Calgary asking to appeal CRTC decision in bylaw case

The CRTC misunderstood the scope of the issues when it denied an application by Calgary to formally require telecoms to go through its new bylaw — and get the city’s consent — to access municipal infrastructure, the city said in new court documents. Earlier this year, the CRTC denied an application by the city asking the CRTC to approve its municipal rights-of-way bylaw, which would govern the telecoms’ access to parts of the city for builds. The regulator instead told the parties to hash it out in negotiations, including with BCE Inc., Rogers Communications Inc., Shaw Communications Inc., and Telus Corp. Now the city is asking the Federal Court of Appeal to look at the case. In its grounds for appeal, dated Feb. 25, the city said the CRTC erred when it failed to give adequate weight to whether the Telecommunications Act gave the city the legal authority to authorize telecoms to gain its consent, through the bylaw, for infrastructure access. Instead, the CRTC precluded that point by making paramount the issue of the telecoms’ refusal to agree to the terms, Calgary argued, therefore failing to appropriately balance the rights of both sides of the issue. “The question to be determined was not whether the Carriers would consent to the By-law, but rather what were the respective rights of each party” under section 43(3) of the Telecommunications Act, which says the telecom must obtain the consent of the municipality to access a public place. In this case, the court document reads, the CRTC failed to consider the question of whether section 43(3) allows a “municipality to give consent via by-law” and whether a declaration should be granted. In further support of its appeal application, Calgary said the CRTC also did not give Calgary appropriate time to address the issues related to its focus on the telecoms’ refusal and the regulator did not provide adequate discussion on the substantive issues brought by the city in its decision. Before becoming law at the beginning of 2018, the bylaw was challenged by the telecoms in an Alberta court in early 2017, after it was passed by the city in November 2016. Simultaneously, as the court deliberated on the issue, the CRTC decided to continue the city’s Part 1 application on the matter. An Alberta court in late 2018 ruled that the bylaw lacks jurisdiction over telecom builds and the federal Telecommunications Act has sole authority over them. The city turned around and appealed the decision to the Court of Appeal of Alberta, which has yet to hear the appeal. Until 2014, the relationship between the four major telecoms and the city of Calgary was governed by a municipal access agreement. When they failed to get another agreement, the city proposed its own model, which intended to assert authority over the rights-of-way and to manage the environmental, safety and other risks that occurred from utility work. The city said this would create a single uniform framework by which provincial and federal utilities could gain access and get consent from Calgary in a streamlined way. What that bylaw entailed was the regulation of “what, when, where and how of the location, construction, maintenance, operation and preservation” of those telecom networks. Part of what drove the decision to enact the bylaw was the city’s concern, which was in the midst of a fibre strategy, about “competitors forcing multiple installations rather than sharing existing infrastructure, thereby degrading or exhausting rights-of-way.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Calgary asking to appeal CRTC decision in bylaw case

News | March 5, 2019

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Calgary asking to appeal CRTC decision in bylaw case

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