Archived—Gazette Notice DGRB-010-07

Department of Industry

Radiocommunication Act

Notice No. DGRB-010-07 — Consultation on Proposed Conditions of Licence to Mandate Roaming and Antenna Tower and Site Sharing and to Prohibit Exclusive Site Arrangements

Intent

In the policy document entitled Policy Framework for the Auction for Spectrum Licences for Advanced Wireless Services and other Spectrum in the 2 GHz Range, published on November 28, 2007, the Minister announced his decision to mandate roaming among cellular, PCS (Personal Communications Services), and AWS licensees, to mandate antenna tower and site sharing, and to prohibit exclusive site arrangements for all licensees.

Since these policy measures require amendments to existing conditions of licence or other authorizations, this consultation is being undertaken to obtain input regarding the necessary conditions to implement the policies of mandatory roaming and mandatory antenna tower and site sharing, including the prohibition of exclusive site arrangements. Consequential amendments to Client Procedures Circular 2-0-03, Radiocommunication and Broadcasting Antenna Systems (CPC-2-0-03) may also be effected pursuant to this consultation exercise.

It should be noted that these conditions of licence would not supplant nor obviate any existing or pending rulings, decisions, or tariffs approved by the Canadian Radio-television and Telecommunications Commission (CRTC) or any existing agreements between licensees insofar as they are consistent with this policy.

Background

Under section 5(1)(b) of the Radiocommunication Act, the Minister may, taking into account all matters that the Minister considers relevant for ensuring the orderly establishment or modification of radio stations and the orderly development and efficient operation of radiocommunication in Canada, amend the terms and conditions of any licence, certificate or authorization.

The requirement for licensees to share supporting structures and sites was a recommendation of the National Antenna Tower Policy Review and the Telecommunications Policy Review Panel. Consistent with the recommendations in their reports, the updated version of Industry Canada's CPC-2-0-03, which comes into force on January 1, 2008, requires proponents of new antenna towers to search for existing sites and supporting structures, and requires licensees and site owners/operators to enter into good faith negotiations to share sites where technically feasible. This decision is pursuant to comments received in the National Antenna Tower Policy Review and the Consultation on a Framework to Auction Spectrum in the 2 GHz Range including Advanced Wireless Services.

Aside from questions of technical feasibility, it is recognized that coming to a negotiated business agreement can delay roaming and sharing. Therefore, the proposed conditions which follow state that where it is technically feasible, but where licensees cannot finalize negotiations, parties will submit their business disputes to independent binding arbitration in order to finalize the matter. Most provincial and territorial arbitration legislation provides that, unless otherwise specified by agreement: 

  1. if no other mode of arbitration is suggested, the matter will be referred to a single arbitrator;
  2. the Court can appoint an arbitrator if the parties cannot agree upon one;
  3. arbitrators can ask for reports, submissions, and evidence under oath and can generally set the procedural rules for the arbitration in the absence of agreement upon these points;
  4. in the absence of an agreement to deal with costs, the arbitrator can make an award of costs; and
  5. the decision of an arbitrator is binding and legally enforceable through the courts.

There are also various model arbitration agreements which can be referred to in default of a specific agreement between the parties.

Conditions of Licence for Mandatory Antenna Tower and Site Sharing and Prohibition of Exclusive Site Arrangements

Industry Canada proposes to add the following conditions of licence for mandating antenna tower and site sharing and prohibiting exclusive site arrangements to all spectrum licences, radio licences and broadcasting certificates (Licensees).

  1. Licensees must facilitate sharing of antenna sites, including rooftops, and supporting structures ("Site(s)") and not cause or contribute to the exclusion of other radiocommunication antenna operators ("Operator(s)") from gaining access to Sites. Without limiting the generality of the foregoing, where a Licensee is party to an agreement that includes a provision excluding other Operators from the use of a Site, then, in order to facilitate the sharing of Sites, the Licensee must consent to waiving that portion of the agreement to facilitate a request to share. Further, Licensees must not enter into or renew agreements that exclude other Operators from using a Site.
  2. Licensees must share where technically feasible except where national security concerns exist or the Site is used solely for personal enjoyment.
  3. In order to fulfill the condition of sharing in accordance with this licence, the Licensee must respond to a request to share by any other Operator within 30 days as follows:
    1. In the event that the request to share is technically feasible, the Licensee must provide the requesting Operator with a response and an offer to enter into a sharing agreement. The department expects that Site-sharing arrangements would be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar access.
    2. In the event that the request to share is not technically feasible, the Licensee must provide the requesting Operator with a response detailing the reasons why it is not feasible (accompanied by any applicable technical information) in accordance with CPC-2-0-03.
  4. Site-sharing arrangements will be negotiated expeditiously and in good faith. If after 90 days from the initial request, the Licensee and the Operator requesting a Site-sharing arrangement cannot agree to the terms of the arrangement, the Licensee must agree to submit the matter to an arbitrator as agreed upon by the parties in accordance with the provisions of the applicable provincial arbitration legislation. The Licensee agrees that the arbitrator shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the Site-sharing arrangement and those relating to procedural matters under the arbitration) and that any arbitration under this section shall be legally binding. The Licensee must participate fully in such an arbitration and follow all directions of the arbitrator in accordance with any arbitration agreement or with the applicable legislation. At any time, the Licensee and the Operator requesting antenna tower and site sharing may agree to specific terms with regard to submitting their dispute to an arbitrator and may withdraw their arbitration, on agreed terms, so long as they agree to a Site-sharing arrangement.

