Utilities big winners as Supreme Court dismisses CCTA appeal on pole access

Cable companies intend to seek a change to the Telecommunications Act after losing an appeal to the Supreme Court of Canada over access to utility company poles. By a 6-1 vote, the justices decided to let a Federal Court of Appeal decision stand (NL Update, May 16/03).In 2001, the Federal Court of Appeal ruled that the CRTC did not have the jurisdiction to set the rates utilities charge telcos and cablecos for pole access. While the commission does regulate the communications companies, utility firms fall under provincial control. The Canadian Cable Television Association (CCTA) appealed the ruling to the high court, arguing that the cable and telecommunications businesses are national in scope (NL, July 15/02). That cut no ice with the court. Although it ignored the constitutional issues raised in the proceeding, it questioned the CRTC's claim that utility poles are transmission lines and subject to federal jurisdiction."The CRTC's heavy reliance on the policy objectives of the Telecommunications Act and the Broadcasting Act was in error. The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation," Justice Charles Gonthier wrote on behalf of his colleagues. "Yet the CRTC relied on policy objectives to set aside Parliament's discernible intent as revealed by the plain meaning of s. 43(5), s. 43 generally and the Act as a whole." CCTA president and CEO Janet Yale views the decision as good news and bad news, reiterating that the constitutional matter was not ruled on. "What they simply said was the legislation as currently drafted did not allow the CRTC to set rates for access to electric utility poles. And in fact one of the dissenting opinions gave direction in effect as to the kind of wording changes to the legislation that would pass muster," she tells Network Letter. "So what we intend to do is seek a legislative amendment to the Telecommunications Act to close this loophole." Justice Michel Bastarache filed the lone dissent. The New Brunswick judge, appointed to the Supreme Court six years ago, believes the CRTC's expertise in technical matters deserves some attention. "An expert tribunal interpreting a technical provision of its enabling legislation is entitled to some deference," he wrote. A few pages later, he added, "If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded." One of the lawyers working on behalf of the utilities on the case thinks the deference provisions of the decision could be precedent-setting. Peter Ruby of Goodmans LLP says the court has decided that the CRTC and other tribunals cannot use policy provisions to infer powers. Jurisdiction must be conferred by legislation. "It doesn't change the powers of the CRTC at all. And it doesn't change the theory of the way the law looks at tribunals," he tells NL. "But I think it'll be interesting going forward because the CRTC does not get overturned by the Supreme Court all that often. So that may have some repercussions down the line." The Electricity Distributors Association (EDA), which represented a group of Ontario utilities in the case, and the Canadian Electricity Association were happy with the ruling. They have long felt the $15.89 rate per pole mandated by the CRTC is too low; the EDA wanted $40.53 per pole. "The rates imposed by the CRTC simply did not reflect the real costs incurred by to share access to their support structures," EDA CEO Charlie Macaluso said in a media release reacting to the Supreme Court's decision. "In effect, Supreme Court ruling means electricity consumers will not have to subsidize cable companies." If cablecos are unable to negotiate access to poles, they do have other options, Ruby notes. They can build their own networks, they can collocate with telcos, or they can use wireless technology.

Utilities big winners as Supreme Court dismisses CCTA appeal on pole access

News | May 20, 2003

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