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Telecom Decision CRTC 2023-349

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Reference: Part 1 application posted on 23 September 2022

Ottawa, 26 October 2023

Public record: 8690-C304-202208529

Community Fibre Company Inc. – Application for consent to place a new pole, strand, and anchors in Franktown, Ontario, part of Beckwith Township

Summary

The Commission denies Community Fibre Company Inc.’s (CFC) application for the Commission to make several orders related to the installation of its facilities in Beckwith Township’s (Beckwith) municipal rights-of-way. In CFC’s view, Beckwith had not granted authorization to install its facilities or provided rights-of-way in a timely manner. Beckwith and all municipalities have an important role to play in facilitating timely access to municipal ROW for Canadian carriers, which is essential for fostering competition and ensuring Canadians in rural areas have access to high-quality services at competitive prices.

The Commission denies the application on the basis that the orders requested by CFC are either resolved, premature, best addressed through other means or not supported by the evidence presented. Specifically, the Commission finds that Beckwith has granted consent to CFC to install the specific pole at issue, and therefore there is no longer grounds for the Commission to exercise its jurisdiction under subsection 43(4) of the Telecommunications Act. Further, the Commission finds that the other relief sought by CFC would be best addressed in a negotiated municipal access agreement (MAA), using the principles established in Decision 2001-23 (the Ledcor decision) and the non-binding model MAA. This would reflect a better balancing of the needs and interests of both parties. The Commission also finds CFC’s request for blanket consent for the installation of new anchors and strand on existing poles owned by Bell Canada and/or Hydro One in Beckwith to be premature. Finally, the Commission finds that there was not sufficient evidence on the record to justify initiating a proceeding to review Beckwith’s actions with respect to demanding a liability waiver and to determine if issuing an administrative monetary penalty would be appropriate.

While the Commission declines to grant the requested relief in the circumstances, in keeping with the Commission’s mission to ensure that Canadians in rural areas have access to a world-class communication system, the Commission reminds Beckwith and all municipalities of the importance of granting timely access to Canadian carriers to install their facilities and provide telecommunications services to their residents.

Application

  1. On 23 August 2022, the Commission received an application from Community Fibre Company Inc. (CFC) requesting several orders related to the installation of its facilities in Beckwith Township’s (Beckwith) municipal rights-of-way (ROW). In particular, CFC requested that the Commission i) exercise its powers under subsection 43(4) of the Telecommunications Act (the Act) to allow CFC to place a new telephone pole with associated strand and anchors in Beckwith immediately; ii) allow CFC to install anchors, as needed, to support the installation of new strand on existing poles in and around other locations within Beckwith; iii) order Beckwith to promptly review and approve future municipal consent requests made by CFC; iv) order Beckwith to enter into a municipal access agreement (MAA); and v) review Beckwith’s actions with respect to demanding a liability waiver for buried fibre and to determine if issuing an administrative monetary penalty (AMP) would be appropriate.
  2. The Commission received an answer from Beckwith and an intervention from the Public Interest Advocacy Centre (PIAC).

Issues

  1. The Commission has identified the following issues to be addressed in this decision:
    • Should the Commission exercise its powers under subsection 43(4) of the Act to allow CFC to place a new telephone pole with associated strand and anchors in Beckwith?
    • Should the Commission allow CFC to install anchors, as needed, to support the installation of new strand on existing poles in and around other locations within Beckwith?
    • Should the Commission order Beckwith to promptly review and approve future municipal consent requests made by CFC for use of public ROW that Canadian carriers are permitted to use under the Act?
    • Should the Commission order Beckwith to enter into an MAA in the form approved by the Commission in previous proceedings regarding the MAA framework?
    • Should the Commission initiate a proceeding to review Beckwith’s actions with respect to demanding a liability waiver for buried fibre in conduit on Crooked Side Road and to determine if issuing an AMP would be appropriate?