Conditions of Licence for Mandatory Roaming

The conditions of licence described below will apply to all licences in the cellular, PCS and AWS bands.

Where the conditions of licence refer to a "new entrant" or "national new entrant", definitions can be found in the document entitled Policy Framework for the Auction for Spectrum Licences for Advanced Wireless Services and other Spectrum in the 2 GHz Range (November 2007).

Where technically feasible, Licensees must offer automatic digital roaming on their cellular, PCS and AWS networks as follows: 

  1. Roaming is to be offered: 
    1. To all cellular, PCS and AWS Licensees outside of their licensed area, for at least the 10-year term of AWS licences;
    2. To all new entrants, in their licensed areas for a period of 5 years commencing with the date of issuance of their licence; and
    3. To national new entrants who have substantially met the 5-year roll-out requirements outlined on their licence, as determined by Industry Canada, for an additional 5 years.
  2. In order to fulfill the condition of offering roaming in accordance with this licence: 
    1. The services offered must include digital voice and data services such as Internet access, email, and other data services;
    2. When requested, Licensees will provide an offer to enter into a roaming arrangement to provide roaming services on reasonable terms within 30 days. Industry Canada expects that roaming would be offered at commercial rates that are reasonably comparable to rates that are currently charged to others for similar services; and
    3. Roaming arrangements will be negotiated expeditiously and in good faith. If after 90 days from the initial request, the Licensee and the party requesting a roaming arrangement cannot agree to the terms of the roaming arrangement, the Licensee must agree to submit the matter to an arbitrator as agreed upon by the parties or in accordance with the provisions of the applicable provincial arbitration legislation. The Licensee agrees that the arbitrator shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the roaming arrangement and those relating to procedural matters under the arbitration) and that any arbitration under this section shall be legally binding. The Licensee must participate fully in such an arbitration and follow all directions of the arbitrator in accordance with any arbitration agreement or with the applicable legislation. At any time, the Licensee and the party requesting roaming may agree to specific terms with regard to submitting their dispute to an arbitrator and may withdraw their arbitration, on agreed terms, so long as they agree to a roaming arrangement.

Comments Invited

Comments are invited on the proposed conditions of licence, specifically:

  1. Are the timelines for responding to requests to share and roam and for submitting agreements that have not been finalized to an arbitrator appropriate? Are there other timelines that should be considered?
  2. Specific provisions regarding arbitration may vary from province to province. Would it be useful to adopt a national code such as the ADR Institute of Canada's National Arbitration Rules in default of any specific arbitration agreement? Are there any special provisions which should be made applicable to the arbitrators concerning sharing and roaming?
  3. Are there any other licence conditions required to facilitate sharing and roaming?

Submitting Comments

Interested parties are invited to submit comments on the proposals outlined in the consultation no later than January 11, 2008, in electronic format (WordPerfect, Microsoft Word, Adobe PDF or ASCII TXT) to the following e-mail address: aws@ic.gc.ca, with a note specifying the software, version number and operating system used.

Written submissions should be addressed to the Director, Spectrum Management Operations, Radiocommunications and Broadcasting Regulatory Branch, Industry Canada, 300 Slater Street, Ottawa, Ontario, K1A 0C8.

All submissions should cite the Canada Gazette, Part I, publication date, the title, and the notice reference number (DGRB-010-07).

Obtaining Copies

Copies of this notice and documents referred to are available electronically on Industry Canada's Spectrum Management and Telecommunications website at: http://www.ic.gc.ca/spectrum.

Official versions of Canada Gazette notices can be viewed on the Canada Gazette website at: www.gazette.gc.ca/rp-pr/p1/index-eng.html. Printed copies of notices can be ordered by calling the sales counter of Canadian Government Publishing at 613-941-5995 or 1-800-635-7943.

November 28, 2007



_________________
Michael D. Connolly
Director General
Radiocommunications and
Broadcasting Regulatory Branch

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