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

DGSO-007-23
September 2023

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1. Intent

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), announces decisions resulting from the consultation process undertaken in Canada Gazette Notice DGSO-005-23, Consultation on Conditions of Licence relating to the Provision of Service within the Toronto Transit Commission (TTC) Subway System (the Consultation).

Comments and reply comments were received from:

  • Bell Mobility Inc. (Bell)
  • PSBN Innovation Alliance (PIA)
  • Public Interest Advocacy Centre (PIAC)
  • Québecor Média (Québecor)
  • Rogers Communications Canada Inc. (Rogers)
  • TELUS Communications Inc. (TELUS)
  • Toronto Police Services
  • Toronto Transit Commission
  • TTCriders, Leadnow, OpenMedia, Social Planning Toronto, WomanACT, Toronto Youth Cabinet, A Voice for Transit, YWCA Toronto, CodeRedTO
  • Yucong Hu

2. Affected licensees were informed of this Decision in writing on September 11, 2023 ( the Decision Date). Capitalized terms used herein and not otherwise defined have the meaning as set out in Annex A.

2. Legislative Mandate

3. 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. Policy Objectives

4. 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.

5. Through this Decision, 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.

4. Background and Context

6. As noted in the Consultation, the TTC Subway System is Canada’s largest public transportation system and one of the key facilitators of economic growth in Canada. As an important piece of public infrastructure, it helps to carry over 2 million passengers on a typical weekday. Until recently, most of these passengers have not had the benefit of access to wireless communications while in the TTC Subway System.

7. ISED is of the view that it is imperative that services within the TTC Subway System be improved in a timely fashion, with a particular emphasis on enhancing passengers’ safety and security. Moreover, ISED is of the view that all TTC riders should benefit from these improvements, irrespective of which wireless carrier they subscribe to. At present, only the customers of certain wireless carriers are able to access any voice, text and data services other than 9-1-1, which remains available to all wherever coverage exists. Such coverage is also limited to just a portion of the TTC Subway System.

8. ISED is also aware that the nature of the TTC Subway System will pose challenges and limitations in terms of installation of equipment and other activities necessary for building and maintaining network infrastructure within the system. For this reason, cooperation and collaboration between wireless carriers will be required to expand access to services provided by the existing system and in the longer term to expand coverage in the TTC Subway System and improve services for all TTC riders.

9. As such, with a view to facilitating timely cooperation by all wireless carriers serving the Toronto area, ISED launched the Consultation in July 2023, on proposed spectrum licence conditions that would establish a framework for the parties to come to terms regarding access to the current wireless network in place in the TTC Subway System and a path forward to future coverage in the system. ISED also sought views as to the timing of accessing the system, including access prior to concluding a Network Agreement, and proposed certain deployment requirements for provision of service in the TTC Subway System as well as related reporting requirements.

10. In response to the Consultation, ISED heard from users of the TTC Subway System. One individual, as well as a consortium of stakeholders provided ISED with comments that emphasized the importance of the availability of wireless service to TTC riders and encouraged the Department’s efforts to increase that availability. Toronto Police Services noted, in particular, the essential need to provide access to both users of emergency services, including 9-1-1 and 9-8-8, but also to first responders in the TTC Subway System.

11. Finally, ISED observes that subsequent to the launch of the Consultation, upgraded services were made available within the TTC Subway System to the customers of some carriers but not others.

12. ISED is of the view that providing voice, text and data services to all TTC riders is a collective obligation of the carriers providing wireless services in Toronto and has, accordingly, constructed the conditions of licence below in a manner that reflects that obligation.

5. Introduction of Additional Conditions of Licence related to the TTC Subway System

13. ISED proposed to introduce a set of conditions of licence 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

14. In the Consultation, ISED sought feedback on whether conditions of licence related to the TTC Subway System should be applied to all current and future spectrum licences that contain the Tier 5 area encompassing the TTC Subway System (Tier 5-282 Toronto). ISED further inquired as to whether the proposed conditions of licence should be applied to all current and future low-band and mid-band spectrum currently designated for commercial mobile use or for flexible use bands. 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

Summary of Comments

15. Stakeholders, including Bell, Rogers and Quebecor expressed their support for the underlying objectives and principles proposed in the Consultation.

