the basis of potential assertions of jurisdiction. Justice Edgar Sexton wrote for the court: "Rather than attempting to answer abstract questions about the existence and scope of the CRTC’s power with respect to existing and valid contracts, the Court should wait until it has before it a concrete case and a reasoned decision by the CRTC explaining the legal basis of its decision and the relevant regulatory context."CIPPREC recognized the likelihood of the premature nature of the argument before filing, but Brooks says, "we couldn’t not appeal." He states that had the institute allowed the decision to stand unchallenged, it would have hurt its chances of success in a future appeal. Its appeal was also a message, Brooks says, to the commission. "We have told the CRTC, ‘you try to use this and you will be sure to see us here again’," he says. The appeal was also a demonstration of CIPPREC’s ability to organize and mount an expensive appeal. "Should come, we’ll challenge it," he adds. Further, he cheers the court’s ruling that the CRTC’s guidelines for access to inside wiring are only suggestions at this point. "They’re not binding on us. That’s the opposite of what telcos have been telling our members ." In its decision, the court writes: "While the CRTC has made some comments regarding its jurisdiction in future cases, it has not actually purported to exercise any jurisdiction with respect to private property owners. Accordingly, these comments are of no legal effect and do not constitute a decision." In fact, during the process, the court also writes, the CRTC’s own counsel argued that the commission "did not consider that it had made any decision with respect to MDUs. Rather, it had simply issued guidelines which were not binding. He further stated that until there was specific fact situation adjudicated upon, there would be no decision." Theresa Griffin Muir, VP of regulatory affairs for MTS/Allstream - a respondent in the case - doesn’t agree that the ruling is necessarily a victory for building owners. She tells NL that only after a specific dispute is brought to the CRTC, ruled on, and then appealed to the Federal Court of Appeal again, with a positive outcome for the building owners, can they be said to have won. In the meantime, she says the court indicated that it is within the power of the CRTC to issue guidelines, and that no more can be read into the decision until those next steps are taken.

Building owners pleased with inside wiring decision despite loss at appeals court

News | July 7, 2004

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