Consultation on Conditions of Licence relating to the Provision of Service within the Toronto Transit Commission (TTC) Subway System

1. Through the release of this document, Innovation, Science and Economic Development Canada (ISED), on behalf of the Minister of Innovation, Science and Industry (the Minister), is hereby initiating a consultation on the introduction of Conditions of Licence applicable to telecommunications common carriers operating in Toronto, Ontario relating to the provision of service in subway stations and tunnels operated by the Toronto Transit Commission (TTC) (the “TTC Subway System”).

The Minister, through the Department of Industry Act, the Radiocommunication Act and the Radiocommunication Regulations, with due regard to the objectives of the Telecommunications Act, is responsible for spectrum management in Canada. As such, the Minister is responsible for developing goals and national policies for spectrum resource use and for ensuring effective management of the radio frequency spectrum resource.

3. In developing policies and licensing frameworks, the Minister is guided by the policy objectives of the Telecommunications Act, and the Spectrum Policy Framework for Canada (SPFC), which seeks to maximize the economic and social benefits that Canadians derive from the use of the radio frequency spectrum resource. These policy objectives, along with the enabling guidelines outlined in the SPFC, continue to be relevant for guiding the Minister in delivering its mandate of spectrum management.

4. Through this consultation, the Minister is also furthering Canada’s Telecommunications Reliability Agenda. This agenda complements a range of government efforts to improve the reliability and availability of telecommunications services, including hard to reach areas. The policy objectives also aim to support sustained competition in the provision of wireless services so that all consumers and businesses benefit from greater choice and competitive prices.

5. Canadians across the country depend on telecommunications services to conduct business, apply to jobs, access government services, and stay in touch with their loved ones. Access to reliable services is a critical public safety matter.

6. The TTC Subway System is an important piece of public infrastructure that helps to carry over 2 million passengers on a typical weekday. The TTC is Canada’s largest public transportation system and one of the key facilitators of economic growth in Canada.

7. The availability of mobile wireless services within the TTC Subway System is critical for public safety and recent incidents have only served to highlight the pressing need for immediate action. While 9-1-1 service is currently available in parts of the TTC Subway System, ISED considers it necessary for users to be able to access the full suite of wireless services to enhance their safety and security throughout. To date, only a single carrier has provided its services along portions of the TTC Subway System, leaving a large number of residents unable to access critical mobile wireless services. ISED expects that this situation will persist until the TTC Subway System is upgraded to support multiple wireless providers across all sections of the TTC Subway System.

8. ISED notes that under CPC 2-0-17 Conditions of Licence for Mandatory Roaming and Antenna Tower and Site Sharing and to Prohibit Exclusive Site Arrangements (CPC 2-0-17) licensees are prohibited from excluding others’ access to infrastructure where radiocommunication apparatus may be installed. CPC 2-0-17 also sets out a procedure that licensees can follow towards reaching a commercial agreement for antenna site sharing that facilitates the efficient and timely deployment of services.

9. The situation in this case represents an unusual set of circumstances. There is limited space to deploy equipment and limited times of day where installation can occur. To date, telecommunications carriers that represent a large number of wireless subscribers have been unable to coordinate an approach to provide service in a timely manner. Due to the ongoing impasse, on June 15, Bell filed an application with the Canadian Radio-television and Telecommunications Commission (CRTC) requesting that the CRTC intervene and impose certain orders that may interact with potential decisions that could emanate from Section 5 of this consultation process.

10. In order to lead to the provision of services in the TTC Subway System in the most timely and efficient way possible, ISED is of the view that telecommunications carriers would benefit from licence conditions that facilitate the attaining of commercially negotiated agreements. These agreements shall lead to the development of a network that provides for a coordinated approach to deploying spectrum.

11. At the same time, ISED is proposing an enhanced set of deployment conditions on licensees requiring them to provide service in the stations and tunnels within the TTC Subway System. These enhanced deployment conditions would apply to some or all existing and future commercial mobile licences and would apply in addition to current deployment conditions which are typically met by providing coverage above ground.

12. Furthermore, ISED is proposing reporting requirements in order to allow ISED to monitor progress towards complying with the new Conditions of Licence.