16. Bell and PIA agreed with the application of the conditions of licence to Tier 5-282, as well as to all low -bands and mid-bands currently designated for commercial mobile and flexible use in the area.

17. Quebecor stated that it had no objection to the proposed scope of the application of the conditions of licence, as long as operators are free to choose which of the listed band(s) to use to satisfy the requirement.

18. The TTC commented to caution that not all spectrum may be compatible with the existing TTC radio systems in the TTC subway System, and as such it is imperative that it retain authority to potentially delay, restrict or otherwise deny planned deployments on technical grounds. Similarly, Rogers pointed out that the existing network remains restricted in terms of the spectrum bands it can support, and suggested it would be inappropriate for ISED to dictate which bands are deployed as the network is upgraded and expanded.

Discussion

19. The objective of this Consultation is to ensure the provision of commercial mobile wireless services for citizens within the TTC Subway System. As such, given the importance of this initiative, and the overarching principles that have consensus from stakeholders, ISED deems it appropriate that the conditions of licence set out in annex A of this Decision (the “TTC Conditions of Licence”) should be applicable to all spectrum licensees who provide commercial mobile wireless services within Tier 5-282 using their licensed low-band or mid band spectrum which is currently designated for commercial mobile use or for flexible use.

20. Due to the circumstances surrounding the current licensing and use of Advanced Wireless Services (AWS-4) and as noted in ISED Spectrum Outlook 2023-2027, ISED will remove this spectrum band from the list of bands subject to the conditions of licence set forth in this Decision.

21. For clarity, while the TTC Conditions of Licence will be applicable to the licence bands listed in D1 below, licensees will not be required to make use of all or any of these specific bands in order to meet their provision of service requirements, as set out in section 5.4, below. Service providers have the flexibility to determine how to best provide mobile services within the TTC Subway System, opening the possibility for alternate means of meeting the requirements. These could include roaming agreements, network sharing, or other solutions.

Decision

D1

The TTC Conditions of Licence will apply as of the Decision Date to all current and future licences issued for spectrum designated for commercial mobile use or flexible use from the following low-bands and mid-bands, which cover the Tier 5-282 Toronto service area, as defined by ISED’s Service Areas for Competitive Licensing:

  • 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)
  • Wireless Communication Services (WCS)
  • Broadband Radio Service (BRS) 2500 MHz
  • Flexible Broadband Service (FBS) 3500 MHz
  • Flexible Broadband Service (FBS) 3800 MHz

ISED may apply the TTC Conditions of Licence to other commercial mobile use or flexible use bands in the future.

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

22. ISED proposed to introduce conditions of licence relating to the provision of commercial mobile wireless services within the TTC Subway System that would immediately apply to all licensees holding licences in the affected tier, including the licensee currently responsible for operating and developing the existing wireless infrastructure in the TTC Subway System (the Operating Licensee) and other licensees subject to the proposed conditions of licence (the Participating Licensees).

23. These include an updated negotiation framework with new timelines, which are meant to ensure a timely finalization of commercial agreements between parties.

5.2.1 Negotiation & Arbitration Timelines

24. In the Consultation, ISED proposed to mandate that negotiations on commercial terms for a Network Agreement between the Operating Licensee and the Participating Licensees be completed within 30 calendar days of the publication this Decision.

25. Should the Operating Licensee and Participating Licensees fail to agree on commercial terms within 30 calendar days, ISED proposed that they be required to proceed to commercial arbitration, which must be completed within 70 calendar days of the end of the 30-day deadline.

Summary of Comments

26. Most stakeholders expressed their general support for the negotiation and arbitration framework and timelines proposed in the Consultation. PIA supported the proposed negotiation timelines.

