Telus Communications Inc. v. Federation of Canadian Municipalities

Telus Communications Inc. v. Federation of Canadian Municipalities
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-04-13
Neutral citation
2023 FCA 79
File numbers
A-217-21
Decision Content
Date: 20230413
Docket: A-217-21
Citation: 2023 FCA 79
CORAM:
DE MONTIGNY J.A.
LOCKE J.A.
LEBLANC J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
and
FEDERATION OF CANADIAN MUNICIPALITIES and OTHERS
Respondents
Heard at Ottawa, Ontario, on December 12 and 13, 2022.
Judgment delivered at Ottawa, Ontario, on April 13, 2023.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
LOCKE J.A. LEBLANC J.A.
Date: 20230413
Docket: A-217-21
Citation: 2023 FCA 79
CORAM:
DE MONTIGNY J.A.
LOCKE J.A.
LEBLANC J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
and
FEDERATION OF CANADIAN MUNICIPALITIES and OTHERS
Respondents
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] Mobile wireless telecommunications services are a key component of the everyday life of Canadians and an important driver of economic competitiveness. As noted by the Canadian Radio-television and Telecommunications Commission (CRTC or Commission) in its Notice of Consultation 2019-57, Canadians rely on these services to communicate with each other, for entertainment, to conduct business, to interact with all levels of government, and to further their education.
[2] With the advent of fifth generation (5G) wireless networks, and given the importance of mobile wireless services, the CRTC undertook to review the associated regulatory framework to ensure that it remains relevant, that the needs of Canadians are met, and that the policy objectives set out in the Telecommunications Act, S.C. 1993, c. 38 (the Act) are being achieved. After inviting comments from stakeholders and holding public hearings, the CRTC issued Review of mobile wireless services, Telecom Regulatory Policy CRTC 2021-130 (CRTC Decision) on April 15, 2021. The decision is the result of a comprehensive review by the Commission of its regulation of wireless services under the Act.
[3] The CRTC Decision is quite comprehensive, being 128 pages long, and addresses three main issues: (1) competition in the retail mobile wireless service market; (2) the current regulatory framework for wholesale mobile wireless services, with a focus on wholesale mobile virtual network operator (MVNO) access service; and (3) the future of mobile wireless services in Canada, and how to reduce barriers to infrastructure deployment.
[4] This is the decision that gave rise to the appeal before us. This appeal, however, raises only two discrete issues: (1) whether wireless transmission infrastructure is excluded from the regulatory scheme established by the Act for access by carriers to highways and other public places for the placement and operation of telecommunications infrastructure (the access issue); and (2) whether the CRTC can direct the national wireless carriers to provide seamless roaming (the roaming issue).
[5] After having carefully considered the appeal record as well as the written and oral representations of the parties, I have come to the conclusion that the CRTC Decision should be upheld. In my view, the CRTC did not err in determining that a proper interpretation of the words “transmission line” in sections 43 and 44 of the Act refers to physical wire and cables. Accordingly, I find that its jurisdiction does not extend to resolving disputes regarding access to municipal and other public infrastructure for the purposes of constructing, operating and maintaining mobile wireless infrastructure. Moreover, the CRTC’s decision to mandate the condition of seamless roaming in the provision of wholesale roaming services fell squarely within its power to impose conditions of service, and does not conflict with the conditions of spectrum licence determined by the Minister of Industry (the Minister) pursuant to the Radiocommunication Act, R.S.C. 1985, c. R-2.
[6] These are my reasons for so concluding.
I. Background [7] In the mid-1990s, the Commission forbore, to a significant extent, from regulating the mobile wireless services offered by wireless carriers. While being of the view that the provision of wireless telecommunications constituted the provision of a “telecommunications service” within the meaning of the Act, and that Canadian carriers providing such services were subject to Commission regulation, the Commission was of the view that, pursuant to section 34 of the Act, it was appropriate to refrain from exercising some or all of its powers. It came to that conclusion on the basis that there was sufficient competition to protect the interests of users, thereby enabling market forces to guide the sector’s growth: see, for example, Telecom Decisions CRTC 94-15 and 96-14. This meant, among other things, that wireless carriers were not required to obtain prior Commission approval for the rates that they charged.