13. The following proposed Conditions of Licence (consolidated in Annex A) are intended to apply in addition to all existing Conditions of Licence applicable to the relevant spectrum licences.

14. These conditions are intended to facilitate the efficient and orderly development of a mobile wireless network that will allow all riders on the TTC Subway System access to wireless services (including voice, text and data) in a timely manner.

5.1 Applicability of the Conditions of Licence

15. ISED intends for these proposed Conditions of Licence to apply to the provision of mobile wireless services within the TTC Subway System. As such, these proposed Conditions of Licence are to apply to licences issued for spectrum currently designated for commercial mobile use or for flexible use that contain Tier 5-282 Toronto (including licences issued for larger Tier sizes), as defined by ISED’s Service Areas for Competitive Licensing.

16. Licensees that do not currently provide mobile wireless services in Tier 5-282 are not subject to these Conditions of Licence. However, should a licensee provide such services within this Tier in the future, that licensee will immediately be subject to the Conditions of Licence set out in Annex A.

17. ISED recognizes that carriers may use a variety of their spectrum holdings to provide service in the TTC Subway System. As such, ISED proposes to apply these Conditions of Licence to all current and future low-band and mid-band spectrum designated for commercial mobile use or for flexible use. These are currently:

• Flexible Broadband Service (FBS) 600 MHz
• Mobile Broadband Service (MBS) 700 MHz
• Cellular (Cell) 800 MHz
• Advanced Wireless Services (AWS-1)
• Advanced Wireless Services (AWS-3)
• Personal Communications Services (PCS)
• Advanced Wireless Services (AWS-4)
• Wireless Communication Services (WCS)
• Broadband Radio Service (BRS) 2500 MHz
• Flexible Broadband Service (FBS) 3500 MHz
• Flexible Broadband Service (FBS) 3800 MHz

18. While these Conditions of Licence would be applicable to all the above-mentioned spectrum bands, licensees would not be required to deploy spectrum to meet these Conditions of Licence in each and every one of those bands. Licensees would be expected to use their licensed spectrum as needed to ensure that they can meet the requirement to provide full voice, text and data services.

5.2 Obligations of Operators of Existing Wireless Infrastructure in the TTC Subway System

19. Based on the intent set out in paragraph 14 above, ISED is of the view that upgrades to the existing infrastructure should be made within a timeline that will allow licensees to meet the deployment requirements within the timeframes proposed in section 5.5 below.

20. It is ISED’s understanding that some discussions have already taken place between the licensee that is currently responsible for operating and developing the existing wireless infrastructure in the TTC Subway System (the Operating Licensee) and other licensees that will also be subject to the proposed Conditions of Licence (the Participating Licensees). As discussed in Section 5.1 above, ISED is proposing to introduce Conditions of Licence that will immediately apply to all licensees holding licences in the affected tier, including the Operating Licensee and Participating Licensees. This will result in all carriers providing mobile wireless services offering a full range of voice, text and data services within the TTC Subway System, subject to commercial terms negotiated or arbitrated as set out in 5.3 below.

5.3 Negotiation & Arbitration Timelines

21. ISED recognizes that access to the TTC Subway System will be the subject of commercial terms between the Operating Licensee and the Participating Licensees and that a certain amount of time is necessary to negotiate those terms. However, ISED is of the view that a lengthy delay in providing services to TTC Subway System passengers owing to such negotiations would be significantly detrimental to these passengers. As such, ISED proposes to mandate that such negotiations be completed within 30 calendar days of the date a decision resulting from this Consultation (the “Decision”) is published on the ISED website. Should the Operating Licensee and Participating Licensees fail to come to agreement on commercial terms by such a deadline, they would be required to proceed to commercial arbitration as set out in paragraph 24 below.

22. To facilitate timely negotiations, all Participating Licensees will be required to provide the Operating Licensee with a request for a preliminary information package which will include any relevant technical information and documentation related to providing service within the TTC Subway System, including but not limited to engineering studies and reports, within five days of the publication of a Decision. The Operating Licensee will be required to provide this preliminary information package within five days after the request has been received, as well as be required to provide any updates to this technical documentation including whether any new parties will be Participating Licensees, as soon as possible, after coming into possession of such information.