Should the Commission exercise its powers under subsection 43(4) of the Act to allow CFC to place a new telephone pole with associated strand and anchors in Beckwith?

Positions of parties
CFC
  1. CFC requested that the Commission exercise its powers under subsection 43(4) of the Act and grant it consent to install a new pole, strand, and anchors in Beckwith.
  2. CFC stated that on 28 July 2022, it requested consent for the placement of a new pole, strand, and anchors in Franktown, in Beckwith, Ontario, from Beckwith’s Chief Administrative Officer. According to CFC, it sent an email to Beckwith’s Chief Administrative Officer which included the Global Positioning System (GPS) coordinates for the new pole. CFC stated that despite follow-up phone calls, it had not received an official response from Beckwith as of 22 August 2022.
  3. CFC submitted that should the Commission grant the requested consent, Beckwith would not suffer any financial hardship. Conversely, CFC argued that it would be harmed and would incur more than $10,000 in additional construction expenses if this request was not approved. CFC added that any delay beyond 15 September 2022 would cause harm to CFC given that construction and permits would be pushed deeper into the winter months, raising construction costs and unnecessarily delaying the availability of CFC’s fibre-to-the-home services to the residents of Beckwith.
PIAC
  1. PIAC supported CFC’s application for consent. PIAC noted that the jurisprudence on matters related to subsections 43(2)-(4) of the Act, as well as past Commission decisions, clearly provide for the Commission’s authority and federal jurisdiction over these matters.Footnote 1 PIAC submitted that all service providers should be granted timely access to public property for installing and expanding their network infrastructure to provide high-speed internet. PIAC added that delaying such access runs counter to the Commission’s universal service objective set out in Telecom Regulatory Policy 2016-496.Footnote 2
Beckwith
  1. In its answer dated 13 October 2022, Beckwith stated that it was very supportive of telecommunications infrastructure in its rural community and would be happy to work with CFC on a solution. Beckwith added that it had asked CFCFootnote 3 to contact the Public Works Superintendent to coordinate a site visit to confirm the exact location before granting its approval because the road allowances in the village were not standard width. Moreover, given that the pole would be located close to the roadside, Beckwith’s public works department wanted to ensure that there would be no visibility issues.
CFC’s reply
  1. In its reply dated 3 November 2022, CFC submitted that had Beckwith responded at almost any time prior to approximately 12 September 2022, CFC would have been able to complete its design, order a new pole, and have it installed before the end of September. CFC stated that, in that case, its application would not have been needed, and the resources expended by CFC and the Commission would not have been wasted on this matter.
  2. In response to Beckwith’s claim that GPS coordinates were insufficient to locate the requested pole location, CFC highlighted that the location was described in the 28 July 2022 email to be at the “southeast corner of the intersection of Powell Street and Church Street.” CFC added that the location of the proposed pole was staked off with a wooden stake and fluorescent paint by CFC staff prior to their 28 July 2022 email.
  3. CFC took issue with Beckwith’s lack of explanation for the delay. CFC argued that municipalities serve a vital role as the gatekeepers of public ROW within their boundaries. In CFC’s view, when access to public ROW is delayed by municipalities, the design, construction, and installation of modern telecommunications services for the benefit of residents is unnecessarily delayed.
Beckwith’s response to the request for information
  1. On 12 December 2022, in response to a request for information (RFI), Beckwith confirmed that on 14 November 2022, after discussions with CFC and clarification of the exact pole location, Beckwith and its public works department granted permission for the pole to be installed at the requested location.
Commission’s analysis
  1. Under subsection 43(4) of the Act, where CFC, a Canadian carrier,Footnote 4 has not been able to obtain consent from the municipality to construct a transmission line, the Commission has the jurisdiction to grant it permission to do so:

    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.

