The Supreme Court of Canada has confirmed that the CRTC does not have the power to decide whether cities and other public authorities must grant telecommunications companies access to their property to install 5G antennas.

In a decision released Friday, the country’s highest court rejected arguments from Telus Corp. and other appellant carriers against the CRTC’s 2021 finding that it does not have the jurisdiction to manage disputes between carriers and municipalities when it comes to wireless transmission infrastructure. 

The access regime outlined in the Telecommunications Act gives the CRTC the power to resolve disputes when companies seek to construct or maintain “transmission lines” on public property. The regulator’s position, which was upheld by the Federal Court of Appeal and now the Supreme Court, is that the term captures only wireline technology and excludes wireless technology, like small cells, which are often used for 5G deployment.

The judgment means that telecom companies must negotiate with municipalities and other public property owners to gain access for their wireless infrastructure. If an agreement cannot be reached, the CRTC cannot step in to set the terms of access. 

“Parliament intended to leave access to these sites up to good faith negotiation between carriers and the relevant public authorities such as municipalities,” wrote Justice Mary T. Moreau in the court’s judgment.

“If legislative change is desirable in light of evolving policy considerations, that is the role of Parliament.”

The central question for the court was the interpretation of the term “transmission line” in the access regime — specifically, whether it includes wireless infrastructure.

Following a broad review of mobile wireless services by the CRTC in 2019, the regulator concluded that “transmission line” does not include 5G small cell antennas or wireless infrastructure. The regulator reasoned that the ordinary meaning of the term referred only to wireline infrastructure, noting the distinction in the Telecommunications Act between “transmission line” and the broader defined term “transmission facility” which explicitly includes certain wireless systems. The CRTC found this aligned with Parliament’s awareness of wireless technology and its intent for “transmission line” to be more narrowly defined than “transmission facility.”

Telus and the other appellants, including Rogers Communications Inc. and Quebecor Inc., argued that “transmission line” should be interpreted dynamically to include 5G small cells, which they said are built into wireline networks and are integral to the transmission of telecommunications. They contended that excluding small cells from the access regime would hinder the efficient, nationwide deployment of 5G and potentially allow municipalities to act as barriers. 

Respondents, including the Federation of Canadian Municipalities (FCM), argued that the CRTC and appeals court correctly interpreted the act. They maintained that Parliament created distinct frameworks for wireline infrastructure access and wireless infrastructure siting (in the Radiocommunication Act), requiring negotiation with property owners for antenna sites. 

According to the Radiocommunication Act, the minister of industry has the power to “approve each site on which radio apparatus, including antenna systems, may be located, and approve the erection of all masts, towers and other antenna-supporting structures.”

The FCM also stated that there was no evidence municipalities were systematically obstructing 5G deployment. 

In a 7-2 decision, the Supreme Court dismissed the appeal.

The majority opinion, written by Justice Moreau — with Chief Justice Richard Wagner and Justices Andromache Karakatsanis, Malcolm Rowe, Nicholas Kasirer, Mahmud Jamal, and Michelle O’Bonsawin in agreement — upheld the CRTC’s conclusion that it does not have jurisdiction under the access regime for 5G small cell antennas on public property. Justices Suzanne Côté and Sheilah L. Martin were in favour of the appeal.

The majority agreed with the CRTC and the lower court that the term “transmission line” refers only to wireline infrastructure. Justice Moreau wrote that the ordinary meaning suggests a physical or tangible pathway, and the context of the act — including the distinction between “transmission line” and the broader “transmission facility” — supports this narrow interpretation. While acknowledging that small cells are hard-wired, the majority stated that this connection does not make the antenna itself a “transmission line.”

“It would be inconsistent with the text, context, and purpose of [the act] to say that Parliament intended the term to extend to antennas. Parliament’s balancing of the carriers’ interests against those of public authorities must be respected,” states Moreau’s judgment.

Justices Côté argued that the term “transmission line” includes 5G small cells, adding that it is “the only interpretation that allows the Telecommunications Act and the Radiocommunication Act to operate together effectively, as Parliament intended.”

The dissenting judges highlighted statements by Perrin Beatty, the minister of communications at the time the Telecommunications Act was passed, indicating an intent for the legislation to be “flexible for the future” and “technologically neutral.”

“Technological neutrality allows our laws to continue to operate without requiring constant amendment to adapt to constant technological change. It also provides certainty and predictability for wireless services carriers who carry out the very technological development on which we rely.”

In emphasizing the connection between both laws, Côté argued that the CRTC access regime outlined in the Telecommunications Act should precede the ministerial approval outlined in the Radiocommunication Act. 

Additionally, Justice Côté contended that denying CRTC oversight effectively gives municipalities a potential veto over access sites, which runs contrary to Parliament’s policy objectives for network development and the regulator’s exclusive jurisdiction over telecommunications. 

Telus calls for legislative reform; municipalities applaud court’s judgment

“While we respect today’s Supreme Court ruling, it creates challenges for efficient 5G deployment across Canada,” said Telus public affairs director Richard Gilhooley in a statement to The Wire Report. 

“This outcome underscores the need for legislative reform to align wireless and wireline infrastructure regulations, ensuring Canadians can fully benefit from advanced wireless technologies and reduce the complexity and delays caused at the municipal level.”

The FCM, on the other hand, applauded the court’s final decision.

“Today’s ruling upholds FCM’s long-standing position that telecommunications carriers must negotiate with municipal authorities before installing antennas on public property,” the association said in a statement to The Wire Report.

“While carriers are legally permitted to place wires and cables on public land, antennas raise different considerations related to safety, potential radio frequency interference, and aesthetics. Therefore, municipalities must have the authority to determine where antennas can be permitted.” 

It noted that the decision “also empowers municipalities to ensure that antenna installations do not impose hidden costs on local taxpayers.”

“The Supreme Court ruled that the deployment of 5G antennas must balance the interests of telecommunication carriers with those of municipalities. Parliament established this balance through a framework of mutually acceptable negotiated agreements, an approach the court found logical and reasonable.

“FCM recognizes the importance of 5G wireless technology to Canada’s economic growth and prosperity. Municipalities are committed to enabling its timely, efficient, and cost-effective deployment while safeguarding local planning, safety, and community interests.”

phalentm@thewirereport.ca