Delaying competitor access to towers and networks now tougher under new Industry Canada rules

Industry Canada is toughening up its licence conditions for incumbent wireless carriers – a move that should make it easier for new entrants to negotiate antenna tower sharing and roaming agreements with the Big Three wireless operators. After numerous complaints from new entrants, the department ruled on such matters as preliminary technical information, response times from wireless incumbents, future use provisions and confidentiality requirements (see below for partial list). But Industry Canada also warned incumbent wireless carriers that providing access to their towers and networks is a condition of licence, and that non-compliance of those conditions will have consequences. “Many spectrum licences have been issued with a high expectation of renewal; however, that expectation only applies where the licence conditions are being met. As a result, a renewal may be denied or a licence not fully renewed where there is a breach of any of the conditions of licence,” reads the clarification document. “Furthermore, to the extent that non-compliance impairs or frustrates the policy objectives for which these licence conditions were established, consideration may be given in future licensing processes to more prescriptive and/or restrictive policy measures.” Industry Canada’s decision comes after several of the new entrants complained that the incumbent wireless carriers weren’t negotiating in good faith or were failing to respond to site sharing and roaming applications in a timely manner. In an interview with Report on Wireless last month, Richtelecom CTO Jacob Sharawi talked about the incumbents’ strategy. “We don’t have the roaming agreement in place yet, though it is scheduled,” he said. “They will fight you tooth and nail. All new entrants should be ready for a fight with incumbents to get these agreements in place and make sure they are fair.” DAVE Wireless told the department that the fighting between carriers should be in the market, not during this process. “We share the frustration and concern expressed by several of our fellow wireless new entrants, as the incumbent wireless carriers seem to be focused on frustrating the process and intent of the department, as opposed to moving forward to build Canada’s telecom infrastructure together, and leaving competitive bantering to the marketplace where it belongs.” Response times The department had initially given ILECs a week to respond to a preliminary technical information application in its original tower sharing and roaming agreement policy. But given the high number of applications, Industry Canada has allowed the incumbent wireless carriers two weeks to respond. This lasts until October 2009. Future site requirements In deciding whether to allow site sharing, the existing wireless carriers are also to take into account their immediate future need of space on the tower. The department said that any imminent future plans had to be well documented. The notice determines that imminent future use is for a period of 18 months, meaning that the incumbent wireless carrier has to show that it will be using space on the tower within the next 18 months. Site access While there was general agreement of the need for site visits, some questioned the need for such an activity at the preliminary stage. Industry Canada, however, said it should be allowed and ordered the ILEC wireless carriers to allow for a site visit within one week of the request. Confidentiality provisions Some of the new entrants complained that the existing wireless carriers were requiring non-disclosure agreements at the very early stages of the site and roaming application process. While Industry Canada acknowledged that NDAs may be required, it noted they are usually applicable at a later stage in the negotiation. “The department is of the view that non-disclosure agreements should be appropriate and generic in nature, should not include provisions that are unique to a single operator or group, and should not prohibit negotiation with other parties or prohibit communication with Industry Canada,” reads the policy clarification. “Furthermore, the department does not consider the release of imminent future plans and basic technical information as proprietary or strategic information. Accordingly, the Department does not consider the signature of an NDA as a valid reason to delay providing a Preliminary Information Package as described above.”

Delaying competitor access to towers and networks now tougher under new Industry Canada rules

News | April 20, 2009

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