  2. As noted above, in a letter dated 12 December 2022, Beckwith confirmed that on 14 November 2022, it granted permission to CFC for the pole to be installed at the requested location.
  3. Accordingly, since consent was granted by Beckwith for CFC to install the pole, the Commission considers that this issue is resolved. There are no longer grounds for the Commission to exercise its jurisdiction under subsection 43(4) of the Act.
  4. Nevertheless, the Commission considers that speedy responses and timely access to municipal ROW are key to a smooth and efficient deployment of telecommunications networks and to maintaining positive relationships between providers and municipalities.

Should the Commission allow  CFC to install anchors, as needed, to support the installation of new strand on existing poles in and around other locations within Beckwith?

Positions of parties
CFC
  1. CFC requested that the Commission grant it consent to install anchors, as needed, to support the installation of new strand on existing poles in and around other locations within Beckwith.
  2. In response to an RFI, CFC stated that the ownership of existing poles in Beckwith was split between Hydro One and Bell Canada. CFC added that the interaction of pole ownership and municipal consent has a significant influence on proposed telecommunications installations due to inconsistencies in the design standards of different pole owners. According to CFC, one such inconsistency is related to the location of electricity meters for points of presence (PoP):
    • If the pole is owned by Bell Canada, an electricity meter can be placed on a pole or a pole-mounted cabinet.
    • If the pole is owned by Hydro One, an electricity meter cannot be placed on the pole and must instead be placed on a new pole, or municipal consent must be obtained to place the electricity meter and PoP on the ground at least 10 feet away from the pole.
PIAC
  1. PIAC supported CFC’s request that the Commission exercise its powers under subsection 43(4) of the Act to approve the installation of any anchors that might be required to support the installation of new strand on existing poles in Beckwith.
Commission’s analysis
  1. There is no evidence on the record of this proceeding that CFC has submitted applications to Bell Canada and/or Hydro One for the installation of anchors and new strand on existing poles in Beckwith. There is also no evidence that CFC has requested or been denied consent from Beckwith in respect of the placement, removal, maintenance, and operation of its facilities on any of the poles owned by Bell Canada and/or Hydro One in Beckwith.
  2. Given the lack of evidence regarding any requests for consent made by CFC in respect of the poles owned by Bell Canada and/or Hydro One in Beckwith, the Commission is of the view that CFC’s requested relief is premature. CFC’s requested relief essentially amounts to a request for blanket consent for the installation of new anchors and strand on existing poles in Beckwith without any technical or geographic specifications.

Should the Commission order Beckwith to promptly review and approve future municipal consent requests made by CFC for the use of public ROW that Canadian carriers are permitted to use under the Act?

