FCM rejects Telus complaint of regulatory uncertainty in wireless review appeal

Rather than creating a "lacuna in the federal regulatory scheme," causing uncertainty when it comes to access to municipal rights of way for wireless technology as Telus Corp. argues, the CRTC's decision not to create a regime for that access correctly leaves the matter up to Parliament, according to the Federation of Canadian Municipalities. Telus made the argument in a May application for judicial review of certain elements of the CRTC's wireless review decision. In its April decision, the CRTC determined that it doesn't have jurisdiction to adjudicate disputes between companies and municipalities related to mobile wireless transmission infrastructure and that it did not need to create new policies and procedures to address such disputes. In doing so, the CRTC effectively sided with municipalities, who had argued to the regulator that they are uniquely qualified to manage the efficient use of public space when it comes to the installation of wireless equipment for the rollout of 5G networks. The CRTC's decision, Telus wrote in its application for leave to appeal, creates "a lacuna in the federal regulatory scheme that is inconsistent with the modern approach to statutory interpretation, and will delay 5G services for Canadians.” Telus' argument, the FCM said in a memorandum of fact and law filed with the Federal Court of Appeal earlier this month and posted to the case file this week, "simply misapprehends what is, in fact, a clear and complete regulatory scheme set out by Parliament." "The fact that the current framework does not grant the Appellant the rights of access it would like to have to install radio apparatus does not create an arguable case for some novel interpretation that runs counter to clear and well-defined spheres of administrative jurisdiction." The CRTC's logic in its original decision hinged on its interpretation that the term "transmission line" as defined in the Telecommunications Act does not cover wireless infrastructure. Telus -- alongside Rogers Communications Inc. -- argues that it does. "While the threshold to obtain leave to appeal from a CRTC decision on matters of law and jurisdiction might be relatively low, FCM submits that stretching the meaning of ‘transmission line’ to the breaking point does not meet even that low threshold," the FCM wrote in its court filing. If the court accepted Telus' argument that the meaning of "transmission lines" should be interpreted in a "dynamic" manner, the FCM argued, the "result would be that the Appellant would be free to install whatever equipment it wishes to install in locations where it already has equipment in place, mainly within public rights-of-way." The FCM did concede that there could be improvements to the access regime but said that the courts were not the right venue for those changes to be made. "FCM is not stating that there is no argument to be made that the current dual regime for wireline and wireless technologies could be better adapted to emerging technologies like 5G. However, that is a matter that falls squarely in the policy arena and it is ultimately up to Parliament to decide," the federation wrote. That there are two different access regimes -- one for wireline under the Telecommunications Act and the authority of the CRTC, and one for wireless under the Radiocommunications Act under Innovation, Science, and Economic Development (ISED) -- is not a regulatory "lacuna," the FCM argued, but is an instance where "Parliament simply attempted to balance competing needs and demands." "Any decision to modify this balance should and must be left to Parliament," the FCM wrote. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Hannah Daley at hdaley@thewirereport.ca

FCM rejects Telus complaint of regulatory uncertainty in wireless review appeal

News | June 23, 2021

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FCM rejects Telus complaint of regulatory uncertainty in wireless review appeal

News | June 23, 2021

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