Alberta court strikes down Calgary telecom bylaw

Originally published by
Author: Greg O’Brien

CALGARY – The Court of Queen’s Bench of Alberta told the city of Calgary in no uncertain terms that it has no right to regulate where, when, why and how telecom infrastructure can be installed in the city.

In January Bell Canada, Rogers Communications, Shaw Communications and Telus Corp. filed a motion to strike down a bylaw passed by the city to regulate the process for, access and use of municipal rights of way for telecommunications providers.

In a decision released Friday, the court agreed with the four large carriers that the Telecommunications Act takes precedence and passing the bylaw was beyond the city’s purview because telecom is a federal jurisdiction.

The telecom companies and the city once had a municipal access agreement (MAA) which governed their relationship because carriers and municipalities do need to work co-operatively, but it expired in 2014. “When it expired, the parties failed to reach a new agreement,” reads the court decision. “The City proposed its own model, which the Telecoms rejected. The Telecoms then asked the CRTC to direct the parties to negotiate in good faith if possible. The CRTC did so in August 2015, but negotiations were never resumed.”

At about the same time, Calgary was considering a new fibre infrastructure strategy and “was concerned about securing space for its own network amidst competition from private entities,” it reads. “According to one of the City’s witnesses, the City’s most important objective was to enable it to make decisions on the allocation of relevant rights-of-way. The City was also concerned about competitors forcing multiple installations rather than sharing existing infrastructure, thereby degrading or exhausting rights-of-way.”

Whatever the reasoning, the bylaw can’t stand because the federal government and the Telecom Act takes precedence, among other reasons, said the court.

“Telecoms are brought under the application of the Bylaw by the definition of ‘telecommunications services’… Therefore, the pith and substance of that provision is to supplant the federal scheme and to assume a significant measure of procedural and substantive control over the location, construction, operation, maintenance and preservation of telecommunications,” reads the decision of justice Jolaine Antonio.

Noting many cases of this sort between municipalities and telecom companies over the years, the decision says the “Supreme Court has repeatedly affirmed Parliament’s exclusive legislative authority over telecommunications undertakings, including works that are entirely situated within a province, since telecommunication depends on the transmission and reception of signals across borders.”

The bylaw “does far more than regulate the Telecoms’ right of access to City rights-of-way: it gives the City the ability to deny access and to control most aspects of the physical operation of telecommunications,” explains the judge who then added the evidence “demonstrates that, in fact, a dominant purpose of the legislators was to create an alternate scheme by which the City could exert greater control over Telecoms. In effect, the Bylaw minutely regulates telecommunications operations in City rights­ of-way, allowing the City to determine essential matters such as the siting of networks and the schedule of construction and maintenance.

“If reproduced on a national scale, the Bylaw would eviscerate the Telecommunications Act,” adds the decision.

“To the extent that the Bylaw applies to telecommunication services, it is ultra vires the City’s legislative authority and invalid.”

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