CANADIAN FIRMS CAN'T BE FORCED TO ACCEPT POLE ACCESS, COURT RULES
The Canadian Radio-TV & Telecom Commission (CRTC) can’t require power companies to make their poles available to cable companies, Canada’s Supreme Court ruled Fri. in Canadian Cable TV Assn. v. Barrie Public Utilities. But the Canadian Cable TV Assn. (CCTA) immediately called on the federal govt. to change the law to broaden CRTC’s powers, saying the result would be higher costs for consumers.
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“The federal government has to move quickly and amend the Act,” CCTA Pres. Janet Yale said. “We will be asking the Minister of Industry [Allan Rock] and federal parliament to amend the Telecom Act to ensure that the CRTC is in a position to resolve disputes between cable companies and electrical power utilities when a negotiated solution cannot be reached.” The ruling could be costly for cable companies and could raise prices for consumers, Yale warned: “This decision is now going to cause uncertainty. Access to the poles could cost more. Certainly, the concern is about the cost and the implication for prices to consumers.”
The Canadian Electricity Assn. also suggested pole rental rates could rise, saying: “In addition to concerns that the CRTC attempted to assert jurisdiction over matters of provincial authority, the industry also took exception with the rate mandated by the CRTC, which electric utilities contend is below the cable companies’ fair share of the costs of power poles. In other words, the CRTC had ordered power utilities to subsidize the provision of cable TV services at the expense of all electricity ratepayers.”
Judge Charles Gonthier suggested cable companies negotiate rates with local utilities, as they had done before the 1999 CRTC rate-cap of $15.89 (Cdn.) per pole per year was set: “The CCTA originally sought access to the utilities’ power poles by contract. When it could not reach terms agreeable to it by those means, it opted for the untested avenue of a CRTC regulatory solution. If that avenue proves unavailable, there may yet be other avenues, be they contractual or regulatory.”
Lawyers for the Ontario utilities suggested provincial regulators could oversee local contract negotiations, as is done in at least 4 other provinces (Alberta, B.C., Newfoundland and Nova Scotia). But Yale insisted a national regulator was needed when the parties couldn’t agree: “If the negotiations break down, you need someone who can establish a rate where the parties are not able to agree.”
Amending the law as cable companies suggest could raise constitutional issues of federal-provincial jurisdiction, the court suggested. Parliament gave the CRTC power to regulate the use of “transmission lines” to broadcast “intelligence” but not to regulate “distribution lines” such as hydroelectric power poles: “The utilities’ power poles do not serve to transmit intelligence. They serve to transmit electricity,” Judge Gonthier wrote for the majority. But Judge Michel Bastarache, the lone dissenter in the 6-1 judgment, said the federal telecom law “empowers the CRTC to aid federal undertakings by granting them access to the infrastructure of provincially regulated utilities when they have otherwise failed to obtain access on acceptable terms.” The 6 other judges, Bastarache said, based their ruling on a narrow reading of the law and didn’t deal with the larger constitutional issue.