[8] As the retail mobile wireless service market grew through the late 1990s and early 2000s, three national wireless carriers emerged as the main and often only choices for Canadians: Bell Mobility Inc. (Bell), Rogers Communications Canada Inc. (Rogers), and TELUS Communications Inc. (Telus). The high cost of investment in network facilities, together with access to spectrum, were and still are significant barriers to market entry (CRTC Decision at paras. 95 and 101-102). Since then, targeted regulatory measures have reduced some of these barriers to entry, thus facilitating the emergence of new regional carriers. Some of these regulatory measures include the Minister setting aside spectrum licences for new or smaller carriers in spectrum auctions, and mandating spectrum licensees to provide wholesale roaming services at commercially negotiated rates in the conditions of licence.
[9] The Commission also monitored market developments and held public proceedings to consider a variety of regulatory measures to protect consumers and foster competition. In 2013, for example, it imposed a mandatory code of conduct on providers of retail mobile wireless services (see The Wireless Code (3 June 2013), Telecom Regulatory Policy CRTC 2013-271). In Regulatory framework for wholesale mobile wireless services (5 May 2015), Telecom Regulatory Policy CRTC 2015-177 (TRP 2015-177), the Commission mandated the provision of wholesale roaming service by the national wireless carriers to competitors. At the time, the Commission found that there was insufficient evidence in the record to go further and to impose seamless roaming as a condition of service. The advantage of seamless roaming is significant for wireless telecommunications service users, as it involves, to quote the definition provided by the CRTC in the impugned decision (at para. 392), “handing off and receiving calls and data sessions to and from other networks without any interruption in service”.
[10] Since TRP 2015-177, which established the current wholesale mobile wireless service regulatory framework, the competitive and technological environments surrounding the wireless service industry have evolved in many respects. Accordingly, the CRTC issued on February 28, 2019 Telecom Notice of Consultation CRTC 2019-57 for the purpose of initiating a broad review of mobile wireless services and their associated regulatory framework, to ensure that “(i) it remains relevant, (ii) the needs of Canadians are met, and (iii) the policy objectives set out in section 7 of the [Act] are being achieved” (Review of mobile wireless services (28 February 2019), Telecom Notice of Consultation CRTC 2019-57 at para. 3 (Notice of Consultation)).
[11] In the Notice of Consultation, the Commission noted that the mobile wireless service market is on the verge of a major transformation with the introduction of 5G wireless technology. Because that technology relies on the installation of a dense network of small cell antennas providing wireless coverage over a more limited geographical area (as opposed to the large macro cells placed on wireless tower infrastructure used for previous generations of wireless technology), the wireless carriers will be required to make significant investments in network infrastructure and to negotiate with a variety of stakeholders to secure adequate access to fibre facilities, rights of way, and small-cell sites. Indeed, according to the evidence of the Federation of Canadian Municipalities (FCM), “[e]stimates that seem to be widely accepted indicate that providing coverage to the majority of the Canadian population will require 250,000 to 300,000 such installations” (Federation of Canadian Municipalities, Further Comments to Notice of Hearing 2019-57 Review of Mobile Wireless Services, 22 November 2019 at para. 8). This is obviously a much larger number than the 13,000 or so cell phone towers that currently provide services to Canadians, according to Industry, Science and Economic Development Canada (ISED) (Government of Canada, “Facts about Towers” (last modified (20 November 2018), online: Industry, Science and Economic Development Canada <https://ised-isde.canada.ca/site/spectrum-management-telecommunications/en/safety-and-compliance/facts-about-towers>).
[12] Needless to say, access to various types of physical infrastructure to install these numerous small cells will be required. These include light standards, lamp posts, bus shelters and other municipal structures situated on public land, and existing telecommunications wireline support structures and support structures owned by provincial energy utilities. Importantly, however, each of these small cells also has to be hard-wired into the carrier’s wireline network to carry the data to other points, including to other antennas, so that it can reach wireless users elsewhere. To that extent, the 5G network is no different from the traditional cell phone antennas installed on tall towers and buildings over the last decade.
[13] The Notice of Consultation invited parties to provide comments on whether there was a need for any adjustments or improvements to the mandated wholesale roaming policy established in the 2015 Decision, stating that “as wireless technology develops and the market continues to evolve, there may be aspects of the Commission’s existing wholesale roaming policy that may need to be modified or improved” (Notice of Consultation at para. 33). Parties were also invited to provide their views on whether any further regulatory measures are required to reduce barriers to the deployment of cellular infrastructure.
[14] Public hearings were held from February 18 to 28, 2020. Due to the Covid-19 pandemic, deadlines for the filing of final submissions were delayed. The Commission’s decision was issued on April 15, 2021.
