SCC decision backs Rogers, federal jurisdiction in telecom

A nearly nine-year spat between Rogers Communications Inc. and a Quebec municipality over the location of a wireless tower came to an end Thursday, with the Supreme Court of Canada handing the company a victory and bolstering the federal government’s authority over telecommunications matters. The court’s unanimous decision sided with Rogers’ argument that the siting of radiocommunications infrastructure was under federal jurisdiction and that Châteauguay, a Montreal suburb, had acted unconstitutionally by issuing a notice of land reserve establishment that kept Rogers from building on its preferred location. The decision issued Thursday said Châteauguay’s notice “impairs the core of the federal power over radiocommunication in that it compromises the orderly development and efficient operation of radiocommunication in Canada.” In issuing the decision, the justices said the company’s inability to build its tower meant it was unable to meet its spectrum licence obligations to provide adequate network coverage. In an email statement, David Watt, Rogers’ senior vice-president of regulatory, called the decision “a win for Canadians who expect the fastest wireless speeds and best connections possible… That’s why Rogers is always investing in the latest technology to have the best networks possible.” Watt added: “That’s also why it’s so important to have a fair and transparent process to work with communities across the country as we strengthen and expand our world class networks,” and that Rogers “will always respect the communities we invest and operate in, meeting and beating health and environmental standards because we work here, live here and raise our kids here, too.” Rogers first approached the landowner of its preferred property in Châteauguay and reached an agreement to lease the land in December 2007. Under the Radiocommunication Act, Rogers also needed approval from the then-industry minister and to complete a 120-day public consultation process. The process began in March 2008, at which time Rogers informed the municipality of its intent to set up the tower. Châteauguay expressed opposition and asked Rogers to consider alternatives, but ultimately, the city issued a building permit in February 2009. In the intervening months, residents presented the city with a petition citing health concerns over the antenna system and the city and Industry Canada asked Rogers to do more consultation. By the time the minister was satisfied with the process in September 2009, Châteauguay had presented Rogers with an alternate location, which Rogers said it would consider if the city owned the land. But the landowner fought the city’s expropriation notice and by April 2010, Rogers was asking the industry minister to step in. In July, the minister said Rogers had met its requirements and approved Rogers’ installation of the wireless tower on the original property. That fall, Châteauguay served a notice of land reserve on the property, which kept any development from occurring for two years. In October 2012, the reserve was renewed for another two-year period. The matter was first heard in Quebec Superior Court in July 2013 and then taken to the Quebec Court of Appeal in May 2014. Eight of the Supreme Court justices were of the opinion that the city acted outside of its power by issuing the notice of reserve because it constitutes “an exercise of the power over radiocommunication, which is an exclusive federal power,” the majority decision read. In a minority opinion, judge Clément Gason wrote that the municipality was within its right to issue the notice — as the province has delegated to municipalities the authority to enact rules to safeguard their residents’ health and well-being and to manage its property — and that the issuing of the notice itself was not crossing into the realm of federal power over radiocommunication. However, Gascon agreed with his colleagues that in this case, the “choice of location or the siting of antenna systems is at the core” of federal power and that the notice of reserve “intrudes significantly on a vital and essential aspect of that power.” The issue of federal jurisdiction over telecommunications is likely to be raised again, following the passage of legislation in Quebec that will compel Internet service providers (ISPs) to block certain online gambling websites. As legal expert Michael Geist told The Wire Report, “I think we’re heading for a court battle.” — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

SCC decision backs Rogers, federal jurisdiction in telecom

News | 06/16/2016 5:39 pm EDT

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