Give feds more powers over passive infrastructure: C.D. Howe Institute

The federal government should have more control over passive infrastructure to facilitate the rollout of 5G internet, the C.D. Howe Institute said. In a report issued in mid-January, a trio of attorneys from Fasken Martineau DuMoulin LLP decries the provincial involvement in telecom deployment. To that end, Leslie Milton, Jay Kerr-Wilson and Paul Burbank made seven recommendations, six involving the Telecommunications Act. The current regime, they argue, is based on the establishment of telegraph and telephone lines. That is incompatible with modern technology. “It is estimated that 5G will add nearly $40 billion to Canada’s gross domestic product (GDP) by 2025, create 250,000 permanent jobs and significantly improve the quality of Canadians’ lives,” the report stated, citing figures from the Canadian Wireless Telecommunication Association (CWTA). Yet telecom policy is based on the Telecommunications Act, which is nearly 30 years old, and is itself derived from the predecessor Railways Act. Among the shortcomings of the Telecom Act are lack of federal oversight over terms and conditions to access to highways; no comprehensive regulatory oversight over publicly owned supporting infrastructure; no regulatory oversight over access to multi-tenant buildings; and no access without consent. “All of these shortcomings have serious negative ramifications for Canada’s economic and social well-being,” Milton, Kerr-Wilson and Burbank wrote. “Specifically they cause: regulatory uncertainty, resulting in reduced broadband deployment; delayed deployment of broadband networks, including 5G and rural deployment; increased costs of deployment of broadband networks, resulting in reduced investment in this infrastructure and higher broadband prices; and reduced spillover effects from telecommunications investment on economic growth and social inclusion and prosperity.” The document specifically highlighted delays for access to railway rights-of-way and consent-based access. The regulators involved, the Canadian Transportation Agency for railways and the CRTC for access, take months or even years before rendering judgment. It cited the case of Rogers Communications Inc. which wanted to set up a wireless tower in Chateauguay, Que., in the fall of 2007. Entering into an agreement with the property owner, Rogers notified civic authorities in March 2008 that it wished to build the tower. The city opposed the project and did not issue a construction permit until February 2009. Chateauguay asked the consultation process be reopened, causing the permit to expire. Further delays resulted in the matter going before the Supreme Court of Canada which ruled in October 2016 – nearly nine years later – that the city’s ban on the tower was unconstitutional. “While this case might be an extreme example, carriers routinely face lengthy delays in gaining local approval for wireless antenna sites,” the lawyers noted. One culprit in the regime is the 2003 court case Barrie Public Utilities v Canadian Cable Television Association (The Barrie Decision) in which the Supreme Court ruled the CRTC does not have jurisdiction over provincially-regulated electricity poles. This requires carriers to turn to provincial bodies to establish rates for access. These rates vary greatly from province to province. The Ontario Energy Board set the initial rate at $22.35 per pole attachment in 2005, boosting it to $43.63 in 2018; the New Brunswick Energy and Utilities Board set a rate of $20.77 in 2015. “The Barrie Decision created a major void in the federal access regime,” the report says. “The absence of CRTC oversight over access to poles and conduit owned by electric utilities has been a significant impediment to wireline broadband deployment. In the context of 5G, where a much broader range of supporting infrastructure is required, including street furniture and publicly owned buildings, the absence of unambiguous CRTC oversight over access to non-carrier-owned supporting infrastructure is problematic.” To alleviate the problems currently faced, the report made seven recommendations: 1. To amend the Telecommunications Act to make explicit the carriers’ qualified right of access, and the CRTC’s jurisdiction over such access, encompassing both wireline and wireless transmission; 2. Amend the Act to make access and CRTC jurisdiction apply to all publicly owned land and railway rights-of-way, bridges and crossings; 3. Amend the Act to make explicit the CRTC’s jurisdiction to establish terms and conditions of carrier access, including street furniture owned by municipalities and poles and conduits owned by provincial entities; 4. Amend the Act to give the Commission authority to set baseline standards for carrier access to passive infrastructure; 5. Amend the Act to give the regulator authority to establish baseline standards for access to multi-tenant buildings; 6. Amend the Act to oblige the CRTC and parties to conduct dispute resolution proceedings quickly and efficiently in order to avoid unnecessary delays and added expense; and 7. Consult on amendments to Innovation, Science and Economic Development Canada’s (ISED) antenna siting procedures to address small-cell deployment and delays in antenna siting. “One of the many lessons of the COVID-19 pandemic is the vital importance of a robust and reliable telecommunications system,” the lawyers concluded in the report. Rules designed for a fixed wireline system do not translate into modern technology. Regulatory gaps lead to uncertainty, delays in approval and increased costs. But the CRTC exists to rule over a modernized regime, the report argued. –Reporting by Paul Park at ppark@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca

Give feds more powers over passive infrastructure: C.D. Howe Institute

News | January 17, 2022

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