Court rejects Telus challenge to CRTC’s wholesale roaming, municipal infrastructure decisions

The Federal Court of Appeal has rejected a Telus Corp. court challenge, supported by BCE Inc. and Rogers Communications Inc. that sought to do away with certain elements of the CRTC's 2021 decision flowing out of the regulator's wireless review. While the most watched element of the wireless review decision was the decision to institute a form of mandated access to incumbent wireless networks for some regional wireless providers, the decision also mandated that incumbents provide seamless roaming. In the decision, the CRTC also determined that it did not have the jurisdiction to establish a regulatory regime governing access to public infrastructure for technology upgrades. In May of 2021, Telus appealed those latter two elements of the decision, quickly receiving support from Bell and Rogers, and opposition from the Federation of Canadian Municipalities to the company's infrastructure complaint. The CRTC, Telus had argued in appeal, erred in the determination by concluding that key language in the Telecommunications Act limited the commission to dealing with disputes involving transmission wires and cables, and not newer wireless infrastructure. The Telecommunications Act gives the CRTC authority to resolve disputes with municipalities over "transmission lines," which the CRTC decided in the wireless review did not extend to the expansion of network facilities to include equipment like small cells, often used for 5G deployment. This means that the CRTC would not have the authority to adjudicate or resolve disputes between carriers and municipalities over the deployment of such technologies on public infrastructure. Telus, Bell, and Rogers argued that the commission did not interpret the language of the communication act in an appropriately dynamic manner that would conceive of a transmission line as simply a "path for the conveyance of intelligence, "whether the communication is conveyed through wires or wirelessly," according to Justice Yves de Montigny's summary of the company's argument. The CRTC, de Montingy wrote in Friday's decision, got it right. "In trying to determine the true meaning of the expression 'transmission line', the Commission rightly turned to the ordinary and natural meaning of these words, but also to the surrounding context and the purpose of the provision," he wrote. "Telus attempted to escape from this straightforward, common sense interpretation of the word “line” by relying on the creative (albeit distorted) notion that a line is merely a path between two points," de Montigny continued. "A transmission line would therefore be a path for conveyance of intelligence, either through wires or wirelessly. Such an interpretation, in my humble opinion, stretches credibility." When it comes to the issue of seamless roaming, Telus had argued that the CRTC exceeded its jurisdiction by directing carriers to offer it, in that the direction violated the conditions of license on spectrum use issued by the Minister of Innovation, Science, and Industry. While it is no doubt true that the Minister is the only one who can amend the terms and conditions of a spectrum licence Radiocommunication Act, that section must be read in the broader context of the Act and of the Department of Industry Act," de Montigny wrote. "When read together, the relevant provisions of these three Acts do not lend themselves to an interpretation that would deprive the CRTC of its jurisdiction to regulate telecommunications services." Instead, de Montigny added, the Minister and the CRTC "each exercise their powers in pursuit of complementary objectives." The decision is significant because whether or not the CRTC can resolve disputes between carriers and municipalities when it comes to the use of infrastructure will affect just how 5G will be rolled out and updated in the coming years. As carriers need to make more and more adjustments to their network infrastructure in the coming years, municipalities will have more power in those negotiations if the Federal Court of Appeal's decision ultimately stands. -- Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca

Court rejects Telus challenge to CRTC’s wholesale roaming, municipal infrastructure decisions

News | 04/14/2023 4:55 pm EDT

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