II. The impugned decision [15] As previously mentioned, the decision is very comprehensive and covers a lot of ground. It is structured in four parts: (1) the state of competition in the retail market, which includes a market power analysis (CRTC Decision at paras. 28-157); (2) regulatory measures at the wholesale level, which include measures related to wholesale MVNO access service, wholesale roaming service and seamless roaming, and access to infrastructure (CRTC Decision at paras. 158-489); (3) regulatory measures at the retail level to support competition (CRTC Decision at paras. 490-600); (4) other issues raised by the parties during the proceeding (CRTC Decision at paras. 601-630).
[16] The key aspects of the decision for the purposes of this appeal are the paragraphs dealing with the roaming issue (CRTC Decision at paras. 392-411) and the access issue (CRTC Decision at paras. 423-489).
[17] As it did for other aspects of its decision, the Commission first summarized the positions of the parties. On the roaming issue, it noted that seamless roaming is important for regional wireless carriers because it enables them to offer a higher quality of service to Canadians and therefore to be more competitive. Shaw and Vidéotron, in particular, submitted that the absence of seamless roaming is the biggest barrier to their growth, particularly outside urban centres, and that dropped calls at the periphery of their networks was the main reason why their customers switch to the national wireless carriers’ services. The national carriers and SaskTel, on the other hand, pointed to the significant technical and engineering obstacles that the design and implementation of seamless roaming would pose, and to the significant costs that it would involve.
[18] Having considered these submissions, the CRTC found that mandated seamless roaming would benefit both consumers, who would have fewer dropped calls, and competition since regional carriers would offer a higher quality of service. The CRTC noted that if prioritized, seamless roaming could be implemented faster than what was proposed by the national wireless carriers. Updates would be limited to cell sites at network border locations and technical information required to maintain seamless roaming could be exchanged using existing processes, significantly reducing the cost of implementation. In the end, the CRTC was of the view that although cost estimates for implementing seamless roaming varied, none of the cost estimates outweigh the overall benefit of seamless roaming to competition and consumers.
[19] Given that market forces cannot be relied upon to ensure that seamless roaming is available to all carriers and their retail customers, the CRTC decided that mandating seamless roaming and making it subject to cost-based rates would be an efficient and proportionate means of furthering its policy objectives. It also considered that this functionality is not a new service but rather an additional condition under which the existing mandated wholesale roaming service must be offered. Accordingly, the CRTC directed the national carriers to file for approval tariffs for wholesale roaming service which include support for seamless roaming and to begin offering seamless roaming within one year of the date of its decision. The CRTC added that the additional costs involved in the implementation of seamless roaming could be reflected in the tariffed rates.
[20] As for access to infrastructure, the Commission grouped the parties’ comments into four categories: (1) delays or denials associated with access to incumbent local exchange carrier (ILEC) support structures; (2) small cell attachments and existing ILEC support structure tariffs; (3) access to towers and sites; and (4) access to municipal infrastructure.
[21] Across Canada there are ILEC owned or controlled support structures. These include poles, which support aerial facilities such as steel wires which themselves support transmission facilities, and conduits, capable of containing communications facilities and are usually located beneath ground level. In Canada, the ILECs are Bell, Telus and SaskTel in Saskatchewan; Rogers is not an ILEC. Many wireless carriers reported difficulties in accessing ILEC support structures, but the CRTC concluded that the evidence was insufficient to determine whether, or what, modifications to the ILEC regulations or tariffs would be appropriate. The evidence provided was anecdotal and without a better understanding of the reason for those denials, the CRTC determined it would be inappropriate to adopt specific regulatory measures at this time.
[22] As for small cell attachments and existing ILEC support structure tariffs, the CRTC rejected Telus’ proposal to amend the existing support structure tariffs originally designed to facilitate wireless competition because attachments for mobile wireless services give rise to different issues and are different from Wi-Fi equipment. The CRTC determined that there was insufficient evidence before it to determine if small cells are sufficiently different from Wi-Fi deployments. Consequently, it could not determine if amendments to the existing ILEC tariffs are warranted.
[23] The Commission similarly determined that it was not necessary for it to take any additional action in relation to tower and site sharing. It noted that it had not been approached to resolve any dispute alleging undue preference or unjust discrimination with regard to access to towers or sites.
