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Telecommunications - Telecommunications Act (2). Terrestar Solutions Inc. v. Canada (Attorney General) ['telecommunications service']
In Terrestar Solutions Inc. v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here concerning "whether the monetization of spectrum licenses by telecommunications service providers — either through sale or subordination — constitutes a "“telecommunications service”" within the meaning of section 23 of the Telecommunications Act for the purpose of determining their contribution to the National Contribution Fund".
The court considers the meaning of 'incidental services' as used in TA s.23 ['Meaning of telecommunications service']:[16] The question of whether there is a properly formulated question of law or jurisdiction before the Court is one that requires vigilance, for "“the mere say-so”" of a "“skillful pleader ... armed with sophisticated wordsmithing tools”" is insufficient to ground a legitimate issue: Teksavvy Solutions Inc. v. Bell Canada, 2024 FCA 121 at para. 18 (Teksavvy). While interpreting a statutory provision may constitute an extricable legal question, that is not the case here. Both parties agree that the legal standard for what constitutes an incidental service under section 23 of the Act was most recently articulated in Telecom Decision CRTC 2006-3, where the Commission confirmed that when assessing whether a service is "“incidental to the business of providing telecommunications services”", it was appropriate to apply the same approach previously applied in Telecom Decision CRTC 90-12 which determined whether a service was "“incidental to a telephone business”" under section 2 of the Railway Act, R.S.C. 1970, c. R-2 (the predecessor legislation to the Act which governed telecommunication prior to 1993), and:“...to consider the extent to which the service in question engages fundamental elements of the telephone system or the relationship that the service in question bears to the essential nature of the telephone business.”
(emphasis added) [17] First, TerreStar contends that the subordination of spectrum is not a service that the company undertakes as part of its business of providing mobile satellite service to its customers. Consequently, argues TerreStar, the Commission erred in determining that the sale and subordination of spectrum were "“incidental”" to its business of providing "“telecommunications service”" for the purposes of the contribution regime under section 23 of the Act. The thrust of TerreStar’s assertion is that its subordination of spectrum is merely a bare assignment of a contractual right—essentially a way to monetize unused assets—and does not, in accordance with Telecom Decision CRTC 90-12, engage the fundamental elements of, or relate to the essential nature of the company’s mobile-satellite service operations. TerreStar emphasizes that such arrangements do not involve access to any integral facility that is vital to the efficient administration and delivery of that service to its customers.
[18] However, the point that the Commission is making was that, although TerreStar provided mobile-satellite service to its customers, it is in the "“business of providing telecommunications service”" through the utilization of spectrum allocated for that purpose—a finding TerreStar does not dispute. Consequently, the Commission concluded that the company’s use of the spectrum by way of sale and subordination was incidental to that business in accordance with section 23 of the Act. As stated earlier, in the review decision, the Commission did not accept TerreStar’s narrow characterization of its telecommunications business as solely a provider of mobile satellite service and determined, as a question of fact, that the generation of revenue from spectrum sale and subordination was a key element of the company’s business. TerreStar accepts that had it chosen to use the spectrum itself, rather than assigning it for a fee to a third party, the resulting revenues would necessarily be contribution-eligible revenues for its contribution to the Fund.
[19] It is important to keep in mind what exactly the Commission was addressing: the scope of contribution to the Fund within the framework established by section 23 of the Act. In Decision CRTC 2000-745, the Commission indicated that the contribution regime was intended to encompass the broadest possible range of telecommunications services. As the Commission stated at paragraph 87:... applying contribution against the broadest possible range of telecommunications services would spread the contribution burden across various sectors of the marketplace. This approach would be competitively equitable, result in a lower revenue-percentage charge being applied to each service, and be more administratively efficient by eliminating the need for a detailed review and classification of all telecommunications services.
(emphasis added) [20] Consistent with this intention, in Order CRTC 2001-221, the Commission determined that it was in the public interest and consistent with the policy objectives in section 7 of the Act that TSPs contribute to the Fund based on their operating revenues as defined in section 23 of the Act; the Commission clarified that:For the purpose of this calculation, services “incidental to the business of providing telecommunications services” are those services that the Commission has to date treated as telecommunications services as well as any other service that the Commission may determine to fall within the scope of section 23 of the Act.
