ARCHIVED - Telecom Procedural Letter Addressed to Distribution List

Ottawa, 30 May 2017

Our reference: 8690-C126-201612250

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Distribution List

RE: Request for a suspension or adjournment of an Application by the City of Calgary concerning a municipal rights-of-way Bylaw and a proposed Municipal Consent and Access Agreement

This letter addresses a request, dated 23 January 2017, by Bell Canada, Rogers Communications, Shaw Communications Inc., TELUS Communications Company and Zayo Canada (collectively, the Carriers), to suspend or adjourn the above-named application by the City of Calgary (Calgary) filed on 30 November 2016 (the Application).

In the Application, Calgary requested that the Commission make certain determinations concerning the access and use of municipal rights-of-way (ROW) by telecommunications service providers (TSPs) pursuant to its ROW Bylaw^Footnote1 and its proposed Municipal Consent and Access Agreement (MCAA). Specifically, Calgary requested that the Commission

1. issue a declaration and determination that the Carriers may rely upon the ROW Bylaw for performance of their obligations under section 43 of the Telecommunications Act (the Act) in respect of any highway or other public place located in the City of Calgary; and such determinations and advice as the Commission may deem advisable in respect to section 123 of the ROW Bylaw, concerning the appeal right of a Carrier to the Commission in respect to any dispute that may arise under the ROW Bylaw; and
2. in the event the Commission declines to issue the declaration above, approval of the terms and conditions of the proposed MCAA, for the purpose of performance by the Carriers of their obligations under section 43 of the Act in respect of any highway or other public place located in the City of Calgary; and such determinations and advice as the Commission may deem advisable with respect to modifications to the proposed MCAA.

On 23 January 2017, the Carriers requested that the Commission suspend consideration of the Application while they challenged the constitutional validity of Calgary’s ROW Bylaw in the Alberta Court of Queens’ Bench (the Alberta Court).

In the alternative, the Carriers requested that, should the Commission determine that adjournment of the Application is not appropriate, an extension of time be granted to file comments in response to the Application of 30 days from the date of any such determination or from the date its constitutional challenge has been filed in the Alberta Court, whichever occurs first.

By Commission staff letter dated 26 January 2017, the filing of interventions and answers to the Application was suspended, pending the Commission’s ruling on the Carriers’ procedural request.

Calgary and the Federation of Canadian Municipalities (FCM) filed comments on the Carriers’ request to suspend consideration of the Application.

The Carriers (which did not include Zayo Canada) filed reply comments along with a copy of the application filed by the Carriers with the Alberta Court on 10 March 2017.

Positions of parties

With respect to the relief sought by Calgary regarding the ROW Bylaw, the Carriers argued that the Commission can only grant such relief if the ROW Bylaw is constitutionally applicable to the Carriers and there is serious doubt as to the Commission's ability to make general declaratory orders on the constitutionality of the ROW Bylaw.

The Carriers argued that having two parallel proceedings - one before the Commission and another before the Alberta Court - would be inefficient, result in duplication of resources of parties, and could potentially result in inconsistent findings of fact and/or legal conclusions. The Carriers also argued that an adjournment would be consistent with Telecom Decision 2016-479^Footnote2 , in which the Commission suspended proceedings while the constitutional issues raised in that application were still before the courts.

With respect to the alternative relief sought by Calgary regarding the terms and conditions of the draft MCAA, the Carriers argued that given the MCAA would come into play only if the request regarding the ROW Bylaw is denied, it would be a waste of resources to deal with the MCAA until the Court has ruled on the constitutionality of the ROW Bylaw. Furthermore, the Commission lacks the authority under the Act to grant the relief requested regarding the MCAA. Calgary is seeking a ruling of general application to all TSPs, however the Commission's ability to set terms of access under the Act is only on a case-by-case basis.