[24] Finally, the Commission determined that sections 43 and 44 of the Act do not grant it jurisdiction to adjudicate disputes involving access to public places to install mobile wireless transmission facilities. These provisions grant Canadian carriers access to “any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines” (the Act, s. 43(2)). They also grant the Commission powers to regulate carriers’ access to public places and to regulate disputes between carriers and municipalities.
[25] That determination rested heavily on the Commission’s interpretation of the term “transmission line” in the relevant statutory provisions. The Commission first noted that the term “transmission facility” is defined in section 2 of the Act as “any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus”. That definition, in the Commission’s view, shows that Parliament was aware of the possibility to transmit telecommunications wirelessly, and that a transmission facility would clearly include a radio apparatus such as a small cell for 5G wireless technology. Given that Parliament used the distinct and undefined term “transmission line” in sections 43 and 44, the Commission reasoned that it must mean something different. It further held that, “given the all-encompassing scope of the term “transmission facility”, it is very likely that “transmission line” is meant to have a narrower meaning” (CRTC Decision at para. 482).
[26] The Commission then turned to dictionary definitions of “line” and “transmission line” and found that they were varied but contemplate for the most part a “physical and tangible pathway” (CRTC Decision at para. 483). Considering the importance of its conclusion on this topic, it is worth quoting from the CRTC Decision:
484. In light of the above, the Commission considers that, in using the term “transmission line”, Parliament meant to capture “transmission cables” and “transmission wires”, both of which are identified in the Act’s definition of “transmission facility” as types of such facilities.
485. Far from frustrating Parliament’s intent, an interpretation limiting transmission lines to transmission cables and wires appropriately recognizes the broader statutory scheme enacted by Parliament, including the scheme of the closely related Radiocommunication Act, which provides the Minister of Industry with the power to approve sites for the placement of radio apparatus, as set out in subsection 5(1) of that Act.
[27] Finally, although several parties argued that there is a need for a streamlined and expedited dispute resolution mechanism to settle disputes over rates, terms and conditions between municipalities and carriers, the CRTC determined that no further action was necessary or appropriate at this time. Even assuming that these issues were within the Commission’s jurisdiction, it was of the view that existing policies and procedures were sufficient to address them.
III. Issues [28] This appeal by Telus raises two issues:
Did the CRTC err in concluding that the term “transmission line” used in sections 43 and 44 of the Act does not include wireless telecommunications infrastructure, and therefore that it could not resolve disputes with municipalities and other public authorities relating to carrier access to highways and other public places?
Did the CRTC exceed its jurisdiction by imposing seamless roaming on the national carriers?
[29] Bell and Rogers, the two other national carriers, broadly support the position and arguments put forward by Telus, and added some of their own arguments.
[30] A group of regional wireless carriers (Bragg Communications Inc., Cogeco Communications Inc., Québecor Média Inc., Vidéotron Ltd. and Xplore Inc.), commonly represented before this Court, participated in this appeal as a respondent to support the decision of the CRTC with respect to seamless roaming. Along with Ice Wireless Inc. (Ice Wireless), a regional mobile wireless carrier that primarily operates in Canada’s North, they submitted that the CRTC did not err in law and/or jurisdiction when it imposed the condition of service requiring the national wireless carriers to offer seamless roaming. Neither of these two respondents took a position on the access issue.
[31] Electricity Canada (EC) and the FCM responded only to the access issue and supported the CRTC’s finding that its jurisdiction does not extend to resolving disputes regarding access to municipal and other public infrastructure for the purposes of constructing, operating and maintaining mobile wireless infrastructure. EC is the national industry association for the electricity industry in Canada and represents power utilities. The FCM is a national organization representing Canadian municipalities of all sizes, and is dedicated to advocating for municipalities on matters under federal jurisdiction.
[32] His Majesty the King in right of the province of British Columbia (BC) also made submissions in relation only to the access issue. Aside from supporting the position of the FCM and of EC with respect to the statutory interpretation of section 43 of the Act and the term “transmission line”, the gist of BC’s submissions are its concern that it would lose its current ability to enter into agreements with carriers seeking to install mobile wireless infrastructure on provincial rights of way and structures and to charge market rent to the carriers for this access. BC is also concerned that if mobile wireless infrastructure falls within the Commission’s jurisdiction, the Commission’s policies would govern the access carriers have, rather than the province.