(emphasis added) [21] In its review decision, the Commission specifically referenced Telecom Decision CRTC 2006-3 and the legal standard for determining whether a service is incidental to the business of providing telecommunications service. The Commission concluded that TerreStar was in the business of exploiting spectrum allocated for such purposes, and that the monetization of the spectrum through sale and subordination was incidental to that business, in line with the broad wording of section 23 of the Act. In my view, such a finding by the Commission involves a factually suffused and discretionary question of mixed law and fact, lacking an extricable legal principle for resolution. Consequently, it is not a matter that this Court can consider in the context of a section 64 appeal: Teksavvy at para. 14; Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79 at paras. 20–28 (Emerson).
[22] TerreStar also argues that the approach adopted by the Commission in determining that the sale and subordination of spectrum was incidental to its business of providing telecommunications service was inconsistent with the approach the Commission had previously taken on the same issue. The company cites previous Commission decisions concerning the notion of "“incidental”" services under section 23 of the Act—such as providing office space for the company, maintenance and engineering services related to company facilities, financing plans for customers, billing and collection services, or the set-up of customer service information for telecommunication service—in arguing that, for a service to be deemed "“incidental”", the Commission must assess whether there is a meaningful connection or factual nexus that is essential to the efficient administration of the telecommunications service that would render the proposed incidental service critical to the operational sustainability of, and thus fundamental to, the provision of that telecommunications service. However, argues TerreStar, this approach was not followed in this case, as the Commission failed to address or consider whether such a connection or factual nexus existed between the monetization of its unused spectrum and the company’s business of providing mobile satellite service to its customers with the spectrum it was using.
[23] The Commission, for its part, determined that TerreStar’s "“inconsistency”" argument fails to recognize that spectrum is a direct input specifically designated for providing wireless telecommunications services, and given the critical nature of spectrum in providing such services, the initial decision—that revenues from the sale and subordination of spectrum must at least be considered incidental to the business of providing telecommunications services under section 23 of the Act—is consistent with previous Commission determinations.
[24] I have not been persuaded of any inconsistency in the approach taken by the Commission in applying the test for whether a service is "“incidental”" under section 23 of the Act. It comes down to how one defines TerreStar’s "“business of providing telecommunications service”". As previously noted, the Commission rejected the company’s narrow assertion that it was solely engaged in the business of providing mobile satellite service in Canada, favoring the broader interpretation that includes revenue generated from the sale and subordination of spectrum. The Commission addressed the connection issue by concluding that spectrum is allocated specifically to provide telecommunications services, and that, in this context, the monetization of spectrum was a key element to that business. The assessment of any connection or nexus falls within the Commission’s regulatory wheelhouse, with no extricable legal principle to resolve in this case, and thus is not something which this Court has the power to consider under the circumstances. The fact that the Commission had not previously considered the notion of "“incidental”" in relation to the sale and subordination of spectrum does not render its decision inconsistent with past rulings on the issue.
[25] Finally, I note that TerreStar’s argument—that, for the purposes of the contribution regime, spectrum sale and subordination would need to be offered through a tariff unless the Commission granted forbearance—is of no moment to the issues at hand. This argument was expressly rejected by the Commission.
[26] Accordingly, this ground of appeal must fail. . Terrestar Solutions Inc. v. Canada (Attorney General) [appeal route]
In Terrestar Solutions Inc. v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here concerning "whether the monetization of spectrum licenses by telecommunications service providers — either through sale or subordination — constitutes a "“telecommunications service”" within the meaning of section 23 of the Telecommunications Act for the purpose of determining their contribution to the National Contribution Fund".
Here the court illustrates a CRTC Telecommunications Act appeal route:[7] In June 2022, Commission staff sent a letter to TerreStar indicating that it viewed the generation of revenue from a spectrum licence, whether by way of lease, sale or subordination, as a "“telecommunications service”" within the meaning of the Act. As such, any revenue derived therefrom would not be eligible for deduction as NTSR within the contribution regime (staff decision).
