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Report on Business Telecoms press Ottawa to intervene in construction disputes over 5G

Ian Scott, Chair and CEO of the Canadian Radio-television and Telecommunications Commission, is photographed during his keynote speech at the 2019 Canadian Telecom Summit, on June 2.

Fred Lum

Telecom operators are lobbying for changes to federal laws to make it easier to lay fibre-optic cables and install thousands of new antennas they say are needed for 5G technology.

The next generation of wireless networks will use new airwaves that cannot travel over long distances and carriers plan to build pared-down versions of cell towers placed closer together (known as “small cells”) to offer a blanket of coverage with faster speeds and more bandwidth. A Bank of Montreal report last week cited an estimate that Canadian carriers will need to deploy 250,000 small cells to “deliver 5G’s full potential."

But current efforts to lay more fibre cables, and the scale of expected small-cell deployments, are pitting the industry against municipalities and utilities, which own or operate the underground ducts, electricity poles, lamp posts and street lights to which the companies hope to attach their equipment.

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Carriers say they need one consistent set of rules across the country and want the federal telecom regulator, the Canadian Radio-television and Telecommunications Commission, to play that role while local authorities want to maintain more control over the use of their own infrastructure.

To support the lobbying push, a group of cable companies commissioned a legal opinion from former Supreme Court of Canada Justice Michel Bastarache. He concluded that it would be within the federal government’s jurisdiction – as part of its power over telecommunications – to enact a series of proposed legislative changes to give the CRTC clear authority on the issue.

Cable operators Shaw Communications Inc., Rogers Communications Inc., Cogeco Communications Inc. and Quebecor Inc., along with the Canadian Communication Systems Alliance (a lobby group for small telecom operators), filed Justice Bastarache’s opinion earlier this year as part of their submissions to an expert panel that is examining changes to Canada’s broadcast and telecom legislation. The panel has not yet made the submissions public, but Shaw provided a copy of the opinion to The Globe and Mail.

The Telecommunications Act gives the CRTC the power to regulate access to certain types of municipal infrastructure, such as rights of way, but its authority has been the subject of numerous legal challenges over the years. In many cases, the telecom industry has prevailed, with courts confirming the CRTC’s jurisdiction.

However, the law is not clear on whether the CRTC’s authority also extends to other city-owned property or if it covers wireless equipment (as well as older, wired telecom networks).

In addition, a 2003 Supreme Court ruling said the CRTC did not have the power to regulate the terms of access to power poles and provincial utility authorities have set their own rates. Last year, the Ontario Energy Board increased the rates hydro-electric companies can charge telecom operators to attach their equipment to electricity poles, a move that the cable companies have complained bitterly about. (This issue is less pressing for BCE Inc., the parent of Bell Canada, which has reciprocal agreements with many utilities in Ontario for access to each other’s poles.)

“If these changes aren’t made in a reasonable amount of time, you’ll have a patchwork across Canada. Some municipalities will embrace it and some utility companies will be easier to work with and those places are where the investment will go. So you might see an uneven distribution of 5G technology across the country,” Chima Nkemdirim, vice-president of regulatory affairs at Shaw, said of the proposed changes addressed in the Bastarache legal opinion.

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“The key thing here is to have a framework,” he said, adding that under the proposal, the CRTC would step in to establish rates only in cases where carriers could not reach an agreement with infrastructure owners.

The Federation of Canadian Municipalities disputes the need for legislative change. In its submission to the legislative review panel, it argues that many disagreements between telecoms and local authorities have been worked out over the years and there is now a “good degree of predictability."

“A collaborative approach is the more effective means of achieving continued improvements in the telecommunications framework,” the FCM said. "When it comes to managing operational or logistical issues, federal legislation is not designed to best address the types of issues that carriers ... and municipal officials manage and resolve on the ground on a daily basis.”

In a filing with the CRTC last month in advance of a review of the wireless industry, the Coalition for Cheaper Wireless Service called for broader dialogue between industry and all stakeholders "rather than attempting to force such a change down the throats of provincial and municipal authorities.” It also said cheaper access to hydro poles could lead to an increase in electricity rates.

In its own filing with the CRTC last month, Rogers argued that access to “passive infrastructure” (such as lamp posts and electricity poles) should be provided at “reasonable and economical rates.”

“The successful deployment of 5G networks is too strategic to be held hostage by utilities and other public infrastructure owners who seek to extract exorbitant fees in the interest of their particular constituents,” said Dave Watt, vice-president of regulatory affairs at Rogers.

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