By Denis Carmel
GATINEAU – Late in 2019, in following up its universal service objective decision, the CRTC decided to study the barriers to building new facilities or to accessing or interconnecting with existing facilities in order to extend broadband networks more efficiently into underserved areas, including areas where, due to a lack of such networks, speeds don’t meet the service objectives.
Of course, in March 2020, the pandemic hit, and a vast number of Canadians went home to work, becoming completely dependent on their home’s high-speed Internet to continue work and school. Access to high-speed Internet rapidly became a political issue with important sums of money talked about to bring service and capacity to outlying areas.
It became obvious the deployment of new infrastructure was impeded by the costs and delays of access to utility poles by those who received subsidy to connect those regions.
In May 2020, the province of Québec saw the creation of a Co-ordination Table on Access to Support Infrastructure with the Ministry of Economy and Innovation, Hydro-Québec, Bell and Telus, as pole owners and more recently, ISED. Their role was to, amongst others, facilitate the deployment of broadband by cutting through red tape and mediation.
On October 30, the Commission launched a call for comments regarding potential regulatory measures to make access to poles owned by Canadian carriers more efficient.
The interventions were due Friday, December 18.
First, this is not a new problem, nor a new technology but the pandemic put it at the forefront. And one of the major issues is actually constitutional.
Constitutional issue
The CRTC can mandate access (and rates charged) on telephone poles but not hydro poles, which fall under provincial or municipal ownership, and while the incumbent phone companies own many, most poles belong to the electric companies. In Québec for instance, 61% of the poles are owned by the public utility. In its notice of consultation, the CRTC recognizes the Supreme Court ruled in 2003 but “In Telecom Decision 2008-62, the Commission found that when Canadian carriers provide access to support structures, including support structures they do not own but for which they have the right to grant permits for access, they are providing a telecommunications service within the meaning of the Act and are therefore subject to the Commission’s jurisdiction.”
However, as the Government of Québec says in its intervention, this interpretation is the CRTC’s own, has not been tested and it is not recognized by the province. Therefore, this process will not apply to Hydro-Québec, whatever the outcome.
As well, BC Hydro could not be clearer: “While BC Hydro recognizes the importance of enabling the deployment of efficient broadband-capable networks, that deployment cannot compromise BC Hydro’s operation of its electricity system or its ability to meet statutory obligations. To be clear, BC Hydro has been entrusted with responsibility for almost all of British Columbia’s complex and hazardous electricity system. The Commission does not have expertise in electricity matters and should take great care not to put BC Hydro’s electricity system at any risk whatsoever.”
Telus for its part, proposes the exact opposite, as have other carriers: “While the Commission does not presently have the jurisdiction to regulate the rates applicable to access utility poles, it can nevertheless declare that access to pole infrastructure is a paramount national objective and critical to the deployment of communication facilities across the country, regardless of whether the infrastructure in question is owned by a telecommunications company, utility company, or other organization. The Commission should ask the federal government to consider legislative amendments to bring within its jurisdiction access to provincially-regulated utility infrastructure for the purpose of installing telecommunications equipment.”
“In PIAC’s view, pole access is a problem that the CRTC likely cannot fix on its own,” the consumer group says in its intervention. “However… PIAC recommends, instead an intergovernmental and cooperative approach.”
That approach is similar to their recommendation to the Broadcasting and Telecommunications Legislative Review Panel, which recommended national support structure rules.
Besides, starting a war with the provinces will not exactly accelerate deployment of broadband or 5G.
Process issue
This issue predates the existence of the CRTC as the telecommunications regulator. In 1972 its predecessor, the Canadian Transport Commission, awarded access to a cable company in Magog, Québec to Bell telephone poles. That decision was maintained by the Supreme Court and included a very public fight headed by the late Omer Girard, a local cable company owner who became known as the “Hero of Magog”, for fighting Bell.
However, as Bell highlights in its December 16 submission, the sheer volume of requests by other providers is a challenge, even for a company of its size. “Although the Commission is asking about access to poles owned by Canadian carriers in general, parties to TNC 2019-406 have expressed concerns with respect to access to poles in Québec in particular,” reads its submission.
“In this respect, we note that, although we are the largest support structure-owning incumbent local exchange carrier (ILEC) in Manitoba, Ontario, Québec, Prince Edward Island, New Brunswick, Nova Scotia and Newfoundland & Labrador; nearly 70% of support structures to which access was requested within our ILEC territories were located in the province of Québec. This constitutes over 100,000 requests for access to support structures processed in 2019, or an average of over 380 structures reviewed and processed per working day in Québec alone.”
Of course, Quebecor, Cogeco, Rogers (and Shaw, complaining about Telus) are arguing the incumbent telco is using dilatory measures for anti-competitive reasons and each provide ample anecdotes to demonstrate their contention. Of course, many believe an incumbent would never go the extra mile to allow its competitor to have access to their facilities but in Québec the political authorities have taken charge and called the pole owners on the carpet.
The file is now being handled by the Premier himself. Quebec is clearly not fooling around with this issue.
Bell also noted it “became clear to us that we needed to address the recent influx of less experienced government broadband funding award recipients in order to improve the quality of permit applications submitted by these licensees and ultimately help them deliver their projects. We accordingly assigned managers to licensees in order follow technical hurdles associated with their permits in a holistic view. We also implemented a new Technical Assistance Centre (Centre D’Excellence) which allows new licensees to dial a toll-free number to obtain guidance from qualified personnel with respect to the support structure permitting process as well as with respect to particular issues associated with their permit application.”
But it only applies in Québec.
The Federation of Canadian Municipalities (whose members are owners of roads, ductwork, traffic lights, street furniture and other structures key to telecom growth) also encouraged the Commission to improve access to poles not only through amendments to existing regulations, but also in creating a multi-stakeholder forum that engages private and public actors. “In doing so, FCM encourages the Commission to draw on best practices, such as the newly formed committee in Québec. Alongside improved co-ordination, FCM encourages the Commission to create an independent dispute resolution mechanism tailored to support structure access issues,” reads its submission.
Others, such as the Canadian Communication Systems Alliance and to a lesser extent Rogers make references to an ongoing process in the U.S., where the two organizations encourage the Commission to import some of its solutions such as how “The FCC’s 2018 Third Order implements ‘one large step and several smaller steps to improve and speed the process of preparing poles for new attachments, or make-ready’,” says the CCSA submission.
The FCC describes that make-ready plan as: “we fundamentally shift the framework for the vast majority of attachments governed by federal law by adopting a new pole attachment process that includes ‘one touch make-ready’ (OTMR), in which the new attacher performs all make-ready work. OTMR speeds and reduces the cost of broadband deployment by allowing the party with the strongest incentive—the new attacher—to prepare the pole quickly by performing all of the work itself, rather than spreading the work across multiple parties.”
Regulated pole tariffs have been in place since 1995 and have been regularly updated and likely need to be again but it appears that the solution lies in co-operation and involvement by local, regional, provincial, and federal authorities. In Québec the government was taken to task because its election promise (broadband for everyone by the end of 2022) was impeded, not by money, but process.
Replies are due January 19, 2021.