[8] In November 2022, TerreStar applied to the Commission for a declaration that the subordination of a spectrum license is not a "“telecommunications service”" and that revenues generated therefrom are not operating revenues for purposes of the contribution regime. TerreStar’s application did not deal with the sale of spectrum, but only with subordination. In short, TerreStar argued that spectrum would need to be considered a "“telecommunications facility”" as defined in subsection 2(1) of the Act for subordination to meet the definition of "“telecommunication service”" for the purpose of the contribution regime, and that, applying the interpretive principle of ejusdem generis, spectrum cannot be classified as an "“other thing”" within the definition of "“telecommunications facility”".
[9] In June 2023, the Commission denied TerreStar’s application and confirmed its staff’s non-binding ruling that spectrum sale and subordination is a "“telecommunications service”" as defined by the Act (initial decision). The Commission pointed to its Order 2001-288 where it stated that for the purposes of calculating contribution-eligible revenues, services that are "“incidental”" to the business of providing telecommunications services are services that the Commission has treated as or determined to be telecommunications services, in accordance with section 23 of the Act. The Commission determined that TerreStar too narrowly interpreted the notion of "“telecommunications service”" by relying solely on the definition set out in subsection 2(1) of the Act—to the exclusion of any consideration for the wider definition of the term under section 23-in a manner inconsistent with a broad and purposive analysis that considers the contribution regime in its proper and full context.
[10] In the end, the Commission stated that:The interpretation of revenues from the sale and subordination of spectrum used for telecommunications services is consistent with past Commission decisions as to what may constitute a telecommunications service as per section 23 of the Act on the basis that it is incidental to a telecommunications service as per subsection 2(1) of the Act. Spectrum is a scarce resource, diligently allocated for specific purposes. Revenues derived from spectrum allocated for the purpose of providing telecommunications services must at least be incidental to the business of providing telecommunications services.
(emphasis added) [11] On June 12, 2024, the Commission denied TerreStar’s application to review and vary the initial decision pursuant to section 62 of the Act (review application), finding that TerreStar failed to demonstrate that there was substantial doubt as to the correctness of the initial decision, consistent with the criteria the Commission uses to assess, review and vary applications as set out in Telecom Information Bulletin CRTC 2011-214 (review decision).
[12] In its review application, TerreStar raised several issues, including questions of procedural fairness, the Commission’s jurisdiction and whether the Commission had engaged in retroactive decision-making, all of which were addressed by the Commission. TerreStar also argued that although the initial decision stated that its determination was consistent with previous Commission rulings on what constitutes "“incidental”" to the business of providing telecommunications service, in reality it was not because the sale and subordination of spectrum do not qualify as incidental services to the company’s core business of providing mobile satellite service in Canada.
[13] Based on the revenue information provided by TerreStar, the Commission, contrary to TerreStar’s assertion, did not consider TerreStar’s characterization as being solely a provider of mobile satellite service to be reasonable. Instead, the Commission determined that revenue generation from spectrum sale and subordination was a "“key element”" of the company’s business. Ultimately, the Commission reaffirmed its initial decision, concluding that, given the critical nature of spectrum in providing telecommunications services, its initial decision is consistent with the policy objective set out in paragraph 7(b) of the Act as well as with the Order Issuing a Direction to the CRTC on a Renewed Approach to Telecommunications Policy, SOR/2023-23.
III. Determination on appeal
[14] TerreStar now appeals the review decision pursuant to section 64 of the Act on what it claims to be a question of law or jurisdiction and focuses its principal submissions on section 23 of the Act. . Terrestar Solutions Inc. v. Canada (Attorney General) [contribution fund]
In Terrestar Solutions Inc. v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here concerning "whether the monetization of spectrum licenses by telecommunications service providers — either through sale or subordination — constitutes a "“telecommunications service”" within the meaning of section 23 of the Telecommunications Act for the purpose of determining their contribution to the National Contribution Fund".
