Telecom - Secretary General Letter addressed to Pamela Dinsmore (Rogers Communications Canada Inc.)
Ottawa, 5 February 2024
Reference(s): 8690-R28-202304468
BY E-MAIL
Pamela Dinsmore
Rogers Communications Canada Inc.
1 Mount Pleasant Road, 4th Floor
Toronto, ON M4Y 2Y5
cable.regulatory@rci.rogers.com
Subject: Application by Rogers Communications Inc. seeking immediate and final orders directing Bell Canada and its affiliates and TELUS Communications Inc. to process requests to attach small cells to their poles in accordance with their approved support structure tariffs
On 4 July 2023, the Commission received a Part 1 application from Rogers Communications Inc. (Rogers) related to the attachment of wireless equipment, such as small cells, on the poles of Bell Canada and its affiliates, Bell MTS, Télébec and Northwestel (collectively, Bell), and TELUS Communications Inc. (Telus). Small cells are low-powered radio access points that are critical to the expansion of 5G networks across the country.
In its application, Rogers requested an interim order directing Bell and Telus to process and grant small cell permits. These permits would allow Rogers to attach small cells to Bell and Telus’ poles in accordance with their approved support structure tariffs (SST) and sections 24, 25 and subsections 27(2) of the Telecommunications Act (the Act). Rogers requested that the interim order remain in effect until the earlier of either a final determination on its Part 1 Application, or a decision in the proceeding announced in Telecom Regulatory Policy 2023-31 regarding the placement of wireless facilities, including small cells, on incumbent local exchange carrier (ILEC) support structures.
The Commission denies Rogers’ request for an interim order.
As 5G networks continue to expand across the country, finding sufficient appropriate locations to attach small cells can be both challenging and costly. Given the industry-wide importance of this issue, the Commission considers that it is in the public interest to examine the broader policy issues raised by Rogers in Notice of Consultation 2024-25 (TNC 2024-25), published today.
This proceeding will examine whether the Commission should modify existing rules that allow third parties to attach wireless equipment—including small cells—onto ILEC-owned or -controlled support structures across Canada. This proceeding will examine a number of issues relevant to Rogers’ application, including: (i) the applicability of existing SSTs to wireless facilities; (ii) the types of wireless facilities that will be deployed; and (iii) what regulatory changes, if any, may be required to facilitate the deployment of advanced wireless technologies in Canada.
The Commission recognizes the importance of expanding access to faster, higher quality cellphone services for Canadians. The launch of TNC 2024-25 will allow the Commission to have a regulatory framework in place, based on a fulsome public record, before ruling on the placement of wireless facilities on ILEC-owned or -controlled support structures.
The Applicable Test
The criteria that the Commission generally applies to assess applications for interim relief are set out by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (Attorney General [1994] 1 S.C.R. 311) (RJR-MacDonald): are that there is a serious issue to be determined; that the party seeking the interim relief will incur irreparable harm if the relief is not granted; and that the balance of convenience, taking into account the public interest, favours granting the interim relief. To be granted interim relief, an applicant must demonstrate that its application meets all three criteria.
In its response to Rogers’ application for an interim order, Telus submitted that most requests for interim relief, or interlocutory injunctions, are prohibitive in nature, as they constrain action to preserve the status quo. However, when they require positive action, they become mandatory interlocutory injunctions and should be assessed with the modified RJR-MacDonald test set out in R v Canadian Broadcasting Corp, (2018 SCC 5). Telus argued that Rogers’ application for an interim order is such an application because, if granted, it would require Bell and Telus to do something, i.e., process and approve permits for small cell attachments on their poles pursuant to their existing tariffs and rates, and therefore the modified RJR-MacDonald test applied in this case.
The main issue in Rogers’ application is whether Bell’s and Telus’ existing SSTs apply to wireless attachments, such as small cells. Given that this issue will be addressed by the Commission in TNC 2024-25 the nature of the interim relief sought by Rogers and whether it would effectively involve positive action by Bell and Telus is not clear. In addition, the choice of the test to be applied in determining whether to grant interim relief is a matter solely within the Commission’s discretion. The Commission is of the view that it is not necessary to deviate from its general practice and has assessed this application using the criteria set out in RJR-MacDonald.
Is there a serious issue to be determined?
Rogers submitted that the SSTs are not restricted to wireline attachments and cover other wireless equipment such as small cells. As such, it considers that Bell’s and Telus’ refusal to grant access to poles for the purpose of attaching small cells is a breach of sections 24, 25 and of subsection 27(2) of the Act.
Telus submitted that Rogers has failed to demonstrate that it has breached its existing SST because the Commission has not issued a decision on the issue of small cell placement, and that the Act prohibits the offering of a service absent a Commission approved tariff and rates.
This criterion has a low threshold: the standard of the application is that it should not be vexatious or frivolous. In assessing whether Rogers has satisfied the first part of the test, the Commission considers that Rogers has raised serious issues to be determined, including whether Bell’s and Telus’ existing SSTs apply to the attachment of wireless facilities. Rogers has therefore met this first criterion.
