CASUAL LEGAL: The Validity of Bylaws Addressing Access to Municipal Rights-of-Way by Telecommunications Providers

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The Validity of Bylaws Addressing Access to Municipal Rights-of-Way by Telecommunications Providers

By Breanne Schwanak

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

In a recent decision, the Alberta Court of Appeal considered whether a bylaw that regulates the process for access and use of municipal rights-of-way was constitutionally valid, insofar as it applied to telecommunications services.

Section 43 of the Telecommunications Act, SC 1993, c 38, provides that a telecommunications carrier is not permitted to construct a transmission line on a highway or other public place under the jurisdiction of a municipality without the municipality’s consent. Where consent cannot be obtained on acceptable terms, the carrier can apply to the Canadian Radio-television and Telecommunications Commission (the “CRTC”) for permission to construct the transmission line subject to any conditions that the CRTC determines.

Historically, municipal consent had been obtained through negotiated access agreements. However, following an impasse in negotiations, the municipality enacted a bylaw that set out the terms and conditions of consent and processes for private utility providers, including providers of telecommunications services, seeking to access a municipal right-of-way. The bylaw was described as creating a “permitting scheme” through which the municipality granted itself the discretion to “dictate the location, scope and schedule of installation, removal, construction, maintenance, repair, replacement, operation, relocation, adjustment and alteration of telecommunication facilities”, including the excavation, repair or restoration of municipal rights-of-way.

Certain telecommunications providers operating in the municipality applied for a declaration the bylaw was of no force and effect in its application to telecommunications providers. The chambers judge found the inclusion of “telecommunications services” in the definition of “utility provider” in the bylaw was ultra vires the municipality and therefore invalid. The municipality appealed.

On appeal, the Alberta Court of Appeal upheld the decision of the chambers judge and directed the words “telecommunications services” be removed from the definition of “utility provider” in the bylaw. The Court noted that jurisdiction over interprovincial undertakings, which includes telecommunications, has been exclusively allocated to Parliament to allow a singular regulator to consider concerns beyond each municipality. The Court stressed that the regulator is the CRTC, and the Telecommunications Act has legislated the manner in which municipal consent and access is to take place.

The Court found that the dominant purpose of the bylaw, as it related to telecommunications providers, was to “regulate the location, construction, operation, maintenance and preservation of telecommunications networks”, being a matter within the exclusive jurisdiction of the federal government. As a result, the Court determined the bylaw, as it applies to telecommunications, was ultra vires the municipality.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.