ARCHIVED - Telecom Decision CRTC 2002-38

Telecom Decision CRTC 2002-38

Ottawa, 5 July 2002

Part VII Application by Bell Mobility Inc., Microcell Telecommunications Inc., Rogers Wireless Inc. and TELUS Mobility - Disconnection of wireless facilities at Lester B. Pearson International Airport

Reference: 8622-B38-01/02

The Commission denies an application by Bell Mobility Inc., Microcell Telecommunications Inc., Rogers Wireless Inc. and TELUS Mobility for interim orders prohibiting the Greater Toronto Airports Authority from disconnecting their telecommunications facilities currently located at Lester B. Pearson International Airport.

The Application

1.

On 27 June 2002, Bell Mobility Inc., Microcell Telecommunications Inc., Rogers Wireless Inc., and TELUS Mobility (collectively "the carriers") filed a Part VII application with the Commission seeking a number of interim orders against the Greater Toronto Airports Authority ("the GTAA").

2.

Specifically, the carriers requested that the Commission issue, pending agreement between the carriers and the GTAA on conditions regarding the removal and replacement of the carriers' existing facilities and on the construction of new facilities to be used by the carriers, an immediate interim order pursuant to sections 42, 43(2), 57 and 61 of the Telecommunications Act ("the Act"):

(a) granting the carriers permission to continue to maintain and operate their facilities at the Lester B. Pearson International Airport ("the airport"); and

(b) enjoining the GTAA from taking any steps to remove or disconnect the telecommunications facilities of the carriers located in the airport.

3.

In the alternative, the carriers requested immediate interim orders from the Commission, pursuant to sections 57 and 61 of the Act, enjoining the GTAA from taking any steps to remove or disconnect the carriers' telecommunications facilities located at the airport, pending:

(a) the approval by the Commission of GTAA interconnection agreements and tariffs for its proposed Managed Wireless Services system ("MWS system"); and

(b) agreement between the carriers and the GTAA on terms and conditions of any required disconnection of the carriers' existing facilities and migration to the proposed MWS system at the airport.

Background

4.

The carriers provide telecommunications services to the public and are Canadian carriers under the Act. The carriers hold licences issued by the Minister of Industry, pursuant to the provisions of the Radiocommunication Act, which authorize them to offer wireless telecommunications services throughout Canada.

5.

The GTAA is a corporation that manages, operates and develops the airport under the terms of a 60-year lease with Transport Canada.

6.

The carriers currently operate telecommunications facilities at the airport under the terms of leases negotiated either with the GTAA or Transport Canada, the prior operator of the airport.

7.

Most of these leases terminated in March 2002, and were extended twice by the GTAA. The current extensions terminated on 30 June 2002 and the GTAA had indicated its intention to disconnect the equipment of those carriers whose leases had expired on that date. However, in correspondence with the Commission, the GTAA undertook not to disconnect the carriers' equipment at the airport until noon on 8 July 2002.

Test for Interim Relief

8.

Before granting a party interim relief under section 61(2) of the Act, the Commission has required the party requesting the relief to demonstrate that it meets the criteria for interim relief set out by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. [1987] 1 S.C.R. 110, as modified by the Court's decision in RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311 ("the RJR-MacDonald criteria"). These criteria are that:

(a) there is a serious issue to be determined;

(b) the party seeking relief will suffer irreparable harm if the interim relief is not granted; and

(c) the balance of convenience, taking into account the public interest, favours retaining the status quo until the Commission has disposed of the issues.

Position of the carriers

9.

The carriers argued that they met all three of the RJR-MacDonald criteria.

10.

The carriers submitted that there was very clearly a serious question to be determined in this case, viz. the continued provision of wireless telecommunications services to the airport, and more particularly, to the travelling public and the government departments which make use of wireless services at the airport.

11.

The carriers further submitted that if they were not granted the requested interim orders, wireless telecommunications service users at the airport would suffer irreparable harm that cannot be compensated for in damages. According to the carriers, the GTAA's decision to deny airport users access to wireless telephone service at the airport constitutes an avoidable and unwarranted inconvenience to the travelling public and a threat to public safety.

12.

The carriers submitted that in assessing the balance of convenience, the Commission should consider the impact on the public of a disconnection by the GTAA of the carriers' equipment at the airport. In the carriers' view, there were no technical, operational or safety reasons why the GTAA would need to disconnect the carriers' equipment at the airport.

13.

The carriers concluded that, in their view, they had clearly met the RJR-MacDonald criteria and should therefore be granted the immediate interim relief requested.

Position of the GTAA

14.