[33] Before dealing with all these arguments, I shall first address a jurisdictional issue raised by EC. Both in its written submissions and orally, counsel for EC argues that the CRTC’s conclusion on the access issue is not subject to appeal because it is not a “decision” within the scope of section 64 of the Act, and is not the outcome of an adjudication over access but was the result of a policy consultation.
IV. The legislative framework [34] To better understand the issues raised in this appeal and the arguments put forward by the parties, it is essential to have a good grasp of the legislative scheme governing telecommunication and radiocommunication in Canada. Equally important are the roles played by the CRTC when imposing conditions of service to Canadian carriers, and by the Minister in issuing and amending the conditions of licence authorizing carriers to use specific radiofrequency bands for the provision of their services, and in approving the location at which wireless facilities such as antennas may be situated.
[35] As the Supreme Court held in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489 [Reference re Broadcasting] (at paras. 34 and 37), the Broadcasting Act, S.C. 1991, c. 11 the Radiocommunication Act and the Telecommunications Act are part of an “interrelated scheme”; while they have different aims, their subject matters will overlap in certain circumstances. As a result, persons regulated under one of the Acts may well be regulated under one of the other Acts as well.
[36] Broadly speaking, the Telecommunications Act’s main objective is the supervision of telecommunications services (voice and data) provided to the public throughout Canada and, as an accessory, the regulation of facilities-based telecommunications common carriers. The Act falls under the responsibility of the Minister of Innovation, Science and Economic Development, but for all intents and purposes, the primary responsibility for the implementation and administration of the Act falls to the CRTC.
[37] Pursuant to section 47 of the Act, the CRTC is required to consider the policy objectives set out in section 7 of the Act when exercising any of its powers:
47 The Commission shall exercise its powers and perform its duties under this Act and any special Act
47 Le Conseil doit, en se conformant aux décrets que lui adresse le gouverneur en conseil au titre de l’article 8 ou aux normes prescrites par arrêté du ministre au titre de l’article 15, exercer les pouvoirs et fonctions que lui confèrent la présente loi et toute loi spéciale de manière à réaliser les objectifs de la politique canadienne de télécommunication et à assurer la conformité des services et tarifs des entreprises canadiennes avec les dispositions de l’article 27.
(a) with a view to implementing the Canadian telecommunications policy objectives and ensuring that Canadian carriers provide telecommunications services and charge rates in accordance with section 27; and
[blank]
(b) in accordance with any orders made by the Governor in Council under section 8 or any standards prescribed by the Minister under section 15.
[blank]
[38] These objectives are set out in section 7 of the Act, and include the following:
7 It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives
7 La présente loi affirme le caractère essentiel des télécommunications pour l’identité et la souveraineté canadiennes; la politique canadienne de télécommunication vise à :
(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;
a) favoriser le développement ordonné des télécommunications partout au Canada en un système qui contribue à sauvegarder, enrichir et renforcer la structure sociale et économique du Canada et de ses régions;
(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;
b) permettre l’accès aux Canadiens dans toutes les régions — rurales ou urbaines — du Canada à des services de télécommunication sûrs, abordables et de qualité;
(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;
c) accroître l’efficacité et la compétitivité, sur les plans national et international, des télécommunications canadiennes;
…
…
(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;
f) favoriser le libre jeu du marché en ce qui concerne la fourniture de services de télécommunication et assurer l’efficacité de la réglementation, dans le cas où celle-ci est nécessaire;
…
…
(h) to respond to the economic and social requirements of users of telecommunications services; and
h) satisfaire les exigences économiques et sociales des usagers des services de télécommunication;
[39] Section 8 of the Act authorizes the Governor in Council to “issue to the Commission directions of general application on broad policy matters with respect to the Canadian telecommunications policy objectives”. An order made under that section is binding on the Commission (the Act, ss. 11(1) and 47(b)). At the time the decision under appeal was issued, two directions given by the Governor in Council were particularly relevant. The first one, issued in 2006, directed the Commission, when relying on regulation, to use measures that satisfy four criteria, one of them being:
1(b)(iv) if they relate to network interconnection arrangements or regimes for access to networks, buildings, in-building wiring or support structures, ensure the technological and competitive neutrality of those arrangements or regimes, to the greatest extent possible, to enable competition from new technologies and not to artificially favour either Canadian carriers or resellers
Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, S.O.R./2006-355
[40] The second direction, released in 2019, directs the CRTC to consider the extent to which its decisions “enable innovation in telecommunications services, including new technologies and differentiated service offerings”: Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives to Promote Competition, Affordability, Consumer Interests and Innovation, S.O.R./2019-227, para. 1(a)(vi).
