Telecommunication Carriers and the Future of Municipal Consent under the Telecommunications Act

The reliance on telecommunication services, inclusive of multimedia, internet and phone communications, both for residential as well as for commercial purposes in Canada today has necessitated the installation of an expansive network of telecommunications infrastructure across the country by telecommunication carriers such as Bell Canada (“Bell”), Rogers Communications (“Rogers”), and Telus Communications (“Telus”) among others (together, “Carriers”).

With the development of new and enhanced services (i.e. 5G network installations), continued new infrastructure has been required, much of which lies under our roads and highways. In other words, much of today’s telecommunications infrastructure lies under municipalities’ rights-of-way (“ROW”).     

Carriers therefore need municipal access in order to install, maintain, repair, and basically operate and provide their services to consumers. Under Canadian law however, a municipality’s prior consent is required in order to do so. As a result, municipalities are significantly involved in overseeing the installation of telecommunication infrastructure and in the activities of Carriers.

Such access, and telecommunication services generally, are governed by the Telecommunications Act of Canada (the “Act”). [1] Telecommunications is a federal area of jurisdiction in Canada, under section 92 of the Canadian Constitution.[2] Under the Act, Carriers must engage with municipal governments to install and maintain local infrastructure.  

Specifically, subsection 43(3) Consent of Municipality, states that: “No Canadian carrier or distribution undertaking shall construct a transmission line on, over, under or along a highway or other public place without the consent of the municipality or other public authority having jurisdiction over the highway or other public place.” [3]

Carriers cannot construct a transmission line in a highway or other public place that is the jurisdiction of a municipality without first obtaining the consent of the municipality. Municipal consent is often granted to Carriers by way of a negotiated Municipal Access Agreement (MAA). For larger municipalities, entering into a long-term MAA with Carriers seems to be the conventional practice.   

An MAA typically outlines the rights and obligations of both parties and allows the municipality to impose conditions on access to its highways and lands. If a dispute arises, either party may file an application before the Canadian Radio-television and Telecommunications Commission (CRTC), the designated adjudicative body established for such disputes under the Act. The CRTC may consider, for example, applications from Carriers who may put forward that municipal consent is not required for a particular type of work, or is being required under unacceptable terms.[4]

However, as telecommunications is an area of federal jurisdiction, this brings into question the limits of municipal authority to regulate telecommunications matters. Municipal consent to Carriers’ access is therefore not so straightforward. The scope of municipal consent under subsection 43(3) has become a grey area under the more general language of the Act and CRTC decisions over the years. This causes challenges for both municipalities and Carriers in their working relationship with one another and in the negotiation of new MAAs.     

Why would this be a concern for municipalities? Because municipalities want to have enough oversight to ensure that their ROWs and lands are not damaged and when accessed, are properly restored back to their intended function, and for the purpose of public safety. What municipalities may encounter, and indeed the nature of public complaints which they feel the need to guard against, include the following:

• Damage to underground municipal or other utilities’ infrastructure as a result of Carriers’ access and works;
• Improper restoration of ROWs, public lands (i.e. re-paving, restoring boulevards and sidewalks);
• Improper restoration of private lands (i.e. re-sodding a homeowner’s front yard after a service drop);
• Safety issues resulting from Carriers’ methods of construction or quality of restorations;
• Utility or other telecommunication Carriers’ services being impacted by a Carrier’s work;
• Other utilities, property owners, or individuals holding the municipality liable for infrastructure or property damage, or for any injuries resulting from a Carrier’s work.

The above challenges are a reality for Carriers and municipalities. All of this may change, however, with an upcoming application before the CRTC that could have far-reaching implications on both parties.

With their existing MAA having expired in December 2020, after almost four years of renewal negotiations between Rogers and the City of Ottawa, Rogers filed a Part 1 Application with the CRTC in July 2024 (the “Application”). This Application was as a result of what Rogers described to be an “impasse on terms relating to relocation cost sharing, the rights of way and other public places covered by the MAA, and blanket obligations to comply with provincial, municipal and other local laws, bylaws, directives, standards and guidelines as may be established or amended from time to time [including with respect to fees and permits]”.[5] Several other provisions are also at issue, the most impactful of all of these perhaps being Rogers’ dispute as to the applicability and enforceability of municipal and provincial bylaws, statutes, regulations, standards, and guidelines on Carriers, given that this is a federal area of jurisdiction.

Ottawa then filed its Answer to this Application, raising additional issues of its own. Several parties have since intervened, being the Cities of Toronto and Mississauga in Ontario, The Federation of Canadian Municipalities, Telus, Quebecor, and the Public Interest Advocacy Centre, as this Application has garnered some understandable attention. As Ottawa states in its Answer, the CRTC’s ruling on these issues will have a significant impact on the relationship between municipalities and Carriers as a whole.[6]

These authors no doubt agree (consider for instance, the implications of a ruling that might place limits on the enforceability of a municipal road occupancy permit or by-laws on Carriers’ access to ROWs). This Application also reflects the very same issues Carriers and many other municipalities are grappling with in their own MAA negotiations, and the stalemate in negotiations between Ottawa and Rogers alleged in this Application is emblematic of similar experiences by Carriers and other municipalities, and of a larger challenge: trying to negotiate resolution to areas of dispute with what are sometimes only general prior CRTC rulings that leave room for interpretation.

What the parties to this Application are looking for, and indeed what Carriers and municipalities are in need of, is clearer direction on the issues commonly in dispute between Carriers and municipalities. Many of us are hoping that, regardless of what positions it takes, the CRTC will use this opportunity to clarify areas of dispute for the benefit of both municipalities and Carriers. It remains to be seen how the CRTC will respond, but municipalities across the country should take a keen interest in the outcome, as it could significantly shape the scope of municipal authority respecting Carriers’ access to ROWs and other public places moving forward. Alternatively, a ruling that provides only general direction, in the tradition of some CRTC decisions past, may be intended as a clear signal that in the CRTC’s view many of these issues are best left to the parties to negotiate.

Let’s stay tuned….