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Telecom Decision CRTC 2002-38
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Ottawa, 5 July 2002
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Part VII Application by Bell Mobility Inc., Microcell
Telecommunications Inc., Rogers Wireless Inc. and TELUS Mobility
– Disconnection of wireless facilities at Lester B.
Pearson International Airport
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Reference: 8622-B38-01/02
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The Commission denies an application by Bell Mobility
Inc., Microcell Telecommunications Inc., Rogers Wireless Inc. and
TELUS Mobility for interim orders prohibiting the Greater Toronto
Airports Authority from disconnecting their telecommunications
facilities currently located at Lester B. Pearson International
Airport. |
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The Application |
1. |
On 27 June 2002, Bell Mobility Inc., Microcell Telecommunications
Inc., Rogers Wireless Inc., and TELUS Mobility (collectively
"the carriers") filed a Part VII application with the
Commission seeking a number of interim orders against the Greater
Toronto Airports Authority ("the GTAA"). |
2. |
Specifically, the carriers requested that the Commission issue,
pending agreement between the carriers and the GTAA on conditions
regarding the removal and replacement of the carriers' existing
facilities and on the construction of new facilities to be used by
the carriers, an immediate interim order pursuant to sections 42,
43(2), 57 and 61 of the Telecommunications Act ("the
Act"):
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(a) granting the carriers permission to continue to maintain
and operate their facilities at the Lester B. Pearson
International Airport ("the airport"); and
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(b) enjoining the GTAA from taking any steps to remove or
disconnect the telecommunications facilities of the carriers
located in the airport.
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3. |
In the alternative, the carriers requested immediate interim
orders from the Commission, pursuant to sections 57 and 61 of the
Act, enjoining the GTAA from taking any steps to remove or
disconnect the carriers' telecommunications facilities located at
the airport, pending:
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(a) the approval by the Commission of GTAA interconnection
agreements and tariffs for its proposed Managed Wireless Services
system ("MWS system"); and
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(b) agreement between the carriers and the GTAA on terms and
conditions of any required disconnection of the carriers' existing
facilities and migration to the proposed MWS system at the
airport.
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Background
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4. |
The carriers provide telecommunications services to the public
and are Canadian carriers under the Act. The carriers hold licences
issued by the Minister of Industry, pursuant to the provisions of
the Radiocommunication Act, which authorize them to offer
wireless telecommunications services throughout Canada.
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5. |
The GTAA is a corporation that manages, operates and develops the
airport under the terms of a 60-year lease with Transport Canada. |
6. |
The carriers currently operate telecommunications facilities at
the airport under the terms of leases negotiated either with the
GTAA or Transport Canada, the prior operator of the airport.
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7. |
Most of these leases terminated in March 2002, and were extended
twice by the GTAA. The current extensions terminated on 30 June 2002
and the GTAA had indicated its intention to disconnect the equipment
of those carriers whose leases had expired on that date. However, in
correspondence with the Commission, the GTAA undertook not to
disconnect the carriers' equipment at the airport until noon on 8
July 2002.
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Test for Interim Relief
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8. |
Before granting a party interim relief under section 61(2) of the
Act, the Commission has required the party requesting the relief to
demonstrate that it meets the criteria for interim relief set out by
the Supreme Court of Canada in Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd. [1987] 1 S.C.R. 110, as modified
by the Court's decision in RJR-MacDonald Inc. v. Canada (Attorney
General) [1994] 1 S.C.R. 311 ("the RJR-MacDonald
criteria"). These criteria are that:
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(a) there is a serious issue to be determined;
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(b) the party seeking relief will suffer irreparable harm if
the interim relief is not granted; and
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(c) the balance of convenience, taking into account the public
interest, favours retaining the status quo until the Commission
has disposed of the issues.
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Position of the carriers
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9. |
The carriers argued that they met all three of the RJR-MacDonald
criteria.
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10. |
The carriers submitted that there was very clearly a serious
question to be determined in this case, viz. the continued provision
of wireless telecommunications services to the airport, and more
particularly, to the travelling public and the government
departments which make use of wireless services at the airport.
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11. |
The carriers further submitted that if they were not granted the
requested interim orders, wireless telecommunications service users
at the airport would suffer irreparable harm that cannot be
compensated for in damages. According to the carriers, the GTAA's
decision to deny airport users access to wireless telephone service
at the airport constitutes an avoidable and unwarranted
inconvenience to the travelling public and a threat to public
safety.
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12. |
The carriers submitted that in assessing the balance of
convenience, the Commission should consider the impact on the public
of a disconnection by the GTAA of the carriers' equipment at the
airport. In the carriers' view, there were no technical, operational
or safety reasons why the GTAA would need to disconnect the
carriers' equipment at the airport.
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13. |
The carriers concluded that, in their view, they had clearly met
the RJR-MacDonald criteria and should therefore be granted the
immediate interim relief requested.
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Position of the GTAA
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14. |
The GTAA submitted that the carriers must meet all three of the
RJR-MacDonald criteria in order for interim relief to be granted.
