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Supreme Court rules in favour of Rogers in cell tower dispute

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Canada's top court ruled in favour of Rogers Communications Inc. Thursday on a case that saw the wireless provider clash with a Quebec municipality over the site of a new cell tower.

The decision affirmed a long-standing principle that the federal government has authority over telecommunications and legal experts say it could also have implications for other cases where provincial or municipal authorities wade into regulating communications.

In a unanimous ruling with one judge writing separate concurring reasons, the Supreme Court of Canada ruled that when the city of Châteauguay, a suburb of Montreal, took steps to prevent Rogers from installing radio equipment at a particular address, it interfered with a matter of federal jurisdiction.

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Rogers followed a consultation process and obtained permission from Industry Canada (the federal department now known as Innovation, Science and Economic Development or ISED) in 2010 to build a cell site on property it was leasing access to in Châteauguay, with the goal of improving its wireless service in the area.

The city had previously objected, raised concerns that the site would be "visually disagreeable" and expressing concern for the health and safety of nearby residents. After the federal government gave Rogers permission to build, the city established a "land reserve" on the property that prevented the company from building.

The majority Supreme Court decision said the purpose of the city's actions was "not the protection of the health and well-being of residents or the development of the territory but, rather, the choice of the location of radio-communication infrastructure."

Since that falls under federal jurisdiction, the city's actions ran afoul of its constitutional authority, the court concluded.

Patrice Gladu, a lawyer who represented Châteauguay, said he recognized the long-established federal authority over telecommunications but was disappointed with the ruling as the city was hoping to see an approach that would allow municipalities to have more involvement in cell tower siting.

The Federation of Canadian Municipalities, which intervened in the case, also expressed its displeasure with the outcome but said it would continue to work with federal authorities and the wireless industry to consult on cell tower siting. A policy Industry Canada formalized in 2014 requires companies to consult with municipalities and to share towers where possible.

"The court's decision today does not diminish existing consultation and approval processes," the group said in a statement Thursday. "In this regard, the FCM has been leading efforts for the past 20 years to ensure effective management of the municipal right of way."

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For its part, Rogers said the ruling would help it build and improve its networks but also emphasized its respect for "the communities we invest and operate in."

"It's so important to have a fair and transparent process to work with communities across the country as we strengthen and expand our world class networks," David Watt, senior vice-president of regulatory affairs, said in a statement.

The case could also set a precedent for a potential legal challenge against a new Quebec law that will compel Internet service providers (ISPs) to block gambling websites not approved by the province.

Critics have raised concerns about censorship and interfering with the principle of "Net neutrality" and have also argued that the provincial government does not have the jurisdiction to regulate telecommunications.

The Quebec National Assembly passed the legislation – which was contained in a budget implementation bill – on May 18 but during the committee stage the bill was amended so that the section that applies to ISPs and gambling websites does not come into force for six months.

Michael Geist, a law professor at the University of Ottawa, said Thursday it is notable that in the Supreme Court ruling Châteauguay "cited health and safety reasons for its intervention into the federal power."

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The Quebec government initially cited revenue generation for its own Loto-Québec gambling site as a justification for the website blocking legislation. It has also pointed to health and safety concerns around online gambling.

"Today's decision suggests that either framing won't be enough to stop the law from being struck down once it is challenged in the courts," Prof. Geist said.

Kurt Eby, director of regulatory affairs for the Canadian Wireless Telecommunications Association, which has provided a voice on the Quebec legislation for both wireless carriers and ISPs, says the industry group is still considering whether to mount a legal challenge.

"We will have to speak to our members about the [Supreme Court] decision and whether it has any impact on how the industry might approach the gambling website legislation," he said Thursday.

David Elder, an Ottawa lawyer with an expertise in telecommunications law, said Thursday's ruling is clear that the analysis is simple regarding federal jurisdiction "when you're talking about what is essential to a communications network."

"I think it's a bit of an open question whether the unrestricted ability of ISPs to connect their users to whatever destinations on the Internet they choose to follow, whether that broad accessibility is essential to a communications network – I think there's a good argument that it is," he said of how the ruling could apply in the case of the Quebec legislation.

Mr. Elder said the Quebec legislation could also be vulnerable to a challenge under the Charter of Rights and Freedoms on the basis of impeding freedom of expression.

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