In response, Calgary argued that its request regarding the ROW Bylaw does not seek “general declaratory orders” on the constitutionality of the ROW Bylaw. Calgary submitted that it is not necessary for the courts to rule on the constitutional validity of the ROW Bylaw for the Commission to grant the declaratory relief that it is seeking in its Part 1 application. In addition, Calgary clarified that it is only seeking to determine the terms and conditions under the MCAA as would apply between the City and the Carriers named as Respondents to its Application, not all TSPs.

FCM filed submissions in support of Calgary’s position, arguing^Footnote3  that the Carriers’ request for a stay was based on a fundamental mischaracterization of the central legal question raised by Calgary’s Application. FCM stated that Calgary was not asking the Commission to rule on the constitutional applicability of its ROW Bylaw to the Carriers, rather Calgary was asking the Commission to confirm its interpretation of the expression “consent of the municipality” found in subsection 43(3) of the Act, which relief is completely within its statutory authority.
In FCM’s view, answering the question whether “a bylaw” can be used to grant municipal consent under the Act, was a wholly distinct, administrative matter from determining whether “this bylaw” was constitutionally valid.
In reply, the Carriers argued that the ROW Bylaw is an attempt to regulate essential and vital elements of telecommunications, which is the “core” of federal jurisdiction and exclusively within Parliament’s power to regulate^Footnote4 . The Carriers also argued that maintaining the status quo is acceptable and there is no compelling and present need to determine the request regarding the MCAA.

Commission’s analysis

The question to be determined in response to the Carriers’ procedural request is whether the Commission should suspend consideration of either part, or both parts, of Calgary’s Part 1 application pending a decision by the Alberta Court regarding the constitutional validity of Calgary’s ROW Bylaw.

Calgary has not requested that the Commission make general declaratory orders on the constitutionality of the ROW Bylaw, which is the relief sought by the Carriers before the Court. In its Application concerning the ROW Bylaw, Calgary has raised the issue as to whether Calgary can give its consent for the purpose of section 43 of the Act by means of the ROW Bylaw. Further, Calgary’s request concerning the MCAA raises the matter of the appropriate terms and conditions, as between the City and the Carriers named as Respondents to its Application, for access to highways and public places for the purposes of constructing, maintaining and operating transmission lines. In the past, in the case of disputes regarding Municipal Access Agreements (MAAs), the Commission has ruled on those provisions in the MAA on which the parties disagreed.

Both parts of Calgary’s application raise matters that involve interpreting provisions of the Act, which fall squarely within the Commission’s exclusive statutory authority and specialized knowledge and expertise. In addition, the statutory interpretation issues can be determined in the absence of a ruling by the Alberta Court regarding a declaration as to constitutional validity of the ROW Bylaw. Finally, the Commission considers that the core matter for its determination – disputed provisions regarding terms and conditions for access – must be examined without further delay.

In light of all of the foregoing, the Commission considers that it is neither necessary nor appropriate for it to suspend Calgary’s Part 1 Application pending the constitutional litigation initiated in the Albert Court. Accordingly, the Commission denies the Carriers’ request to suspend its consideration of Calgary’s Application.

Re-establishment of the process for Calgary’s Application

As noted above, in the Commission staff letter dated 26 January 2017, the filing of interventions and answers to the Application was suspended, pending the Commission’s ruling on the Carriers’ procedural request.

In view of the Commission’s determination above, the Carriers and any interested parties may file submissions on Calgary’s Application regarding the ROW Bylaw by 13 June 2017, serving copies on Calgary. Calgary may file reply comments by 19 June 2017, serving copies on the Carriers and any interested parties.

With respect to the proposed MCAA, the Carriers and any interested parties may file submissions on Calgary’s Application regarding the Proposed MCAA by 30 June 2017, serving copies on Calgary. The Carriers are requested to identify in detail which sections of the proposed MCAA each carrier contests and propose alternate wording. Calgary may file reply comments by 5 July 2017, serving a copy on the Carriers and any interested parties.

Sincerely,

Original signed by

Danielle May-Cuconato
Secretary General

Distribution List

Date modified:

2017-05-30