Bell Mobility Inc. has asked the Federal Court to review the rules the federal government imposed on wireless service providers earlier this year obliging them to provide broader roaming services on their networks to competitors and to share access to their cellphone towers.
The wireless company, part of the BCE media empire, filed an application for judicial review with the court on Aug. 30.
In the application, Bell argues that the minister of industry has no jurisdiction to force the company to allow roaming or to share their antennas and transmission sites or to specify the terms of the roaming and tower-sharing agreements Bell has with other companies.
It asks the court to declare that the minister has no authority to place such conditions on Bell's wireless licence or at the very least to rule that he can't impose them retroactively.
The company also wants the court to bar the minister from imposing the conditions on new licences that will be auctioned off in January and on any other spectrum that will be auctioned off in the future.
Roaming extended indefinitely
The government first mandated that existing wireless providers like Bell, Rogers and Telus offer roaming access on their networks and share their towers and infrastructure ahead of the first wireless spectrum auction in 2008.
At the time, as a condition of their licences, it asked that the big three telecommunications companies "negotiate in good faith and that they offer roaming and tower and site sharing on commercial terms" to new entrants so that startup competitors could provide coverage to their customers in areas where they did not yet have the necessary infrastructure.
"Tower sharing was introduced to reduce tower proliferation and facilitate competitive entry by expediting network deployment, and roaming was mandated to enable new entrants to offer national coverage to consumers while encouraging facilities-based competition," Industry Canada said in a document explaining the regulation.
The government initially limited the roaming provisions, restricting them to five years when the roaming was within the competing carrier's licensed area and 10 years, or the term of the licence, when it was outside the competing carrier's licensed area.
But in March of this year, the government revised those terms, eliminating the distinction between roaming inside or outside a licensed area and requiring providers to continue providing roaming to competitors indefinitely and on all their networks.
It also said the new provisions would apply to any future licences awarded in the 700 MHz and 2500 MHz bands of radio spectrum.
Extending the in-territory roaming provisions would provide new entrants additional time to build out their own networks while maintaining service where they have not yet deployed within their licensed areas. An extension would also minimize the potential impact on their customers and increase the new entrants’ ability to remain competitive.
Changes 'arbitrary and unilateral,' Bell says
The tower-sharing provisions were extended to "all radiocommunication service providers in all bands," and the government added a clarification that negotiating site-sharing agreements in "good faith" meant providers "must offer access to ancillary equipment and services at reasonable commercial rates."
The government says the revised provisions give new entrants additional time to build out their own networks and remain competitive but Bell sees them as "arbitrary and unilateral" and says they are a violation of the exclusive, commercial agreements Bell already has in place.
"Private citizens who have leased property or granted licenses to property to the applicant for purposes of antenna owners would not have expected that they would be required to give others access to their property," it writes of the expanded tower-sharing provisions.
Although aimed at facilitating the entry of small new providers into the Canadian market, the mandatory roaming and tower-sharing rules could end up being used by large carriers "in a manner not consistent with the purposes of these policies," Bell argues.
It also says in its application that the changes violate the government's own 2007 policy on how Canada's wireless spectrum licences should be managed.
That policy, Bell argues, vowed to rely on market forces to the "maximum extent possible" and to keep regulatory measures "minimally intrusive" and promised that the industry minister would use his power to amend licences only on an "exceptional basis."