Telecoms win court fight in Calgary with implications for 5G rollout

Canada’s four largest telecommunications companies’ won a court battle with the City of Calgary over using city property for telecom infrastructure, access that’s increasingly critical as they prepare to build 5G networks.

BCE Inc., Rogers Communications Inc., Shaw Communications Inc. and Telus Corp. launched a challenge at the Court of Queen’s Bench of Alberta against Calgary ’s new municipal rights-of-way bylaw that extended the city ’s power to regulate telecom infrastructure when it went into effect in January.

The telecoms argued the rules would hurt their ability to efficiently deploy 5G networks, which will blanket cities with tens of thousands of small cells affixed to buildings, street lamps and bus stops.

In a judgment issued last week, Justice Jolaine Antonio sided with the telecoms and ruled the bylaw does not apply to telecommunications services. She found the city overstepped its authority since the federal government has jurisdiction over telecommunications.

“I find that the bylaw intrudes on the protected core of federal power over telecommunications, and that the intrusion amounts to a serious or significant intrusion on the core power,” Antonio ruled.

By placing “virtually every aspect” of telecom infrastructure deployment under local oversight, Antonio ruled the bylaw “thereby impedes the ability of telecoms to develop national networks in an orderly, reliable and efficient manner.”

The judgment comes as cities and telecoms rework their relationships for the shift to small cells from traditional 50-metre cell towers. It can take at least a year to get approval for a macro tower, a process that isn’t realistic for 5G building blocks that are about the size of pizza boxes.

In the U.S., the telecom regulator moved to speed up the approval process by imposing time limits on how long a city can take to approve infrastructure and limiting the fees municipalities can charge for the right to use city property. Canada’s regulator has not yet introduced similar measures, but is considering the matter as part of its review of the broadcast and telecom acts.

As it stands, federal siting rules require telecoms to consult with municipalities, where civic officials may have legitimate concerns over safely setting up equipment in city rights-of-way. But this decision affirms the federal government has final say.

“We are very pleased with the court’s decision as it reinforces the federal jurisdiction over telecommunications services,” Telus spokesman Richard Gilhooley said in a statement, adding Telus will work with Calgary to determine next steps, he said.

Calgary is reviewing the decision, city solicitor and general counsel Glenda Cole said in a statement.