23. Participating Licensees will also be required to provide any technical information in their possession that will facilitate the timely negotiation of commercial terms relating to the infrastructure used to provide service to the TTC Subway System as soon as possible.

24. Should the Operating Licensee and any Participating Licensees not reach a commercial agreement within 30 days of the publication of the Decision, these parties will be required to commence an arbitration proceeding using a process to be released by ISED with its Decision. The process will be based generally on CPC-2-0-18, Industry Canada's Arbitration Rules and Procedures, with such modifications as may be necessary to give effect to the Decision. Such arbitration must be completed within 70 calendar days of the end of the 30 day deadline noted in paragraph 21 above. While arbitration rules may allow for extensions to procedural deadlines in other circumstances, in this case, these Conditions of Licence will preclude such extensions.

25. In situations where a licensee begins to provide mobile wireless services in Tier 5-282 after the Decision, the licensee will have 100 days, from the date that they start to offer mobile wireless services in the Tier, to come to a commercial agreement with the Operating Licensee to provide full wireless voice, text and data services in the TTC Subway System as per the negotiation/arbitration process described in this section.

5.4 Timing of Access to Wireless Networks and Provision of Service in the TTC Subway System

26. ISED observes that any ability of the Operating Licensee to provide services in the TTC Subway System to its subscribers before any Participating Licensee has the ability to do so could confer a competitive advantage to the Operating Licensee. For this reason, ISED is considering whether any conditions should be imposed regarding when services could be offered to address this concern, including:

1. Precluding any licensee, including the Operating Licensee, from providing service on the network until such time as all Participating Licensees come to commercial terms; or
2. Requiring that access to Participating Licensees be provided as soon as technically feasible, as determined by ISED, while licensees continue to negotiate commercial terms that would then be applied retroactively; or
3. Leaving the timing of access to commercial negotiations.

27. For clarity, the options described in Paragraph 26 do not preclude the sole licensee currently offering mobile service in the TTC Subway System from continuing to provide services.

5.5 Obligation to Provide Service within the TTC Subway System

28. Upon reaching commercial terms via negotiation or arbitration, all licensees subject to these Conditions of Licence shall take all necessary steps to complete the installation and operation of a wireless network that is technically capable of providing full voice, text and data services within the entirety of the TTC Subway System as soon as possible.

29. Specifically, ISED proposes that licensees be subject to a deployment requirement requiring them to offer voice, text, and data services:

1. In 100% of the stations in the TTC Subway System within 180 days after the 100 day period provided for negotiation and/or arbitration in this Consultation; and
2. In 80% of the tunnels in the TTC Subway System within two (2) years and 100% of the tunnels in the TTC Subway System within three (3) years after the 100 day period provided for negotiation and/or arbitration in this Consultation; and
3. In 100% of the new stations and 100% of the new tunnels within one (1) year of the date that any new TTC Subway stations and/or tunnels become operational in the future.

30. For clarity, the milestones and timelines prescribed in a) and b) above commence 100 days after the Decision, regardless of when Network Agreements are concluded for those licensees who provide mobile wireless services in Tier 5-282 Toronto at the time of the Decision. For licensees that were not providing mobile wireless services at the time of the Decision, once mobile wireless services commence in Tier 5-282, the deployment milestones and timelines outlined above commence 100 days after mobile wireless services is first introduced by the licensee into the Tier instead of 100 days after the Decision.

31. All spectrum licences currently include a requirement to submit an annual report to ISED to provide some basic information on spectrum usage. Given the importance of TTC connectivity on public safety, ISED is proposing to introduce additional reporting requirements as prescribed in the Conditions of Licence for each mobile or flexible use spectrum licence in Tier 5-282 Toronto.

32. These additional reporting requirements include:

1. a statement indicating continued compliance with all Conditions of Licence as prescribed in the Decision;
2. an update on the number of stations and percentage of TTC tunnels covered;
3. a description of the type of services being offered as well as average download and upload speeds at the station level and within the tunnels;
4. technical reports on any network outages within the TTC Subway System that last for more than four (4) hours and summaries by quarter of the number of hours of both planned and unplanned system downtimes;
5. an update on the number of customers that have accessed the wireless network in the past four (4) quarters.