The GTAA submitted that the carriers must meet all three of the RJR-MacDonald criteria in order for interim relief to be granted. The GTAA noted that interim relief is an extraordinary remedy, which seeks to set aside the status quo in advance of a full legal determination of an issue on its merits.

15.

The GTAA submitted that the carriers had failed to meet any of the RJR-MacDonald criteria.

16.

In the GTAA's view, this application involved a situation where certain parties to private commercial negotiations became dissatisfied with those negotiations and attempted to transform that dissatisfaction into a legal claim. The GTAA submitted that the carriers had not established any basis in law for the relief claimed under the Act. In the GTAA's view, the carriers had not demonstrated that there was a serious question to be tried.

17.

The GTAA submitted that the carriers failed to demonstrate irreparable harm to themselves as required by the test.

18.

The GTAA noted that, in order to demonstrate irreparable harm, it is the carriers who must be faced with irreparable harm, not third parties. According to the GTAA, the carriers had not made a single claim of irreparable harm, which would be suffered by them if interim relief was not granted.

19.

The GTAA also noted that, in seeking to establish irreparable harm, the carriers had claimed that inconvenience to the travelling public and some unspecified threat to public safety constituted irreparable harm sufficient to meet the requirement. The GTAA argued that submissions dealing with inconvenience and public safety are matters relating to the public interest and should be considered under the balance of convenience requirement of the test.

20.

Finally, the GTAA submitted that any harm that might be suffered by the carriers would clearly be compensable in damages.

21.

The GTAA argued that, in considering the balance of convenience, the Commission must consider which of the parties would suffer the greater harm from the granting or refusal of interim relief.

22.

The GTAA submitted that the carriers have not demonstrated that the public interest is at risk if interim relief is not granted. At best, the GTAA argued the carriers have demonstrated some inconvenience to the public. With respect to the carriers' claim of a risk to public safety, the GTAA argued that there would be no safety risk associated with the disconnection.

23.

The GTAA noted that, due to the unreliability of current wireless telecommunications services at the airport, safety and security agencies such as the RCMP do not use the wireless services of the carriers. For example, the GTAA submitted that the Peel Regional Police use a V-Com radio service, while the GTAA itself uses a two-way radio system for internal fire, police and emergency co-ordination purposes as well as for other public safety purposes. According to the GTAA, safety and security agencies would be unaffected by a disconnection of the carriers' equipment.

24.

The GTAA also noted that the public would continue to have access to pay telephones, public Internet services, and emergency response telephones located throughout the airport.

25.

With respect to the balance of convenience generally, the GTAA submitted that if the Commission interfered with the contractual relationships between itself and the carriers, the GTAA and its expectations arising from those relationships would be significantly harmed.

Reply comments of the carriers

26.

The carriers, in reply, reiterated their position that they had met all three of the RJR-MacDonald criteria. The carriers submitted that the potential disconnection of their equipment raised serious issues regarding the integrity of their networks and the scope of the protection provided to carriers by section 43(2) of the Act. With respect to the irreparable harm criteria, the carriers asserted that disconnection of wireless services at the airport would undermine the public's confidence in the wireless telecommunications network. The carriers asserted that they had met the balance of convenience criterion due to the disruption a disconnection would cause to subscribers and their own customer contact groups, and the GTAA would not be inconvenienced if relief was granted. With respect to public safety issues, the carriers alleged that wireless subscribers at the airport might lose the ability to call 9-1-1 using their wireless terminals. The carriers asserted that safety and security agencies use the carriers' services as a back up to their primary two-way radio systems.

Commission determination

27.

The Commission has considered the arguments submitted by the parties.

28.

The Commission agrees with the GTAA that the RJR-MacDonald criteria requires the carriers to demonstrate that the carriers themselves will suffer irreparable harm. The Commission finds that the carriers have not established that they will suffer irreparable harm in the absence of relief should disconnection in this one location result from their dispute with the GTAA.

29.

The Commission further agrees with the GTAA that public inconvenience and safety are public interest considerations that should be taken into account in assessing the balance of convenience criterion. While acknowledging the importance of these considerations, the Commission notes that as set out above, the GTAA has provided assurances that safety and security services at the airport would not be affected by a disconnection of the carriers' equipment since the carriers' wireless telecommunications services have a limited role in providing communications services for security or emergency purposes. The Commission also notes that the public would continue to be able to access a number of other telecommunications services at the airport.

30.

An applicant for interim relief is required to establish that it has met all three of the RJR-MacDonald criteria. In light of the Commission's determination with respect to irreparable harm, it is not necessary for the Commission to consider whether the carriers have successfully met the other criteria.

31.

The Commission denies the carriers' application for interim relief.

Secretary General

This document is available in alternative format upon request and may also be examined at the following Internet site: www.crtc.gc.ca