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A Rogers employee wears virtual reality goggles at a stall promoting virtual retail over 5G, on Apr. 16, 2018, as technology companies prepare for the next-generation wireless network services.Chris Young/CP

Four of Canada’s largest telecoms have won a court challenge against the city of Calgary over access to municipal property in a decision that highlights growing tension between some cities and the industry as it prepares to build 5G wireless networks.

The companies involved in the challenge are BCE Inc., Rogers Communications Inc., Telus Corp. and Shaw Communications Inc.

A judge at the Court of Queen’s Bench of Alberta ruled Friday that Calgary did not have authority to enact part of a bylaw that restricted the companies' access to local infrastructure because the federal government regulates telecommunications.

The bylaw, which came into force in January, sets out terms of access and also gave the city the right to charge utility providers fees to access city roads they use to build or repair equipment. Justice Jolaine Antonio ruled that the bylaw should no longer apply to telecommunications services.

The decision comes as telecom companies are preparing for 5G technology, next-generation wireless networks that will require the construction of tens of thousands of “small cells” – smaller versions of cell towers placed closer together – projects that could pit cities and the industry against each other in fights over access to municipal property.

The coming wave of construction and race for countries and carriers to be first to 5G prompted the U.S. Federal Communications Commission to pass new rules last month limiting both the time that state or local authorities can take to decide on proposals to install small wireless facilities as well as the fees they can charge.

In Canada, the federal Department of Innovation, Science and Economic Development has authority over cell towers and the Canadian Radio-television and Telecommunications Commission can weigh in on disputes over transmission lines, but no rules similar to the FCC’s exist.

Both ISED and the CRTC have acknowledged that responsibility over accessing infrastructure is shared across multiple bodies and levels of government. The issue is one of many to be considered as part of the government’s current review of the Telecommunications Act.

In the meantime, there have been a multitude of one-off court cases and CRTC applications as cities and telecoms spar over building potentially unsightly cell towers or tearing up roads to install fibre-optic cables to provide faster internet service.

The battles could multiply as the industry prepares to build small cells, which are about the size of a laptop and will be placed within a few hundred metres of each other on the sides of buildings, lampposts, bus shelters and other structures around cities. An Accenture analysis predicts there will be about 273,000 small-cell sites by 2026, compared with about 33,000 traditional cell towers across Canada today.

“We have these situations that crop up with municipalities on the wireless side quite frequently. We go to court, we win and then we move on to the next municipality, we go to court, we win. And at what point is enough enough?” Ted Woodhead, Telus’s senior vice-president of regulatory affairs, said in an interview last week before the court ruling on the Calgary bylaw.

“When a macro site [for a traditional cell tower] today takes an average of a year to get approved, that does not a 5G race make. It may make a 5G slow-walking contest, but it’s not a 5G race.”

Telus spokesman Richard Gilhooley said separately the company was pleased with the court ruling and hopes to begin upgrading its existing infrastructure in Calgary to bring fibre-optic cables directly to customers’ homes and businesses. BCE and Rogers also welcomed the decision and all three companies said Monday they want to work constructively with municipalities. Shaw declined to comment.

Glenda Cole, general counsel for the City of Calgary, said the city is aware of the decision and reviewing it.

Bruce Cullen, director of innovation at the City of Calgary, said in a separate statement that the city is “working towards a scalable and sustainable 5G solution to support and protect citizens and municipal assets” and its primary consideration “is to ensure that new infrastructure does not result in safety issues or unnecessary burdens for taxpayers.”

The Federation of Canadian Municipalities said it is still assessing the court ruling.

Alexander Brock, senior vice-president of technology at Rogers, said the company has a team of employees dedicated to working with local governments with the goal of “creating the art of the possible.”

That means convincing municipal decision-makers of the benefits of potential “smart city” applications that will be enabled by 5G technology, he said, “whether it be smart-traffic metering, much more intelligent garbage collection, pest control, parking, you name it, based on real-time data on a localized basis.”

Building small cells for 5G doesn’t necessarily have to be a fight, Shaw vice-president of government relations, Chima Nkemdirim, said in an interview last week. He noted that many cities see the benefits in the new technology and the small size of the equipment means they don’t come with the same concerns about ugly infrastructure that towers do. “Everyone understands we can’t have a really cumbersome process.”

Rob Malcolmson, senior vice-president of regulatory affairs at BCE, called the U.S. commission rules a “move in the right direction in terms of removing potential obstacles so that quick deployment is not impeded by bureaucracy."

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