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Telecommunications - Radiocommunication Act. Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (SCC, 2025) the Supreme Court of Canada dismissed an appeal, here from a Federal Court of Appeal dismissal, that from a CRTC ruling that it did not have jurisdiction "to adjudicate disputes over access to 5G small cell antennas situated on public property" under the 'access regime' for telecommunications carriers.
Here the court sets out the statutory regime applicable to the telecommunications carrier system, including '5G':B. The Relevant Statutory Scheme
[9] The Act is part of an “interconnected statutory scheme” governing telecommunications in Canada (Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489, at para. 34). The Act concerns telecommunications services provided to the public and the regulation of carriers. As Gonthier J. explained in Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, the broad purpose of the Act is to “encourage and regulate the development of an orderly, reliable, affordable and efficient telecommunications infrastructure for Canada” (para. 38; see also Act, s. 7).
[10] Section 43 of the Act grants carriers a qualified right of access to enter and break up highways or other public places to construct, maintain or operate its transmission lines with the consent of the relevant public authority, often a municipality (ss. 43(2) and 43(3)). Where a carrier is unable to obtain consent on terms acceptable to it through negotiation, it may ask the CRTC to intervene and set out terms of access (s. 43(4)). The CRTC can also grant permission for persons to access the supporting structure of a transmission line constructed on public property (s. 43(5)). A municipality can seek an order from the CRTC under s. 44 to prohibit activity that could otherwise be authorized under s. 43.
[11] The full text of the access regime provisions is as follows:43 (1) In this section and section 44, distribution undertaking has the same meaning as in subsection 2(1) of the Broadcasting Act.
(2) Subject to subsections (3) and (4) and section 44, a Canadian carrier or distribution undertaking may enter on and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines and may remain there for as long as is necessary for that purpose, but shall not unduly interfere with the public use and enjoyment of the highway or other public place.
(3) No Canadian carrier or distribution undertaking shall construct a transmission line on, over, under or along a highway or other public place without the consent of the municipality or other public authority having jurisdiction over the highway or other public place.
(4) Where a Canadian carrier or distribution undertaking cannot, on terms acceptable to it, obtain the consent of the municipality or other public authority to construct a transmission line, the carrier or distribution undertaking may apply to the Commission for permission to construct it and the Commission may, having due regard to the use and enjoyment of the highway or other public place by others, grant the permission subject to any conditions that the Commission determines.
(5) Where a person who provides services to the public cannot, on terms acceptable to that person, gain access to the supporting structure of a transmission line constructed on a highway or other public place, that person may apply to the Commission for a right of access to the supporting structure for the purpose of providing such services and the Commission may grant the permission subject to any conditions that the Commission determines.
44 On application by a municipality or other public authority, the Commission may
(a) order a Canadian carrier or distribution undertaking, subject to any conditions that the Commission determines, to bury or alter the route of any transmission line situated or proposed to be situated within the jurisdiction of the municipality or public authority; or
(b) prohibit the construction, maintenance or operation by a Canadian carrier or distribution undertaking of any such transmission line except as directed by the Commission. Other relevant provisions of the Act and the Radiocommunication Act, R.S.C. 1985, c. R-2, are appended to these reasons.[12] The Radiocommunication Act is part of the same interrelated scheme. It deals with the “allocation of specified radio frequencies, the authorization to possess and operate radio apparatuses, and the technical regulation of the radio spectrum” (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 44; see S. Handa et al., Communications Law in Canada (loose-leaf), at §§ 3.62-3.65).
[13] Although the carriers have purchased the necessary spectrum licences to transmit 5G, these licences do not permit them to install 5G small cell antennas wherever they choose. Section 5(1)(f) of the Radiocommunication Act vests the Minister of Industry with the authority to approve “each site on which radio apparatus, including antenna systems, may be located” (see Handa et al., §§ 3.71-3.73). Generally speaking, as part of the current ministerial approval process, the carrier must consult with the relevant land-use authorities before installing antennas (see Spectrum Management and Telecommunications, CPC-2-0-03 — Radiocommunication and Broadcasting Antenna Systems (2022), at s. 4.1). However, because 5G small cell antennas are “[n]on-tower structures”, in that they attach to existing structures, they are currently excluded from these consultation requirements (see s. 6).