Positions of parties
CFC
  1. CFC stated that it had previously made two requests to Beckwith for permission to make use of municipal ROW:
    • In 2018, it requested to place a buried fibre-optic cable along a path consisting of an opened municipal ROW between Foster Road and St. Fillan’s Road. According to CFC, the Reeve of Beckwith believed it was appropriate for Beckwith to demand payment in the amount of $10,000 to make use of the unopened ROW between Foster Road and St. Fillan’s Road.
    • In 2020, it requested to bury a fibre-optic cable in conduit along Crooked Side Road. According to CFC, Beckwith responded by demanding a liability waiver prior to allowing CFC to place the conduit and cable, citing “major road construction work taking place in the next couple of years.”
  2. CFC stated that as of 2022, no construction had taken place on Crooked Side Road. In its view, Beckwith delayed CFC’s expansion into Prospect, a village within Beckwith, long enough to ensure that the incumbent was first to market. CFC submitted that the denial of access to customers in Prospect has resulted in financial damages to CFC. Moreover, CFC submitted that Beckwith has failed to live up to its obligations under the MAA regime.
  3. CFC stated that other local municipalities (including Lanark County) can process simple requests for municipal consent for new poles placed alongside existing ROW in a matter of days. CFC submitted that the placement of new poles along municipal roads is part of the normal course of business for municipalities and Canadian carriers.
  4. Given Beckwith’s conduct, CFC requested that the Commission order Beckwith to promptly review and approve future municipal consent requests made by CFC for use of public ROW that Canadian carriers are permitted to use under the Act.
PIAC
  1. PIAC stated that CFC’s application indicates the significant barriers faced by service providers from some municipalities in providing access. PIAC submitted that the Commission should use this application to clarify the regulatory regime and work towards ensuring that service providers have timely access to such facilities and/or premises. Otherwise, according to PIAC, there may be more examples in the future where municipalities do not recognize the need to grant timely consent. As a result, the residents of these communities will face the negative impacts of delayed or denied access to high-speed internet.
Commission’s analysis
  1. The Commission recognizes that prompt review and timely approval by Beckwith or any other municipality are critical when a Canadian carrier submits a request for consent to use public ROW. This is important because of the money and resources involved, and because a delay in granting permits can delay construction and raise costs. Acting without delay promotes a competitive market in which Canadians benefit from more affordable services and greater choice.
  2. In Decision 2001-23 (the Ledcor decision), the Commission developed principles to assist carriers and municipalities in negotiating the terms and conditions under which municipalities will grant carriers consent to construct, maintain, and operate transmission lines on or in municipal property, without having to resort to an application pursuant to sections 43 or 44 of the Act.
  3. The Commission considers that granting the relief requested would deny Beckwith the opportunity to review and consider requests for consent from CFC on a case-by-case basis. Such opportunity is important to ensure that proper regard is given for the public’s use and enjoyment of highways and public spaces.
  4. In the Commission’s view, the relief sought by CFC would be best addressed in a negotiated MAA. This would reflect a better balancing of the needs and interests of both parties. However, as discussed below, the parties do not appear to have had serious negotiations on the terms and conditions of an MAA.

Should the Commission order Beckwith to enter into an MAA in the form approved by the Commission in previous proceedings regarding the MAA framework?

Positions of parties
CFC
  1. CFC requested that the Commission order Beckwith to enter into an MAA in the form approved in previous Commission proceedings regarding the MAA framework.
  2. In response to an RFI requesting details of any negotiations that CFC has had with Beckwith regarding an MAA, or any other discussions held between the parties that may be relevant to this proceeding, CFC responded that it had a meeting with Beckwith and provided Beckwith with an MAA that is in place with an adjacent township. CFC added that the Beckwith representative indicated that:
    • the MAA would be reviewed by Beckwith’s staff and council;
    • Beckwith does not have MAAs in place with any other carriers; and
    • municipal consent requests are effectively handled in an ad hoc manner.
Beckwith
  1. In its response to an RFI, by letter dated 12 December 2022, Beckwith stated that it and CFC had not had any communication or discussions regarding negotiations of an MAA, other than the information provided to confirm the location of the pole request. 
Commission’s analysis
  1. As noted in CFC’s 21 February 2023 RFI response, on 9 February 2023, CFC provided Beckwith with a copy of an MAA in place with an adjacent township. Beckwith indicated that the proposed MAA would be reviewed by Beckwith’s staff and council. Based on the responses of CFC and Beckwith, there does not appear to have been any other negotiations between the parties for an MAA.
  2. The Commission has had to issue decisions on a case-by-case basis to resolve disputes on matters related to access to municipal ROW by setting the terms and conditions of an MAA.Footnote 5 However, the Commission generally encourages parties to negotiate a mutually acceptable agreement.
  3. The Commission considers that given Beckwith’s review of the proposed MAA and that the parties do not appear to have had serious negotiations on the terms and conditions of an agreement, it would not be appropriate for the Commission to order Beckwith to enter into an MAA with CFC at this time.
  4. The Commission considers that it would be more appropriate to give parties the time to negotiate a mutually acceptable MAA, using the principles established in the Ledcor decision and the non-binding model MAAFootnote 6 as a resource document and assistance for negotiations.
  5. In particular, the Commission considers that the principles related to the apportionment of liability (found at paragraphs 155-156 of the Ledcor decision and section 11 of the model MAA) and to costs and non-cost related fees (found at paragraphs 60-100, 122, and 138 of the Ledcor decision and in section 8 of the model MAA) appear to be especially relevant to the dispute between the parties and may serve as guidance in their negotiations.
  6. It is also always open to the parties to request staff-assisted mediation, as set out in Broadcasting and Telecom Information Bulletin 2019-184.

