From: Leslie Milton, Jay Kerr-Wilson and Paul Burbank
To: François-Philippe Champagne, Minister of Innovation, Science and Industry
Date: February 11, 2022
Re: Time to Repave the Information Highway
Next-generation broadband networks are key enablers of Canada’s future economic and social prosperity.
The new 5G technology is expected to be transformative; adding billions of dollars to Canada’s gross domestic product, thousands of jobs, and myriad social benefits.
This will require timely and reasonable access to the passive infrastructure that supports wireline and wireless network facilities and the land on which these supporting structures and facilities are placed.
The US and the UK, among other nations, have made recent material changes to regulatory frameworks for carrier access to passive infrastructure to support the deployment of next-generation networks.
In contrast, Canada’s regulatory framework remains largely unchanged from last century’s regime for monopoly telegraph and telephone infrastructure, and has no mention of wireless technology.
That regime is plainly inadequate today.
Our new C.D. Howe Institute paper makes seven recommendations to modernize and streamline Canada’s framework.
Most of these involve amendments to the Telecommunications Act to clarify that the Canadian Radio-television and Telecommunications Commission is given has explicit authority to address access issues on all forms of support structures and on all lands for both wireline and wireless networks.
It is estimated that 5G will add nearly $40 billion to Canada’s gross domestic product (GDP) by 2025, create 250,000 permanent jobs and significantly improve the quality of Canadians’ lives. Wireline networks are integral to the transport of 5G services and are in need of expansion and upgrade to satisfy the continued explosive growth in demand for data and to implement the network technologies and innovations required to support high-quality broadband access across Canada at affordable rates.
A critical input to the effective and efficient deployment and expansion of these next-generation telecommunications networks is timely access, on reasonable terms and conditions, to the passive infrastructure that supports wireline and wireless telecommunications network facilities and the land on which these structures and facilities are deployed.
Wireline networks are largely supported by poles and underground conduit owned by the telephone and electric utility companies, often located along roadways and other rights-of-way. Antennae for wireless networks traditionally have been supported by large towers and building rooftops.
Although 5G will continue to use this traditional passive infrastructure, the next generation – carriage of massive amounts of data at extremely high speeds – will require the dense deployment of small antennae or “small cells” on non-traditional infrastructure, including buildings and all manner of street furniture such as streetlights, signs and bus shelters, as well as telephone and electric utility poles.
Meanwhile, the current regime for passive infrastructure is largely modelled on provisions originally set down the 19th century Railway Act, and incorporated into 1993’s Telecommunications Act.
Amending that Act forms the basis of our seven recommendations:
- Amend the Telecommunications Act to make it explicit that carriers’ “qualified right of access” – their right to access rights-of-way and other places for the construction, operation and maintenance of a transmission line – and CRTC jurisdiction over such access, formally encompass wireless transmission facilities along with the legacy wireline installations.
- Amend the Act to make it explicit that carriers’ qualified right of access and the CRTC’s jurisdiction over such access encompass all publicly owned land and railway rights-of-way, bridges and crossings.
- Amend the Act to make it explicit that the CRTC has jurisdiction to establish terms and conditions of carrier access to all publicly owned structures capable of supporting wireline and wireless transmission facilities, including municipal street furniture, as well as poles and conduit owned by provincial and municipal electric utilities and other utilities.
- Amend the Act to give the CRTC authority to establish generally applicable baseline standards for carrier access to rights-of-way, public places, and supporting infrastructure under its jurisdiction and to permit interested parties to seek a waiver of the standard terms on a case-by-case basis.
- Amend the Act to give the CRTC explicit authority to establish baseline federal standards for carrier access to multi-tenant buildings and to land under development for multi-tenant residential or commercial use that apply in the absence of substantially similar provincial regulation.
- Amend the Act to oblige the CRTC and parties to conduct dispute resolution proceedings quickly and efficiently in order to avoid delays and added expenses in obtaining approvals to build new facilities.
- Consult on amendments to Innovation, Science and Economic Development Canada’s antenna-siting procedures to address small cell deployment and delays in antenna siting.
Implementation of these recommendations will help achieve core Canadian policy objectives – including closing the digital divide and enhancing Canada’s economic growth and prosperity and social inclusion.
Leslie Milton, Jay Kerr-Wilson and Paul Burbank all practise in telecommunications law at Fasken Martineau DuMoulin LLP.
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The views expressed here are those of the authors. The C.D. Howe Institute does not take corporate positions on policy matters.