The country’s biggest wireless carriers are increasingly turning to the courts to stop Ottawa’s policies to boost competition in the industry.
BCE Inc.’s Bell Mobility division is the latest, which is asking the Federal Court to kill roaming and network sharing obligations that Industry Canada ruled incumbent carriers have to give new entrants who win licences in the upcoming 700 MHz spectrum auction.
No date for the hearing has been set yet.
The rules, announced in March, would give the new entrants – which, if they participate in the auction would include small carriers like Videotron, Wind Mobile, Mobilicity and Public Mobile – continue to have the right to have their subscriber traffic roam on networks of incumbents like Bell, and oblige incumbents to share their antenna towers with new entrants.
Bell’s application comes eight days before companies have to put down deposits with Industry Canada to participate in the 700 MZh auction, scheduled to start Jan. 14, 2014. Should the roaming and tower sharing rules be quashed it would essentially devalue the spectrum new carriers buy.
The incumbents like Bell already have to meet these obligations for new carriers that won spectrum in the 2008 auction, part of a strategy by the federal government to help ease the burden on new entrants of building new networks from scratch. Without the ability to roam on the networks of Bell, Rogers Communications and Telus Corp,. new carriers would have stunted coverage until their networks are mature. Similarly, without the ability to share their antennas on the existing infrastructure of the incumbents, new carriers would have to completely bear the cost of putting up new antennas.
Despite the 2008 requirements, new carriers claim that the incumbents regularly find ways to throw roadblocks in their way, including claims that existing towers can’t bear the weight of more antennas or fighting over the fees being charged.
But Bell [TSX: BCE] says not only shouldn’t the government be allowed to extend the terms of those licences it shouldn’t be allowed to add the conditions to the new licences, scheduled to be auctioned starting Jan. 14, 2014.
“The minister lacks jurisdiction the impose roaming and tower sharing requirements, either to new or existing licences,” the Bell application says.
It’s antennas “are private property and in many cases are located on land or buildings leased or licensed from private landowners under contracts.” Industry Canada’s March rules would amend those contracts, Bell says it will argue.
There are “well-established presumptions of statutory interpretation against interference with vested rights and confiscation of private property rights in absence of clear statutory language” in the Radiotelecommunication Act,” Bell will argue before the federal judge.
Bell is following Telus, which earlier this year served notice that it will ask a judge to overturn Ottawa’s new policy of reviewing the right of incumbent carriers to buy new entrants.
The battles new carriers have with incumbents over roaming and tower access are usually held behind closed doors but can spill into public. For example, at June’s annual regulatory panel at the Canadian Telecom Summit, Edward Antecol, Wind’s vice-president of legal affairs, complained “we pay more to put an antenna on a (incumbent) tower than it costs to put up a new tower … “We’re paying atrocious rents.”
In its Federal Court application, Bell alos said it will argue that the licence conditions imposed by Industry Canada clash with the Harper government’s 2007 spectrum policy framework, which said that “market forces should be relied upon (by the government) to the maximum extent feasible,” while “regulatory measures … should be minimally intrusive.”
Bell’s application said it asked Industry Minister James Moore to withdraw the new roaming and tower sharing licence conditions, but Moore refused.
A spokesperson for Public Mobile said the carrier, which operates in Ontario and Quebec, won’t comment on the Bell application because it is so close to the Sept. 17 deadline for filing deposits for the 700 MHz auction