[41] Also of particular relevance for this appeal are the following definitions found in section 2 of the Act:
Canadian carrier means a telecommunications common carrier that is subject to the legislative authority of Parliament; (entreprise canadienne)
entreprise canadienne Entreprise de télécommunication qui relève de la compétence fédérale. (Canadian carrier)
telecommunications means the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system; (télécommunication)
télécommunication La transmission, l’émission ou la réception d’information soit par système électromagnétique, notamment par fil, câble ou système radio ou optique, soit par tout autre procédé technique semblable. (telecommunications)
telecommunications facility means any facility, apparatus or other thing that is used or is capable of being used for telecommunications or for any operation directly connected with telecommunications, and includes a transmission facility; (installation de télécommunication)
installation de télécommunication Installation, appareils ou toute autre chose servant ou pouvant servir à la télécommunication ou à toute opération qui y est directement liée, y compris les installations de transmission. (telecommunications facility)
transmission facility means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus. (installation de transmission)
installation de transmission Tout système électromagnétique — notamment fil, câble ou système radio ou optique — ou tout autre procédé technique pour la transmission d’information entre des points d’arrivée du réseau, à l’exception des appareils de transmission exclus. (transmission facility)
[42] Parliament expressly empowered the CRTC to subject the provision of telecommunications services by a Canadian carrier to conditions (the Act, s. 24). There is no dispute that the national carriers – Telus, Bell and Rogers – are Canadian carriers and that wholesale roaming is a telecommunications service within the meaning of section 2 of the Act.
[43] To achieve the objectives of Canadian telecommunications policy, it is essential to ensure the efficient, widespread deployment of telecommunications infrastructure. To that effect, both the Act and its predecessor, the Railway Act, R.S.C. 1985, c. R-3 (ss. 327-330), establish a regulatory scheme governing access by carriers to highways and other public places. In particular, sections 43 and 44 of the Act provide carriers with a qualified right to access highways and other public places for the purposes of constructing, maintaining and operating their transmission lines. It is worth pointing out at this stage that the Act provides no definition for the words “transmission line”, which replaced the narrower references to “telegraph or telephone lines” in the Railway Act (s. 327). The right to access highways and other public places for the construction of facilities is subject to the consent of the public authority with jurisdiction over the highway or public place to the construction. Where the carrier and public authority are unable to reach an agreement on the terms of access, the Commission may set the terms at the request of either party. The full text of these provisions reads as follows:
Entry on public property
Accès aux lieux publics
43(2) Subject to subsections (3) and (4) and section 44, a Canadian carrier or distribution undertaking may enter on and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines and may remain there for as long as is necessary for that purpose, but shall not unduly interfere with the public use and enjoyment of the highway or other public place.
43(2) Sous réserve des paragraphes (3) et (4) et de l’article 44, l’entreprise canadienne et l’entreprise de distribution ont accès à toute voie publique ou tout autre lieu public pour la construction, l’exploitation ou l’entretien de leurs lignes de transmission, et peuvent y procéder à des travaux, notamment de creusage, et y demeurer pour la durée nécessaire à ces fins; elles doivent cependant dans tous les cas veiller à éviter toute entrave abusive à la jouissance des lieux par le public.
Consent of municipality
Approbation municipale
(3) No Canadian carrier or distribution undertaking shall construct a transmission line on, over, under or along a highway or other public place without the consent of the municipality or other public authority having jurisdiction over the highway or other public place.
(3) Il est interdit à l’entreprise canadienne et à l’entreprise de distribution de construire des lignes de transmission sur une voie publique ou dans tout autre lieu public — ou au-dessus, au-dessous ou aux abords de ceux-ci — sans l’agrément de l’administration municipale ou autre administration publique compétente.
Application by carrier
Saisine du Conseil
(4) Where a Canadian carrier or distribution undertaking cannot, on terms acceptable to it, obtain the consent of the municipality or other public authority to construct a transmission line, the carrier or distribution undertaking may apply to the Commission for permission to construct it and the Commission may, having due regard to the use and enjoyment of the highway or other public place by others, grant the permission subject to any conditions that the Commission determines.
(4) Dans le cas où l’administration leur refuse l’agrément ou leur impose des conditions qui leur sont inacceptables, l’entreprise canadienne ou l’entreprise de distribution peuvent demander au Conseil l’autorisation de construire les lignes projetées; celui-ci peut, compte tenu de la jouissance que d’autres ont des lieux, assortir l’autorisation des conditions qu’il juge indiquées.