Here the court considered the 'contribution fund' [under s.46.5 of the Telecommunications Act (TA)], and the related TA definitions of "telecommunications service" and "telecommunications facilities":[3] In November 2000, pursuant to subsection 46.5(1) of Part III of the Telecommunications Act, S.C. 1993, c. 38 (Act), the Commission established a contribution regime under which telecommunications service providers (TSPs) with annual revenues from Canadian telecommunications services (operating revenues) of at least $10 million are required to contribute to the National Contribution Fund (Fund)—created to support initiatives crucial for maintaining Canadians’ access to basic telecommunications services. Contributions are calculated based on a TSP’s "“contribution-eligible revenues”", which are determined by subtracting approved deductions—such as revenues from Canadian non-telecommunications services (NTSR)—from its total operating revenues.
[4] TerreStar is one such TSP, providing mobile-satellite services to consumers and businesses. The company holds several spectrum licences issued by Innovation, Science and Economic Development Canada (ISED) pursuant to the Radiocommunication Act, R.S.C., 1985, c. R-2. In 2021, TerreStar derived part of its operating revenues from the sale and subordination of spectrum licenses it was not using (spectrum sale and subordination revenues). In March 2022, in line with its reporting obligations under the contribution regime, TerreStar sought to deduct such revenues, as NTSR, from its total operating revenues when calculating its contribution to the Fund; approximately 98% of claimed revenue deductions pertained to the subordination (often referred to as sublicensing, subleasing or assignment of unused spectrum) of ancillary terrestrial component (ATC) spectrum to other TSPs, while around 2% related to the sale of 10 MHz of spectrum in the ATC bands in Manitoba. It would seem that until then, no other TSP had attempted to deduct spectrum sale and subordination revenues in this manner, despite such activities being common industry services.
[5] The definitions of "“telecommunications service”" and "“telecommunications facilities”" are found in subsection 2(1) of the Act. Section 23 (which is in Part III) of the Act expands the definition of "“telecommunications service”" for the purposes of the contribution regime under subsection 46.5(1). The relevant provisions are as follows:2(1) In this Act,
telecommunications service means a service provided by means of telecommunications facilities and includes the provision in whole or in part of telecommunications facilities and any related equipment, whether by sale, lease or otherwise;
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
service de télécommunication :
Service fourni au moyen d’installations de télécommunication, y compris la fourniture — notamment par vente ou location —, même partielle, de celles-ci ou de matériel connexe.
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;
(emphasis added)
installations 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.
(Je souligne)
Meaning of telecommunications service
23 For the purposes of this Part and Part IV, telecommunications service has the same meaning as in section 2 and includes any service that is incidental to the business of providing telecommunications services.
(emphasis added)
Définition de service de télécommunication
23 Pour l’application de la présente partie et de la partie IV, service de télécommunication s’entend du service de télécommunication défini à l’article 2, ainsi que de tout service accessoire à la fourniture de services de télécommunication.
(Je souligne) [6] The definition of NTSR for the purpose of the contribution regime was determined by the Commission in Order CRTC 2001-288 to:... include all Canadian revenues that are derived from services other than telecommunications service as defined in section 23 of the [Act], i.e., “telecommunications service” has the same meaning as in section 2 [of the Act] and includes any service that is incidental to the business of providing telecommunications services.
For the purposes of calculating contribution eligible revenues pursuant to Decision 2000-745, services that are incidental to the business of providing telecommunications services are services that the Commission has treated as or determined to be telecommunications services, in accordance with section 23 of the Act.
(emphasis added)
This definition is consistent with Telecom Circular CRTC 2007-15 which consolidated and summarized information with respect to the contribution regime. . 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 [5G technology explained]
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 explains the technology transition to '5G' mobile wireless networks:A. The Technology
[6] Canadian telecommunications carriers are in the midst of upgrading their 5G mobile wireless networks, which the CRTC described in 2019 as a “major transformation” in Canadian telecommunications (Telecom Notice of Consultation CRTC 2019-57, February 28, 2019 (online), at para. 18). 5G networks offer faster connectivity and enhanced data capability that will support new applications including the “Internet of Things” (Telecom Regulatory Policy CRTC 2021-130, April 15, 2021 (online) (“CRTC Decision”), at para. 2). Following an auction process in 2021 and 2023, carriers acquired the rights to use the radio frequencies needed for 5G data transmission in exchange for payments to the federal government totalling over $11 billion.