Should the Commission initiate a proceeding to review Beckwith’s actions with respect to demanding a liability waiver for buried fibre in conduit on Crooked Side Road and to determine if issuing an AMP would be appropriate?

Positions of parties
CFC
  1. As noted by the Commission in paragraphs 22 and 23 of this decision, CFC’s application described its 2020 request to Beckwith for municipal consent to bury a fibre-optic cable in conduit along Crooked Side Road. CFC submitted that Beckwith should not be permitted to demand blanket liability waivers without also providing the appropriate concessions granted to Canadian carriers under the MAA framework. CFC added that the language approved in Telecom Decision 2020-61 would be more appropriate than a liability waiver. CFC requested that the Commission undertake a proceeding to review Beckwith’s actions with respect to demanding a liability waiver for buried fibre in conduit on Crooked Side Road, and to determine if issuing an AMP would be appropriate.
Beckwith
  1. Beckwith did not comment on CFC’s request.
PIAC
  1. PIAC stated that it did not believe that imposing an AMP on Beckwith would be appropriate. PIAC added, however, that the Commission could consider issuing guidance to municipalities and applicants that unanswered requests for consent to place new poles or bury conduit could attract such sanctions in the future.
  2. PIAC also stated that it did not believe that CFC’s request that the Commission undertake a proceeding to review Beckwith’s actions with respect to demanding a liability waiver for buried fibre in conduit on Crooked Side Road was appropriate based on the present record. However, PIAC submitted that CFC should be free to bring a new application regarding this claim with additional evidence. PIAC was of the view that it was not necessary to open a notice of consultation on such a particular application. However, if after the disposition of this application and perhaps CFC’s future application, municipalities continue to drag their feet on broadband deployment, PIAC submitted that it would be appropriate for the Commission to institute a wide-ranging notice.
CFC’s reply
  1. CFC stated that, while PIAC did not support the use of an AMP, even a relatively small AMP of $5,000 would result in increased compliance by municipalities to attend more closely to their obligations under the Act. CFC submitted that there was justification for a small AMP because:
    • Municipal governments have relatively strict financial controls, and in the event that an unplanned expense arises due to the action or inaction of their staff, oversight by elected officials will occur;
    • Financial concerns are front and centre for staff and elected officials at smaller municipalities, while compliance with the Act is not a consideration that arises for normal day-to-day activities;
    • Even a small financial motivation will change behaviour and encourage staff to act in compliance, rather than face having to justify an unnecessary expense to their elected municipal council; and
    • The fact that the response from Beckwith is a letter from its chief administrative officer rather than legal counsel indicates that there was likely no budget used for its response to the original application.
  2. CFC submitted that, given the delays experienced in this case and others, the Commission must use this proceeding to provide guidance on what the appropriate behaviours are for municipalities when responding to simple municipal consent requests for the placement of new poles, anchors, and other telecommunications equipment. CFC also submitted that the Commission must consider that delays are contrary to the public interest and result in lost revenue for carriers. CFC added that, given carriers are unable to invoice municipalities for lost time and revenue, the Commission must use its power to encourage compliance in responding to municipal consent requests using the tools available to the Commission under the Act.
  3. In response to an RFI, CFC stated that during its 9 February 2023 meeting with Beckwith, CFC raised the question of how the Crooked Side Road issue should be resolved. CFC stated that no satisfactory remedy was provided by Beckwith. However, CFC noted that Beckwith explained that the township ROW on Crooked Side Road was not as wide as their standard, and this formed the basis of their previous decision.
  4. CFC submitted that it does not believe this was a reasonable excuse for demanding the liability waiver, given that other municipalities across Canada are able to operate every day with new telecommunications ducts, manholes, and other equipment being placed into municipal-owned road beds.
Commission’s analysis
  1. Pursuant to section 72.001 of the Act, the Commission has the power to impose an AMP for every contravention of a provision of the Act (other than sections 17 or 69.2) and of a regulation or decision made by the Commission under the Act (other than a prohibition or a requirement of the Commission made under section 41).
  2. As noted in Compliance and Enforcement and Telecom Information Bulletin 2015-111, pursuant to section 72.003 of the Act, applicants may allege a violation and request an AMP as part of their application. In that case, the Commission expects the applicant to clearly indicate all the facts that would demonstrate that the person has committed a violation and that an AMP is appropriate in the circumstances.Footnote 7
  3. The Commission considers that there is not sufficient evidence on the record to justify initiating a proceeding to review Beckwith’s actions with respect to demanding a liability waiver for buried fibre in conduit on Crooked Side Road and to determine if issuing an AMP would be appropriate. In the Commission’s view, CFC has not clearly demonstrated how demanding a liability waiver represents an apparent violation of any provisions of the Act, regulation, or Commission decision such that an AMP proceeding would be warranted. 
  4. CFC cited Telecom Decision 2020-61 to demonstrate the inappropriateness of Beckwith’s request for a blanket liability waiver. However, this decision concerned a dispute between the City of Terrebonne and a specific group of carriers.Footnote 8 It does not create any legally binding obligations on Beckwith. Also, while the Ledcor decision sets out principles that may guide parties in their negotiation of an MAA, at this stage, Beckwith’s alleged failure to abide by these principles does not constitute a violation of a Commission decision which could be subject to an AMP.