[14] The Radiocommunication Act is silent on access; it does not grant carriers a right to access public property to install antennas or establish a dispute resolution mechanism. Carriers must obtain access to antenna sites through negotiation with the property owner, whether public or private. . Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (Fed CA, 2023) the Federal Court of Appeal conducted a Telecommunications Act [s.64] 'appeal' in relation to mobile wireless telecommunications. I parenthesize 'appeal' because these matters are quite unique, being more in the nature of a court audit of recently-issued CRTC 'Regulatory Policy' decisions to assess them for legality. As this quote indicates these cases are largely dictated by the state of current telecommunications market and technology:[15] As previously mentioned, the decision is very comprehensive and covers a lot of ground. It is structured in four parts: (1) the state of competition in the retail market, which includes a market power analysis (CRTC Decision at paras. 28-157); (2) regulatory measures at the wholesale level, which include measures related to wholesale MVNO access service, wholesale roaming service and seamless roaming, and access to infrastructure (CRTC Decision at paras. 158-489); (3) regulatory measures at the retail level to support competition (CRTC Decision at paras. 490-600); (4) other issues raised by the parties during the proceeding (CRTC Decision at paras. 601-630). Here the court sets out the legislative scheme governing telecommunication and radiocommunication in Canada under the Telecommunications Act and Radiocommunications Act:IV. The legislative framework
[34] To better understand the issues raised in this appeal and the arguments put forward by the parties, it is essential to have a good grasp of the legislative scheme governing telecommunication and radiocommunication in Canada. Equally important are the roles played by the CRTC when imposing conditions of service to Canadian carriers, and by the Minister in issuing and amending the conditions of licence authorizing carriers to use specific radiofrequency bands for the provision of their services, and in approving the location at which wireless facilities such as antennas may be situated.
[35] As the Supreme Court held in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489 [Reference re Broadcasting] (at paras. 34 and 37), the Broadcasting Act, S.C. 1991, c. 11 the Radiocommunication Act and the Telecommunications Act are part of an "“interrelated scheme”"; while they have different aims, their subject matters will overlap in certain circumstances. As a result, persons regulated under one of the Acts may well be regulated under one of the other Acts as well.
[36] Broadly speaking, the Telecommunications Act’s main objective is the supervision of telecommunications services (voice and data) provided to the public throughout Canada and, as an accessory, the regulation of facilities-based telecommunications common carriers. The Act falls under the responsibility of the Minister of Innovation, Science and Economic Development, but for all intents and purposes, the primary responsibility for the implementation and administration of the Act falls to the CRTC.
[37] Pursuant to section 47 of the Act, the CRTC is required to consider the policy objectives set out in section 7 of the Act when exercising any of its powers:"47 The Commission shall exercise its powers and perform its duties under this Act and any special Act "
"47"" Le Conseil doit, en se conformant aux décrets que lui adresse le gouverneur en conseil au titre de l’article 8 ou aux normes prescrites par arrêté du ministre au titre de l’article 15, exercer les pouvoirs et fonctions que lui confèrent la présente loi et toute loi spéciale de manière à réaliser les objectifs de la politique canadienne de télécommunication et à assurer la conformité des services et tarifs des entreprises canadiennes avec les dispositions de l’article 27. "
"(a) with a view to implementing the Canadian telecommunications policy objectives and ensuring that Canadian carriers provide telecommunications services and charge rates in accordance with section 27; and "
"[blank]"
"(b) in accordance with any orders made by the Governor in Council under section 8 or any standards prescribed by the Minister under section 15. "
"[blank]" [38] These objectives are set out in section 7 of the Act, and include the following:"7 It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives "
"7"" La présente loi affirme le caractère essentiel des télécommunications pour l’identité et la souveraineté canadiennes; la politique canadienne de télécommunication vise à : "
"(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions; "
"a)"" favoriser le développement ordonné des télécommunications partout au Canada en un système qui contribue à sauvegarder, enrichir et renforcer la structure sociale et économique du Canada et de ses régions; "
"(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada; "