[7] Previous-generation mobile wireless networks have relied on approximately 13,000 large cell antenna towers across Canada to transmit intelligence from their wireline networks to users’ devices. 5G networks employ low-powered small cell antennas. Due to their low range, complete 5G connectivity across Canada will require an estimated 250,000 to 300,000 small cell antennas. While significantly smaller than previous-generation large cell antenna towers, 5G small cell antennas function in essentially the same way. They transmit wireless signals in multiple directions to devices, but still rely on intelligence transmitted through the wires or cables of a carrier’s wireline network. Therefore, a carrier’s mobile wireless network can be understood as involving a combination of both wireline equipment (e.g., fibre-optic cables) and wireless equipment (e.g., 5G small cell antennas).
[8] 5G small cell antennas are not usually free-standing. Instead, they are mounted on existing structures such as telephone poles, lamp posts, bus shelters, or buildings. Many of these structures are located on municipally owned public property. This means the deployment of 5G infrastructure across Canada will require carriers to access public property to install, maintain and operate 5G small cell antennas. . Telus Communications Inc. v. Federation of Canadian Municipalities [case summary]
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 summarizes it's ruling:[1] This appeal is about the proper interpretation of the term “transmission line” in ss. 43 and 44 of the Telecommunications Act, S.C. 1993, c. 38 (“Act”). These provisions are known as the “access regime”. They give telecommunications carriers a qualified right of access to construct, maintain and operate their transmission lines situated on public property. Where the carrier cannot obtain consent to access its transmission lines from the relevant public authority on terms that are acceptable to it, the Canadian Radio-television and Telecommunications Commission (“CRTC”) is empowered to determine the applicable terms of access.
[2] The appellant telecommunications carriers — Telus Communications Inc., Quebecor Media Inc., Videotron Ltd. and Rogers Communications Canada Inc. (collectively the “carriers”) — ask this Court to depart from the interpretation adopted by the Federal Court of Appeal and the CRTC that restricts the meaning of “transmission line” to wireline infrastructure. They ask this Court to declare instead that “transmission line” can include the “small cell” antennas used in new fifth-generation (“5G”) mobile wireless networks. In support of their position, they invite this Court to consider the role of dynamic interpretation and technological neutrality in the interpretation of the Act and, more broadly, in the modern approach to statutory interpretation.
[3] I would dismiss the appeal. The term “transmission line” only refers to wireline infrastructure. It would be inconsistent with the text, context and purpose of ss. 43 and 44 of the Act to say that Parliament intended the term to extend to antennas. The ordinary meaning of “transmission line” and the text of ss. 43 and 44 have a strong physical and linear connotation that readily applies to wireline infrastructure like wires or cables, but not to antennas. Likewise, the broader context of the Act, including other defined terms and the Act’s legislative history, supports the narrower interpretation. The general policy objectives in s. 7 of the Act do not require the interpretation of “transmission line” that is the most advantageous to the carriers. Parliament’s balancing of the carriers’ interests against those of public authorities must be respected. The narrower interpretation does not lead to absurd consequences nor does it raise federalism concerns, as the carriers have suggested.
[4] Ultimately, this is not an appeal about whether wireless service is important to Canadians, nor about whether the Act broadly aspires to technological neutrality. No one would seriously dispute these points. Instead, this appeal is about the proper scope of the CRTC’s power under the Act. The carriers’ interpretation would, as the CRTC itself recognized in the proceedings below, overstep principled limits inherent to the access regime.
[5] For these reasons, the CRTC was correct in concluding that it does not have jurisdiction under the access regime to adjudicate disputes over access to 5G small cell antennas situated on public property. Parliament intended to leave access to these sites up to good faith negotiation between carriers and the relevant public authorities such as municipalities. If legislative change is desirable in light of evolving policy considerations, that is the role of Parliament.
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