Conclusion

  1. In light of all of the above, the Commission denies CFC’s application.
  2. The Commission reminds Beckwith and all municipalities of the importance of granting timely access to Canadian carriers to install facilities to provide telecommunications services to their residents.
  3. The Commission expects Beckwith and all municipalities to respond in a timely manner to requests from Canadian carriers for access to municipal ROW, and in particular, expects that Beckwith will respond in a timely manner to CFC’s requests for municipal consent.
  4. Finally, the Commission encourages Canadian carriers and municipalities to negotiate mutually acceptable terms and conditions of an MAA taking into consideration the principles established in the Ledcor decision.

Policy Direction

  1. The 2023 Policy DirectionFootnote 9 (the Policy Direction) provides that when the Commission is exercising its powers and performing its duties under the Act, it should consider how its decisions can promote competition, affordability, consumer interests and innovation, and in particular, how its decisions consider key objectives, which include, among others:
    • paragraph 2(a): to encourage all forms of competition and investment; and
    • paragraph 2(e): to reduce barriers to entry into the market and to competition for telecommunications service providers that are new, regional or smaller than the incumbent national service providers.
  2. The Commission considers that while the Commission has not granted CFC’s requested orders, the encouragement of Beckwith to respond to future requests for consent in a timely manner and of CFC and Beckwith to negotiate, on a timely basis, a mutually acceptable MAA, advances the Policy Direction’s objectives to encourage all forms of competition and investment and to reduce barriers to entry.
  3. Furthermore, the Commission’s decision is consistent with section 4 of the Policy Direction, which stipulates that the Commission ensure that the measures it imposes through its decisions are efficient and proportionate to their purpose. The Commission’s determinations are efficient and proportionate in that the Commission would refrain from exercising its powers in cases where the relief requested is either resolved, premature, best addressed through a mutually negotiated agreement, or where there is insufficient evidence to support the requested relief.
  4. The Commission also considers that its conclusions are consistent with the policy objective at paragraph 7(f) of the Act.Footnote 10 Specifically, the encouragement that parties negotiate the terms of an MAA would foster increased reliance on market forces, as opposed to a regulatory solution.

Secretary General

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