Supreme Court rules that transmission lines don’t include G5 antennas

In a 7-2 decision, the Supreme Court of Canada ruled that the access regime for telecom companies under the Telecommunications Act, which allows them access to public properties for installation and maintenance purposes, doesn’t apply to the small cell antennas necessary for 5G network coverage around the country.

With previous cellphone technology, some 13,000 large towers were required nationwide for network coverage. However, 5G technology requires between 250,000 and 300,000 small cell antennas. Both need a hard-wired connection, but the Federal Court of Appeal and the majority of the Supreme Court found that the Canadian Radio-television and Telecommunications Commission (CRTC) correctly interpreted the Act to say that the transmission line only applied to the hard-wired connection.

“Parliament intended to leave access to these sites up to good faith negotiations between carriers and the relevant public authorities such as municipalities,” Justice Mary Moreau wrote for the majority.

“If legislative change is desirable in light of evolving policy considerations, that is the role of Parliament.”

Although the Act was last changed in 1993, the majority denied that the evolution of technology did not require dynamic statutory interpretation to include wireless transmissions. Further, technological neutrality in this case could mean the types of transmission lines—copper, coaxial cable, and fibre-optic—instead of wireless.

“From a general point of view, the most interesting feature of this case is that it dealt with the application of a fairly old statutory provision and a new technology,” says University of Ottawa law professor Paul Daly, who acted on behalf of the Canadian Telecommunications Association as an intervenor in the case.

“There were no 5G antennas when Parliament put the words ‘transmission line’ in the Telecommunications Act.”

He says that dynamic statutory interpretation can be quite controversial. While it makes sense to account for new technology, the question becomes whether that is a matter for the courts, Parliament, or administrative tribunals like the CRTC. The Supreme Court’s advice was that for the purpose and context of the statute, where it was relatively narrow, there is not as much scope to apply it to new technology.

“For the majority, transmission line has hard-wired connotations, which are simply not applicable to 5G antennas,” Daly says.

“Going forward, there is no need for a separate theory of dynamic statutory interpretation.”

Ajay Gajaria, a partner with Aird & Berlis LLP in Toronto and past chair of the CBA’s municipal law section, says the decision is good for municipalities because it gives them important control of public infrastructure and the right-of-way.

“The practical importance is that there will either be a legislative amendment to the Telecommunications Act or there will be greater cooperative agreements across Canada between the telecommunications companies and individual or groups of municipalities in the broad rollout of 5G technology — and in particular the small cell antennas that will go onto significant pieces of municipal infrastructure,” Gajaria says.

Municipalities need to effectively manage a wide range of assets, including bus shelters, telephone poles, and the physical infrastructure where the antenna sites would be attached.

“It’s important not only for an element of control but coordination with other utilities, as they often have rights of access into the right-of-way, and for infrastructure capital planning and coordination, and regional variation,” Gajaria says.

While there will likely be different regional contexts across Canada, this decision allows for good-faith agreements to be negotiated between telecommunications companies and local governments.

Gajaria says there has been friction on that front in the past, given the competing interests around the same physical infrastructure and different dominant objectives.

In dissent, Justice Suzanne Côté, with Justice Sheilah Martin concurring, said the CRTC’s narrow interpretation makes no sense given that these small antennas still require a hard-wired connection the access regime grants. She also argued that separating the antennas from the access regime is against technological neutrality.

The Telecommunications Act was supposed to work with the Radiocommunication Act, which governs signals such as cellphone transmissions, as an “interconnected statutory scheme,” she noted.

“The Radiocommunication Act provides no mechanism for the Minister to manage disputes that may arise between a carrier and a public entity in the event of an impasse over access,” Côté wrote.

“Adopting my colleague’s interpretation would have the effect of preventing the CRTC from determining the conditions of access to a site contemplated for the installation of 5G small cells. This means that a municipality or other public authority would, in effect, have a veto if a carrier could not reach an agreement with it to obtain access to an installation site.”

Daly says it will be tricky to administer the issue going forward, given the required level of negotiation.

Gajaria thinks this issue is best addressed as a legislative amendment rather than a judicial solution. Either amend the Telecommunications Act to expand the definition of transmission line to include antennas or add a similar dispute resolution section to the Radiocommunication Act.

He says there’s a practical solution if the parties can’t reach an amicable access agreement that serves both interests.

“If there needs to be an arbitrator over and above the decision-making of a locally elected responsible government, there is a path forward and a methodology that clearly exists under the Telecommunications Act.”

Given the preponderance of conspiracy theories swirling around 5G technology, this decision could allow for more pushback against its installation on public property in municipalities, where local leadership might potentially be more captivated by that reasoning.

“5G technology is publicly and politically controversial, and this is definitely going to mean that municipalities have more scope to refuse,” Daly says.

“Ultimately, this means it will play out in negotiations.”