"b)"" permettre l’accès aux Canadiens dans toutes les régions — rurales ou urbaines — du Canada à des services de télécommunication sûrs, abordables et de qualité; "
"(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications; "
"c)"" accroître l’efficacité et la compétitivité, sur les plans national et international, des télécommunications canadiennes; "
"… "
"… "
"(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective; "
"f)"" favoriser le libre jeu du marché en ce qui concerne la fourniture de services de télécommunication et assurer l’efficacité de la réglementation, dans le cas où celle-ci est nécessaire; "
"… "
"… "
"(h) to respond to the economic and social requirements of users of telecommunications services; and "
"h)"" satisfaire les exigences économiques et sociales des usagers des services de télécommunication;" [39] Section 8 of the Act authorizes the Governor in Council to" “issue to the Commission directions of general application on broad policy matters with respect to the Canadian telecommunications policy objectives”". An order made under that section is binding on the Commission (the Act, ss. 11(1) and 47(b)). At the time the decision under appeal was issued, two directions given by the Governor in Council were particularly relevant. The first one, issued in 2006, directed the Commission, when relying on regulation, to use measures that satisfy four criteria, one of them being:1(b)(iv) if they relate to network interconnection arrangements or regimes for access to networks, buildings, in-building wiring or support structures, ensure the technological and competitive neutrality of those arrangements or regimes, to the greatest extent possible, to enable competition from new technologies and not to artificially favour either Canadian carriers or resellers
Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, S.O.R./2006-355 [40] The second direction, released in 2019, directs the CRTC to consider the extent to which its decisions "“enable innovation in telecommunications services, including new technologies and differentiated service offerings”": Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives to Promote Competition, Affordability, Consumer Interests and Innovation, S.O.R./2019-227, para. 1(a)(vi).
[41] Also of particular relevance for this appeal are the following definitions found in section 2 of the Act:"Canadian carrier means a telecommunications common carrier that is subject to the legislative authority of Parliament; (entreprise canadienne) "
"entreprise canadienne"" Entreprise de télécommunication qui relève de la compétence fédérale. (Canadian carrier) "
"telecommunications means the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system; (télécommunication) "
"télécommunication"" La transmission, l’émission ou la réception d’information soit par système électromagnétique, notamment par fil, câble ou système radio ou optique, soit par tout autre procédé technique semblable. (telecommunications) "
"telecommunications facility means any facility, apparatus or other thing that is used or is capable of being used for telecommunications or for any operation directly connected with telecommunications, and includes a transmission facility; (installation de télécommunication) "
"installation de télécommunication"" Installation, appareils ou toute autre chose servant ou pouvant servir à la télécommunication ou à toute opération qui y est directement liée, y compris les installations de transmission. (telecommunications facility) "
"transmission facility means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus. (installation de transmission) "
"installation de transmission"" Tout système électromagnétique — notamment fil, câble ou système radio ou optique — ou tout autre procédé technique pour la transmission d’information entre des points d’arrivée du réseau, à l’exception des appareils de transmission exclus. (transmission facility) " [42] Parliament expressly empowered the CRTC to subject the provision of telecommunications services by a Canadian carrier to conditions (the Act, s. 24). There is no dispute that the national carriers – Telus, Bell and Rogers – are Canadian carriers and that wholesale roaming is a telecommunications service within the meaning of section 2 of the Act.
....
[131] In short, a careful examination of the whole legislative scheme governing radiocommunication and telecommunications in Canada shows that the Minister and the CRTC exercise different powers over different types of entities and for different purposes. These powers are complementary and sometimes overlap, and the fact that the Minister and the CRTC may reach different conclusions on a specific topic is by no means a sign that one is encroaching upon the jurisdiction of the other. It is rather because they arrive at their respective conclusions from different perspectives, with a view to implementing different policy objectives.
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