Deal to retain on-site wireless services at Pearson Airport all but dead, industry says

The Canadian wireless industry is set to simply walk away from providing on-site wireless services at Lester B. Pearson International Airport after the CRTC ruled that it would not prohibit the Greater Toronto Airport Authority from shutting down the carriers’ wireless equipment (RoW Update, July 5/02). Last week, the commission issued Telecom Decision 2002-38 denying the wireless carriers’ Part VII application requesting interim relief, which would have forced the GTAA to maintain services at the airport. Fifteen months of extensive talks produced nothing but acrimony as each side blamed the other for hindering progress in coming to a mutually acceptable arrangement. Discussions finally broke down last month after wireless carriers offered up an agreement that was ultimately turned down by the GTAA on June 17 (RoW Update, June 18/02). Don Woodford, director of government and regulatory affairs at Bell Mobility, explains that the carriers did everything possible to kick-start discussions within the past couple of weeks, but to no avail. "We’ve just reached the point … we’ve exhausted every reasonable means possible to get these guys back to the table," he tells Report on Wireless. The carriers will now switch their focus to coming up with a tenable technical solution to degenerating wireless services at the airport. The GTAA began to "power down" the carriers’ equipment on July 8. Rumour has it that Telus Mobility will be the last one cut off as GTAA technical staff is coordinating a July 10 shutdown for the company. At press time, there was no word on which company would be cut off first and second. Microcell Telecommunications Inc.’s current lease runs to Aug. 31, 2003, but the GTAA has indicated its intention to terminate the deal one year early. It was widely believed that the industry would challenge the CRTC’s July 5 ruling by either seeking leave to appeal with the Federal Court of Appeal or filing an appeal with the Governor-in-Council. Applicants have 30 days to file federal court appeals and 90 days to petition Cabinet. It now appears, however, that a challenge isn’t at the top of the carriers’ list of next steps. Woodford acknowledges that these are two possible avenues of obtaining injunctive measures against the GTAA, but says there is little chance of getting a desired outcome. "The legal view was the way that the commission rendered the decision on (July 5), that did not position us well for any type of injunctive appeal. We just wouldn’t likely have a good chance of winning that kind of appeal," he says. With the CRTC’s decision on the Part VII application, the wireless carriers lost their bid to keep wireless services up and running at Pearson. In filing their June 27 petition, the wireless carriers wanted the CRTC to intervene in the matter and issue an interim order forcing the GTAA to maintain wireless services at the airport. They argued that the airport should be considered a public place, thereby giving them the right to continue to offer services as long as necessary. The carriers cited several cases clarifying the definition of a public place. The GTAA disagreed with all of the wireless carriers’ arguments, presenting its own case law supporting its assessment that the airport wasn’t a public place. In citing several suits, and in some cases the same ones noted by the wireless carriers, the GTAA also made a claim that the operators didn’t meet the burden of proof to warrant the interim order. Ultimately, the commission ruled in the GTAA’s favour, stating that the wireless carriers didn’t meet the burden of proof necessary for the commission to intervene and issue the interim order. In its conclusion, the CRTC ruled that the carriers didn’t meet the three test requirements for irreparable damage as set out by the Supreme Court of Canada in the 1997 case of Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. and modified by the 1994 decision in RJR-MacDonald Inc. v. Canada (Attorney General). Interim relief is warranted when: there is a serious issue to be determined; the party seeking relief will suffer irreparable harm if the interim relief is not granted; and the balance of convenience, taking into account the public interest, favours retaining the status quo until the commission has disposed of the issues. While the wireless industry is obviously disappointed with the CRTC decision and regrets any inconvenience to the traveling public, the companies are now going to work in a concerted manner to implement a technical solution. Peter Barnes, president and CEO of the Canadian Wireless Tele-communications Association, says the focus now shifts to putting in new cell sites or adding to existing ones to provide service within the airport terminals from equipment located off airport grounds. "This would be (adding gear) to existing, new towers or antennas in the around and on the periphery of the airport to be able to serve inside the airport from the outside," Barnes explains. This isn’t a quick fix solution, he adds. "You can’t design a cell site, buy it and pop it up overnight." Efforts will also be directed to securing a number of cell site agreements in the shortest time possible. Woodford explains that discussions with Industry Canada on that front have already begun, but it will take us some months to rebuild the system. As well, Transport Canada will have to be involved for safety reasons in arranging cell site agreements since the proximity of proposed locations is close to the airport. While the wireless carriers work at a feverish rate to get cell site approvals and design new cell sites for the area, the more than 70,000 daily airport visitors will have to deal with what could be diminished wireless service. Woodford says it’s one thing to try and prove irreparable harm for legal purposes, "but in our view it’s the friggin’ customers who are being held hostage."

Deal to retain on-site wireless services at Pearson Airport all but dead, industry says

News | July 9, 2002

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