33. In addition to providing the information specified in paragraph 32 above as part of their annual report, ISED is proposing that a report describing if and how the deployment requirements from paragraph 29 above are met be provided 1 month after each deployment milestone defined in paragraph 29, taking into consideration paragraph 30.

34. ISED notes that failure to comply with these Conditions of Licence may result in the invocation of various compliance and enforcement measures, including but not limited to the imposition of administrative monetary penalties.

35. ISED will review the comments received and publish its Decision.

36. Respondents are requested to provide their comments in electronic format (Microsoft Word or Adobe PDF) by email and to specify the individual questions for ease of reference.

37. Printed submissions should be addressed to:
Senior Director, Spectrum Management Operations Branch
Innovation, Science and Economic Development Canada
235 Queen Street, 6th floor, East tower
Ottawa ON K1A 0H5

38. All submissions should cite the Canada Gazette, Part I, the publication date, the title and the notice reference number (DGSO-005-23). Parties should submit their comments no later than August 8, 2023, to ensure consideration.

39. Soon after the close of the comment period, all comments received will be posted on the website. As such, those making submissions are responsible for ensuring that they do not contain confidential or private information.

40. ISED will also provide interested parties with the opportunity to reply to comments from other parties. Reply comments will be accepted until 15 days after the publishing of the comments on the ISED website.

41. All spectrum-related documents referred to in this paper are available on ISED's Spectrum management and telecommunications website.

The following Conditions of Licence are proposed to apply to licences issued for spectrum currently designated for commercial mobile use or for flexible use that contain Tier 5-282 Toronto (including licences issued for larger Tier sizes) as set out in ISED’s Service Areas for Competitive Licensing, where the licensee provides mobile wireless services in that Tier.

At any time after the Decision that a licensee begins to provide mobile services in Tier 5-282, these additional Conditions of Licence immediately apply.

While these Conditions of Licence are applicable to all of the spectrum bands highlighted in the Decision, licensees are not required to deploy spectrum to meet these Conditions of Licence in each and every one of those bands. Licensees are expected to use their licenced spectrum as needed to ensure that they can meet the requirement to provide the services as set out in the Decision.

Intent:

As set out in the Decision on Conditions of Licence relating to the Provision of Service within the TTC Subway System (the “Decision”) the intent of these Conditions of Licence is to ensure the provision of voice, text and data services within the TTC Subway System using existing licensed spectrum in the most timely and efficient way possible. This includes requiring enhanced deployments and facilitating commercially negotiated agreements for the development of an upgraded network infrastructure developed to allow all carriers to use their licensed spectrum to provide services to customers within the TTC Subway System.

Interpretation:

TTC Subway System means the stations and tunnels making up the transit network operated by the Toronto Transit Commission.

Network Agreement means a commercially negotiated or arbitrated agreement for the development of an upgraded network infrastructure in the TTC Subway System to enable access that allows for the delivery of wireless voice, text and data services for the signatories of the agreement.

Operating Licensee means the licensee that is responsible for operating and developing the existing wireless infrastructure in the TTC Subway System.

Participating Licensee means a licensee subject to these Conditions of Licence who is required to deploy spectrum to deliver wireless voice, text and data services in the TTC Subway System.

ISED’s Arbitration Rules means the arbitration provisions released with the Decision.

A1 - Requirements to facilitate a Network Agreement for the use of Upgraded Network Infrastructure

Both the Operating Licensee and all Participating Licensees must negotiate in good faith with a view to concluding a Network Agreement.

Within 5 days of the Decision any licensee must become a Participating Licensee by making a request to obtain a preliminary information package (PIP).

Within 5 days of receiving the request for a PIP, the Operating Licensee must provide the Participating Licensee with a PIP which shall contain all technical information related to the provision of services in the TTC Subway System such as drawings, surveys, technical data, engineering information, and any other information relevant to formulating a proposal to enter into a Network Agreement. The PIP will also contain the Operating Licensee’s position on the scope and terms of a Network Agreement.

