Appeals court reaffirms CRTC’s jurisdiction in municipal rights-of-way dispute

Municipalities could face a tougher time requiring cablecos and telcos to participate in provincial “call before you dig” registries following a Federal Court of Appeal (FCA) ruling last week that shores up the CRTC’s authority to decide such issues. The Oct. 13 decision ends a two-year battle between Shaw Communications Inc. and Wheatland County over the cableco’s request to use a right-of-way and other public property to extend fibre optics to a new subdivision in the south-central Alberta municipality, which has more than 3,000 km of roads and approximately 9,000 residents. The county has a bylaw requiring utilities using public rights-of-way to register their lines and equipment with Alberta One-Call, a single point of contact for more than 650 operators of buried facilities in Alberta, including major telecom carriers such as Bell Canada, Telus, MTS Allstream and Alberta Supernet. Similar locater services operate in British Columbia, Ontario and Quebec. Shaw deemed the requirement unreasonable, and asked Wheatland for permission to use its own locater service, called DIGSHAW, saying it provides equivalent service to Alberta One-Call but at a substantially less cost. The county refused, saying it would only approve Shaw’s request if it became a member of Alberta One-Call. That refusal prompted Shaw to file a Part VII application with the CRTC in October 2007. In Telecom Decision 2008-45, issued May 2008, the regulator granted Shaw access without the requirement to join Alberta One-Call. With financial backing from the Canadian Construction Association, Wheatland appealed that decision to the FCA, arguing that the CRTC’s jurisdiction does not apply to memberships in Alberta One-Call, which relates to road safety and management and not to the construction of a telecom transmission line. The county also cautioned that the commission’s decision also undermines the role of municipalities in managing their own rights-of-way. Drawing heavily on legal precedent, the FCA determined that the CRTC’s statutory powers are broad enough to impose conditions that impinge on a municipality’s authority over the management and safety of its highways. “In my view, it is within the scope of the expertise of the CRTC to decide whether to impose the regulatory burden on Shaw of requiring it to become a member of Alberta One-Call as a condition of granting it access to Wheatland’s right of way to construction its transmission line. The CRTC is better placed than the Court in this respect,” writes Justice John Evans.

Appeals court reaffirms CRTC’s jurisdiction in municipal rights-of-way dispute

News | October 19, 2009

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