Will Rogers suffer irreparable harm if the interim order is not granted?
Rogers argued that the failure to grant interim relief will result in irreparable harm to itself and other wireless service providers that compete with Bell and Telus. It noted that without the ability to attach small cells to their poles, Rogers and competitors are forced to pursue more costly options and have had their 5G deployments unnecessarily delayed. Eastlink and Quebecor supported Rogers, arguing that delays in approving applications to attach wireless equipment harms their ability to compete.
Telus asserted that rate comparison between ILEC support structures and city light standards is not relevant because existing SSTs do not contain rates for pole-mounted small cells, and there is no way to know what those rates would be. It added that, despite indicating that its 5G deployment is unnecessarily delayed, Rogers has publicly reported that it continues to expand Canada's largest 5G network.
In a letter dated 15 December 2015, the Commission stated that the threshold for irreparable harm is high, and in a letter dated 23 October 2020, it stated that an applicant must demonstrate that the harm is real, definite, unavoidable, and cannot be repaired later. Further, as set out in Canada (Attorney General) v. Oshkosh Defence Canada Inc, (2018 FCA 102), irreparable harm, by its quality, cannot be redressed by monetary compensation, and the harm cannot be speculative; there must be evidence that an applicant will suffer irreparable harm if the interim relief is denied. The harm alleged by Rogers relates to the delays, inconvenience, and higher costs of deploying its small cells network on structures other than Bell’s or Telus’ support structures under their existing SSTs.
The Commission recognizes that it would be more efficient and convenient for Rogers to have access to Bell’s and Telus’ support structures to deploy its 5G network, and that Rogers is likely suffering some harm due to not having access to these poles. However, Rogers has been able to deploy a sizeable national network without access to support structures. As such, the harm inflicted by the lack of access to these structures has not impeded Rogers from developing its 5G network or caused it to fall so far behind other telecom providers that it could not be made up without the immediate grant of its interim request.
Regarding higher costs to attach small cells to city owned infrastructure, the Commission notes that this comparison assumes that the current SSTs apply to the attachment of wireless facilities, and that no modifications need to be made to account for these facilities, either in rates or terms and conditions. However, the issue of whether the ILECs’ SSTs apply to wireless facilities has not been resolved by the Commission. As such, the Commission considers that the perceived monetary harm cited by Rogers is speculative.
In light of the above, the Commission considers that Rogers has not demonstrated that it would suffer irreparable harm should the Commission not grant its interim request; therefore, it has not met the second criterion.
Does the balance of convenience favour granting the stay?
Rogers argues that the public interest, as expressed in the policy objectives of the Act and the 2023 Policy Direction, rests with fair and effective access to public good services, such as ILEC poles, that facilitate competition, affordability, and timely and efficient deployment of competing wireless networks.
Telus submitted that there is a public interest in an industry-wide proceeding on whether the existing SSTs should accommodate small cell attachments to ILEC support structures and is of relevance to the entire industry. It noted that, as Rogers has been deploying small cells across the country, the public interest will not suffer as a result of a denial of the requested relief.
The Commission notes that Rogers’ interim relief would not be easily reversible should the TNC 2024-25 proceeding make determinations that are inconsistent with the interim order. The Commission also notes that successful interim requests generally involve maintaining the status quo or setting an interim rate for an established service. In such cases, there is either a limited impact on the market or possible retroactivity if the final determination is different than the interim order. This case is neither, as granting Rogers’ request could have a significant market impact and would be onerous to reverse.
The Commission agrees that there is public interest in fair and effective access to public good services, such as ILEC poles, that facilitates timely and efficient deployment of competing wireless networks. However, outstanding questions relating to the placement of small cells on poles remain unresolved. There is currently no Commission framework in place to regulate such access in a fair and effective manner. Further, granting Rogers’ interim request would create an imbalance in access among competitive wireless providers. This could trigger the filing of similar applications by other competitive wireless providers, further delaying the overall process.
Therefore, the Commission considers that competitors, industry, and the public interest would benefit more from having a regulatory framework based on a fulsome record in place before ruling on the placement of wireless facilities on ILEC-owned or -controlled support structures. Accordingly, the Commission considers that the balance of convenience, taking into account the public interest, favours denying Rogers’ interim request.
In light of the above, the Commission determines that Rogers did not satisfy the RJR-MacDonald criteria for granting interim relief and denies Rogers’ request.
Yours sincerely,
Marc Morin
Secretary General
c.c.: Stephen Schmidt, Telus, regulatory.affairs@telus.com
Yanick Boily, Quebecor, regaffairs@quebecor.com
Philippe Gauvin, Bell, bell.regulatory@bell.ca
Marielle Wilson, Eastlink, regulatory.matters@corp.eastlink.ca
Alexis Kampman, CRTC, alexis.kampman@crtc.gc.ca
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