At any time, if the Operating Licensee comes into possession of further technical information it must share that information with the Participating Licensee as soon as possible.

Upon reasonable notice by the Participating Licensee, the Operating Licensee must facilitate any physical access to the TTC Subway System so that a proposed Network Agreement may be formulated or further negotiated.

The Participating Licensee is required to provide the Operating Licensee with any technical information in its possession that will facilitate the timely negotiation of commercial terms relating to the infrastructure used to provide service within the TTC Subway System as soon as possible.

If the Operating Licensee does not reach a Network Agreement with one or more Participating Licensees within the 30 calendar days following the publication of the Decision, they must notify ISED and they must commence the arbitral process in accordance with ISED’s Arbitration Rules.

The Participating Licensee and the Operating Licensee shall agree that the arbitral tribunal shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the network agreement and those relating to procedural matters under the arbitration) and that any arbitral award or results under these Conditions of Licence shall be final and binding with no right of appeal, subject to applicable provincial or territorial legislation. The licensees must participate fully in such an arbitration and follow all directions of the arbitral tribunal in accordance with ISED’s Arbitration Rules and any arbitration procedures established by the arbitral tribunal. The parties must complete the arbitration proceedings within the timeframes set out in ISED’s Arbitration Rules, with completion of the process to take no longer than 70 calendar days. Neither the parties nor the arbitral tribunal are at liberty to extend those timeframes.

If a licensee begins to provide mobile wireless services in Tier 5-282 after the Decision, they have 100 days, from the date that they start to offer mobile wireless services in the Tier, to come to a Network Agreement with the Operating Licensee to provide full wireless voice, text and data services in the TTC Subway System as per the negotiation/arbitration process described in this section.

A2 - Enhanced Deployment Requirement

All licensees providing wireless services in Tier 5-282 Toronto are subject to these deployment conditions, in addition to any other applicable deployment conditions required to offer these services:

1. In 100% of the stations in the TTC Subway System within 180 days after the 100 day period provided for negotiation and/or arbitration in this Consultation; and
2. In 80% of the tunnels in the TTC Subway System within two (2) years and 100% of the tunnels in the TTC Subway System within three (3) years after the 100 day period provided for negotiation and/or arbitration in these Conditions of Licence; and
3. In 100% of the new stations and 100% of the new tunnels within one (1) year of the date that any new TTC Subway stations and/or tunnels that may become operational in the future.

For clarity, the milestones and timelines prescribed in a) and b) above all commence 100 days after the Decision, regardless of when Network Agreements are concluded for those licensees who provided mobile wireless services in Tier 5-282 Toronto at the time of the Decision.

For licensees that were not providing mobile services at the time of the Decision, once mobile wireless services commence in Tier 5-282, the deployment milestones and timelines described in these Conditions of Licence commence 100 days after mobile wireless services is first introduced by the licensee into the Tier.

Such service should include full voice, text and data services, subject to the terms of subscription agreements with customers.

A3 - Reporting on TTC Wireless Connectivity

In addition to any other reporting requirements as affixed on the mobile or flexible use licence, the licensee must also submit an annual report on the progress of the licensee’s wireless network connectivity on the TTC subway system for each year of the licence term, which includes the following information:

• A statement indicating continued compliance with all Conditions of Licence;
• An update on the number of stations and percentage of TTC tunnels covered;
• A description of the type of services being offered as well as average download and upload speeds at the station level and within the tunnels;
• Technical reports on any network outages within the TTC Subway System that lasted for more than four (4) hours and summaries by quarter of the number of hours of both planned and unplanned system downtimes; and
• An update on the number of customers that have accessed the wireless network in the past four (4) quarters.

In addition to providing the information specified in the paragraph above as part of the annual report, a report describing if and how the deployment requirements from section A2 above are met must be provided 1 month after each deployment milestone defined in section A2.

Confidential information provided will be treated in accordance with subsection 20(1) of the Access to Information Act.

Reports are to be submitted to the Minister at the following address:

Innovation, Science and Economic Development Canada
Spectrum Management Operations Branch
6th Floor, East Tower
235 Queen St
Ottawa ON K1A 0H5
spectrumoperations-operationsduspectre@ised-isde.gc.ca