Access by others
Accès
(5) Where a person who provides services to the public cannot, on terms acceptable to that person, gain access to the supporting structure of a transmission line constructed on a highway or other public place, that person may apply to the Commission for a right of access to the supporting structure for the purpose of providing such services and the Commission may grant the permission subject to any conditions that the Commission determines.
(5) Lorsqu’il ne peut, à des conditions qui lui sont acceptables, avoir accès à la structure de soutien d’une ligne de transmission construite sur une voie publique ou un autre lieu public, le fournisseur de services au public peut demander au Conseil le droit d’y accéder en vue de la fourniture de ces services; le Conseil peut assortir l’autorisation des conditions qu’il juge indiquées.
Applications by municipalities and other authorities
Demande d’une municipalité ou autre administration publique
44 On application by a municipality or other public authority, the Commission may
44 Sur demande d’une administration municipale ou autre administration publique, le Conseil peut :
(a) order a Canadian carrier or distribution undertaking, subject to any conditions that the Commission determines, to bury or alter the route of any transmission line situated or proposed to be situated within the jurisdiction of the municipality or public authority; or
a) soit obliger, aux conditions qu’il fixe, l’entreprise canadienne ou l’entreprise de distribution à enfouir les lignes de transmission qu’elles ont, ou projettent d’avoir, sur le territoire de l’administration en question ou à en modifier l’emplacement;
(b) prohibit the construction, maintenance or operation by a Canadian carrier or distribution undertaking of any such transmission line except as directed by the Commission.
b) soit ne leur en permettre la construction, l’exploitation ou l’entretien qu’en exécution de ses instructions.
[44] In Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476 [Barrie] the Supreme Court clarified that subsection 43(5) of the Act does not include power utilities distribution lines, and therefore does not grant the CRTC jurisdiction with respect to telecommunications companies’ access to power poles belonging to power utilities undertakings.
[45] The Radiocommunication Act, on the other hand, focuses on the regulation of the equipment and activities that make use of the radio spectrum, as well as the allocation and management of the radio spectrum itself. It is implemented and administered primarily by Industry Canada, under the responsibility of the Minister.
[46] Paragraphs 5(1)(a)(i.1) and (b) of the Radiocommunication Act give the Minister the ability to issue licences authorizing carriers to use specific radiofrequency bands for the provision of their services, including mobile wireless services (Industry Canada, Spectrum Management and Telecommunications: Framework for Spectrum Auctions in Canada (Issue 3: March 2011), s. 1). Pursuant to the Radiocommunication Act, the Minister may also fix and amend terms and conditions of licences:
5 (1) Subject to any regulations made under section 6, the Minister may, taking into account all matters that the Minister considers relevant for ensuring the orderly establishment or modification of radio stations and the orderly development and efficient operation of radiocommunication in Canada,
5 (1) Sous réserve de tout règlement pris en application de l’article 6, le ministre peut, compte tenu des questions qu’il juge pertinentes afin d’assurer la constitution ou les modifications ordonnées de stations de radiocommunication ainsi que le développement ordonné et l’exploitation efficace de la radiocommunication au Canada :
(a) issue
a) délivrer et assortir de conditions :
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(i.1) spectrum licences in respect of the utilization of specified radio frequencies within a defined geographic area,
(i.1) les licences de spectre à l’égard de l’utilisation de fréquences de radiocommunication définies dans une zone géographique déterminée, et notamment prévoir les conditions spécifiques relatives aux services pouvant être fournis par leur titulaire,
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(b) amend the terms and conditions of any licence, certificate or authorization issued under paragraph (a);
b) modifier les conditions de toute licence ou autorisation ou de tout certificat ainsi délivrés;
[47] In exercising those powers, the Minister “may” have regard to the objectives of the Canadian telecommunications policy set out in section 7 of the Act (Radiocommunication Act, s. 5(1.1)). This is to be contrasted with the CRTC, which “shall” exercise its powers under the Act with a view to implementing those same Canadian telecommunications policy objectives (the Act, s. 47). Apart from the orderly establishment or modification of radio stations and the orderly development and efficient operation of radiocommunication in Canada (see the preamble of subsection 5(1) of the Radiocommunication Act), the Minister must also consider the objectives set out in section 5 of the Department of Industry Ac