The GTAA noted that interim relief is an extraordinary remedy, which
seeks to set aside the status quo in advance of a full legal
determination of an issue on its merits.
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15. |
The GTAA submitted that the carriers had failed to meet any of
the RJR-MacDonald criteria.
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16. |
In the GTAA's view, this application involved a situation where
certain parties to private commercial negotiations became
dissatisfied with those negotiations and attempted to transform that
dissatisfaction into a legal claim. The GTAA submitted that the
carriers had not established any basis in law for the relief claimed
under the Act. In the GTAA's view, the carriers had not demonstrated
that there was a serious question to be tried.
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17. |
The GTAA submitted that the carriers failed to demonstrate
irreparable harm to themselves as required by the test.
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18. |
The GTAA noted that, in order to demonstrate irreparable harm, it
is the carriers who must be faced with irreparable harm, not third
parties. According to the GTAA, the carriers had not made a single
claim of irreparable harm, which would be suffered by them if
interim relief was not granted.
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19. |
The GTAA also noted that, in seeking to establish irreparable
harm, the carriers had claimed that inconvenience to the travelling
public and some unspecified threat to public safety constituted
irreparable harm sufficient to meet the requirement. The GTAA argued
that submissions dealing with inconvenience and public safety are
matters relating to the public interest and should be considered
under the balance of convenience requirement of the test.
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20. |
Finally, the GTAA submitted that any harm that might be suffered
by the carriers would clearly be compensable in damages.
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21. |
The GTAA argued that, in considering the balance of convenience,
the Commission must consider which of the parties would suffer the
greater harm from the granting or refusal of interim relief.
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22. |
The GTAA submitted that the carriers have not demonstrated that
the public interest is at risk if interim relief is not granted. At
best, the GTAA argued the carriers have demonstrated some
inconvenience to the public. With respect to the carriers' claim of
a risk to public safety, the GTAA argued that there would be no
safety risk associated with the disconnection.
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23. |
The GTAA noted that, due to the unreliability of current wireless
telecommunications services at the airport, safety and security
agencies such as the RCMP do not use the wireless services of the
carriers. For example, the GTAA submitted that the Peel Regional
Police use a V-Com radio service, while the GTAA itself uses a
two-way radio system for internal fire, police and emergency
co-ordination purposes as well as for other public safety purposes.
According to the GTAA, safety and security agencies would be
unaffected by a disconnection of the carriers' equipment.
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24. |
The GTAA also noted that the public would continue to have access
to pay telephones, public Internet services, and emergency response
telephones located throughout the airport.
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25. |
With respect to the balance of convenience generally, the GTAA
submitted that if the Commission interfered with the contractual
relationships between itself and the carriers, the GTAA and its
expectations arising from those relationships would be significantly
harmed.
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Reply comments of the carriers
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26. |
The carriers, in reply, reiterated their position that they had
met all three of the RJR-MacDonald criteria. The carriers submitted
that the potential disconnection of their equipment raised serious
issues regarding the integrity of their networks and the scope of
the protection provided to carriers by section 43(2) of the Act.
With respect to the irreparable harm criteria, the carriers asserted
that disconnection of wireless services at the airport would
undermine the public's confidence in the wireless telecommunications
network. The carriers asserted that they had met the balance of
convenience criterion due to the disruption a disconnection would
cause to subscribers and their own customer contact groups, and the
GTAA would not be inconvenienced if relief was granted. With respect
to public safety issues, the carriers alleged that wireless
subscribers at the airport might lose the ability to call 9-1-1
using their wireless terminals. The carriers asserted that safety
and security agencies use the carriers' services as a back up to
their primary two-way radio systems. |
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Commission determination |
27. |
The Commission has considered the arguments submitted by the
parties.
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28. |
The Commission agrees with the GTAA that the RJR-MacDonald
criteria requires the carriers to demonstrate that the carriers
themselves will suffer irreparable harm. The Commission finds that
the carriers have not established that they will suffer irreparable
harm in the absence of relief should disconnection in this one
location result from their dispute with the GTAA.
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29. |
The Commission further agrees with the GTAA that public
inconvenience and safety are public interest considerations that
should be taken into account in assessing the balance of convenience
criterion. While acknowledging the importance of these
considerations, the Commission notes that as set out above, the GTAA
has provided assurances that safety and security services at the
airport would not be affected by a disconnection of the carriers'
equipment since the carriers' wireless telecommunications services
have a limited role in providing communications services for
security or emergency purposes. The Commission also notes that the
public would continue to be able to access a number of other
telecommunications services at the airport.
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30. |
An applicant for interim relief is required to establish that it
has met all three of the RJR-MacDonald criteria. In light of the
Commission's determination with respect to irreparable harm, it is
not necessary for the Commission to consider whether the carriers
have successfully met the other criteria.
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31. |
The Commission denies the carriers' application for
interim relief.
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Secretary General
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This document is available in alternative format upon request
and may also be examined at the following Internet site: http://www.crtc.gc.ca
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