The future economic and social benefits of Canada's next-generation broadband networks rely on timely and reasonable access to the "passive infrastructure," from rooftops to bus stops and rights of way, that supports wireline and wireless telecommunications network facilities, according to a new report from the C.D. Howe Institute.
In Building Bridges for 5G: How to Overcome the Infrastructure Barriers to Deployment of Canada's Next-Generation Broadband Networks, authors Leslie Milton, Jay Kerr-Wilson and Paul Burbank make seven recommendations to modernize and streamline the regulatory framework for carrier access to passive infrastructure in Canada.
Traditionally, passive infrastructure has referred to the poles and conduits owned by hydro and telephone companies that support wireline networks, or in the case of wireless networks, the towers and building rooftops where antennas are located.
Although 5G will continue to use this traditional passive infrastructure, it will also require the dense deployment of small antennas or "small cells" on non-traditional supporting infrastructure, including buildings and street furniture, as well as telephone and electric utility poles, with each supporting structure also connected to fibre-optic cables, write Milton, Kerr-Wilson and Burbank.
Notably, the current regime for carrier access to passive infrastructure is in need of serious amendment and largely modelled on provisions in the predecessor to the 1993 Telecommunications Act, the Railway Act.
"The absence of an effective federal regulatory framework for carrier access to passive infrastructure is a material barrier to the construction of next-generation telecommunications infrastructure in Canada," say the authors. "Carriers are in many instances at the mercy of public authorities and other property owners and developers with respect to access terms and face construction delays and the choice between accepting unreasonable access terms and higher costs, lengthy and uncertain dispute resolution, less efficient deployment routes (if available) or forgoing deployment altogether."
Under the existing regulatory framework, the negative ramifications include: regulatory uncertainty, resulting in reduced investment; delayed deployment of broadband networks, such as 5G and rural development; increased costs for the deployment of broadband networks, resulting in reduced investment and higher broadband prices; and reduced spillover effects from telecommunications investment on economic growth and social inclusion and prosperity. Equally significant, the authors continue, is how the COVID-19 pandemic has starkly underscored the imperative of expanding broadband infrastructure to close Canada's digital divide.
The majority of Milton, Kerr-Wilson and Burbank's recommendations include amendments to the Telecommunications Act to clarify that the Canadian Radio-television and Telecommunications Commission (CRTC) has explicit authority to address access issues involving both wireline and wireless facilities, on all forms of support structures and on all lands.
Additionally, among their recommendations is consulting on amendments to Innovation, Science and Economic Development Canada's antenna-siting procedures to address small cell deployment and delays in antenna siting.
If implemented, the authors explain, these recommendations would eliminate many of the obstacles carriers face when expanding their networks as well as facilitate timely and cost-effective construction of the communications system that will power Canada's post-pandemic recovery and economic and social prosperity in the digital economy.
Leslie Milton is a Partner practising primarily in the areas of communications law and competition law at Fasken Martineau DuMoulin LLP.
Jay Kerr-Wilson is Partner, and co-leader of the Technology, Media and Telecommunications Group at Fasken Martineau DuMoulin LLP.
Paul Burbank is an Associate in the Communications Law Practice Group at Fasken Martineau DuMoulin LLP. He provides advice on telecommunications and broadcasting in Canada.