CRTC can't adjudicate disputes between public authorities and companies over 5G infrastructure: SCC

Telus, Rogers, and other companies argued such a decision would hamper deployment of 5G networks

CRTC can't adjudicate disputes between public authorities and companies over 5G infrastructure: SCC
Ewa Krajewska, Peter Ruby

The Canadian Radio-television and Telecommunications Commission does not have the authority to adjudicate disputes over access to 5G small cell antennas on public property, the Supreme Court of Canada ruled in a 7-2 decision on Friday.

According to the telecommunications companies that initiated the appeal, their ability to smoothly expand 5G infrastructure across Canada is at stake. 5G networks offer faster connectivity and better data capability than previous-generation mobile wireless networks, but they rely on companies’ access to public property to install, maintain, and operate a large number of small cell antennas.

If the CRTC does not have the authority to adjudicate access disputes between carriers and public authority, the parties are left to resolve any disputes on their own or via the courts, according to Ewa Krajewska, a partner at Henein Hutchison Robitaille LLP who represented Telus in the case.

“I think there remains a question of how the issues would be brought to the court, but that would depend on the nature of the dispute, and the court suggests in its reasons that this may include a constitutional challenge,” Krajewska told Canadian Lawyer on Friday.

A spokesperson for Telus said in a statement, “While we respect today's Supreme Court ruling, it creates challenges for efficient 5G deployment across Canada.

“This outcome underscores the need for legislative reform to align wireless and wireline infrastructure regulations, ensuring Canadians can fully benefit from advanced wireless technologies and reduce the complexity and delays caused at the municipal level.”

However, Peter Ruby, a partner at Goodmans LLP who represents Electricity Canada, one of the respondents, says the SCC’s decision is “business as usual” and aligns with the court’s long-standing approach to statutory interpretation.

Ruby says the decision is also consistent with the high court's approach in a 2003 decision called Barrie Public Utilities v. Canadian Cable Television Assn., which found that the CRTC did not have jurisdiction over the power poles of provincially regulated electric power companies. At the time, cable companies looking for access to those poles “said the sky would fall and it has not,” Ruby says.

He notes that the CRTC found that municipalities and other public authorities have not systematically interfered with the deployment of 5G infrastructure. “Power utilities and municipalities want 5G rolled out [because] it is good for them and their communities, which may explain why the CRTC concluded there was no evidence of a systemic problem with access,” Ruby adds.

The high court’s decision hinged on the definition of “transmission line” under the Telecommunications Act. Under ss. 43 and 44 of the law, telecommunications companies can access public property to construct, maintain, and operate their transmission lines, which facilitate data transfer between different points. In cases where a carrier and a public authority disagree on the terms under which the former can access its transmission lines, the law gives the CRTC authority to set out the terms of access.

After launching an initiative in 2019 to reduce barriers to mobile wireless infrastructure, however, the CRTC interpreted the Telecommunications Act’s use of the term “transmission line” to only refer to wireline infrastructure, not wireless infrastructure.

The CRTC concluded that the law did not give the commission jurisdiction to adjudicate disputes over access to 5G small cell antennas – which qualify as wireless infrastructure – located on public property. A Federal Court of Appeal affirmed the CRTC’s finding.

However, several telecommunications companies disagreed. Telus Communications Inc., Quebecor Media Inc., Videotron Ltd., and Rogers Communications Canada Inc. asked the SCC to declare that the Telecommunications Act’s definition of “transmission line” includes the small cell antennas used in 5G mobile wireless networks.

On Friday, an SCC majority disagreed with the telecommunications companies, ruling that small cell antennas are not encompassed by the term “transmission line.” The majority dismissed the telecommunications companies’ appeal.

“The ordinary meaning of ‘transmission line’ and the text of ss. 43 and 44 of the [Telecommunications] Act have a strong physical and linear connotation that readily applies to wireline infrastructure like wires or cables, but not to antennas,” Justice Mary Moreau wrote for the majority. “Likewise, the broader context of the act, including other defined terms and the act’s legislative history, supports the narrower interpretation.”

Moreau acknowledged that “an access regime that applies to wireline equipment in a mobile wireless telecommunications network but not wireless equipment is not the regime most favourable to the deployment of 5G infrastructure, a regime that Parliament could have enacted. It will require them to negotiate with municipalities without recourse to the CRTC.

However, Moreau added, ‘This does not mean the narrower interpretation leads to an absurd result; it is not unreasonable, illogical, incompatible with other provisions of the [Telecommunications] Act, does not defeat the purpose of the act, nor does it render any part of the act pointless or futile.”

In their dissent, Justices Suzanne Côté and Sheilah Martin said they would have allowed the telecommunications companies’ appeal, arguing that “the text, context, and purpose of the Telecommunications Act make it clear that the term ‘transmission line’ includes 5G small cells.

The justices added that such an interpretation “aligns with and respects Parliament’s desire for technological neutrality in light of rapid technological development.”

In a statement on Friday, a spokesperson for another respondent, the Federation of Canadian Municipalities, said, “Today’s ruling upholds FCM’s long-standing position that telecommunications carriers must negotiate with municipal authorities before installing antennas on public property.

“While carriers are legally permitted to place wires and cables on public land, antennas raise different considerations related to safety, potential radio frequency interference, and aesthetics. Therefore, municipalities must have the authority to determine where antennas can be permitted,” the spokesperson said. “The court’s decision also empowers municipalities to ensure that antenna installations do not impose hidden costs on local taxpayers.”

The spokesperson added, “FCM recognizes the importance of 5G wireless technology to Canada’s economic growth and prosperity. Municipalities are committed to enabling its timely, efficient, and cost-effective deployment while safeguarding local planning, safety, and community interests.”

A spokesperson for the British Columbia Ministry of Transportation and Transit declined to comment. Representatives for the other parties in the case did not immediately respond to requests for comment.