27. TELUS supported the proposed expedited timeframes. However, it expressed concern over the possibility of unforeseen delays in the arbitration process, further delaying timely access to the TTC Subway System network and granting the Operating Licensee a competitive advantage.

28. Quebecor perceived the proposed timelines as being quite short, but otherwise had no objections to ISED’s proposal, understanding the need for access to be granted in a timely manner.

29. PIAC supported the proposal, but expressed concerns about the total amount of time which would elapse before network agreements might be finalized when accounting for the time needed for ISED to reach a decision.

30. Bell’s agreement was contingent on the timing of access to the wireless network, which is further discussed in section 5.3 below. If ISED adopts an approach which enables immediate access to the network (or as soon as technically feasible), then it does not object to ISED’s proposal. However, if access to the network is contingent on the successful negotiation of a commercial agreement, then it felt much shorter timelines would be appropriate. It proposed that the negotiation period last only 10 days as they see little additional value in extending the negotiation process. It further proposed a 30-day arbitration process inspired by existing CRTC procedures. Roger’s opposed the shorter timeframes proposed by Bell.

31. Rogers supported ISED’s efforts to encourage commercial negotiations between licensees, but otherwise had some reservations about the proposed approach, including the need for a specific condition of licence. In its view, the existing infrastructure within the TTC Subway System, or legacy system, should be considered separately from the advanced infrastructure system which they plan to build out in the coming years. While it agreed that ISED’s proposed framework and timelines should be applied to the existing legacy system, they recommended that commercial terms for the development of and access to the advanced infrastructure network should be negotiated in accordance with standard industry practices, as well as Rogers’ agreement with the TTC. Bell, PIAC and TELUS strongly opposed Roger’s proposal that the legacy infrastructure system be treated separately from the advanced infrastructure system, recommending that both be treated together under the proposed conditions of licence.

Discussion

32. As the spectrum regulator, ISED’s responsibility, on behalf of the Minister, is to oversee the orderly development and efficient operation of radiocommunication in Canada. In this instance, it includes ensuring mobile wireless connectivity within the TTC Subway System, as it is a critical public safety issue. It is not responsible for directly overseeing commercial negotiations or resolving commercial disputes between parties. ISED’s objective is to ensure that the full suite of voice, text and data services are available to all mobile service users throughout the entire TTC Subway System in a timely manner. As such ISED proposed the expedited negotiation and arbitration timelines to facilitate reaching agreements between all the Operating Licensee and Participating Licensees.  

33. Given the objective above, ISED is of the view that intervention is necessary to ensure that equitable access to services is provided using the existing infrastructure currently in operation as of the Decision Date, but also to any system developed in the future. It expects all interested wireless carriers to work together to achieve both these ends. For these reasons, ISED does not deem the distinction proposed by Rogers, the Operating Licensee, between existing network infrastructure (legacy DAS) and the network infrastructure that is in the process of development (Advanced DAS) to be relevant for the purposes of this framework.

34. Given that discussions between services providers had already begun prior to the publication of the Consultation, and taking into account comments received, ISED is of the view that an expedited negotiation framework is reasonable.

35. As such, ISED will impose a 30 calendar day negotiation period and, if needed, a subsequent 70 calendar day arbitration period. ISED considers that this approach strikes a fair balance between the importance and urgency of providing service in the TTC Subway System and the time needed to conclude necessary discussions on commercial terms.

36. ISED notes the concerns from multiple respondents that there may be both incentive and potential for one or more actors to behave in bad faith throughout this process. It is ISED’s expectation that all licensees subject to the negotiation and arbitration framework set out below and reflected in the TTC Conditions of Licence will act in good faith throughout the entire process, including by complying with the information sharing requirements and meeting all prescribed timelines. Failure to follow this framework may be reported to ISED. However, only written complaints with supporting evidence supplied are eligible to be reviewed for investigation.

37. Further, ISED expects that parties will refrain from using the negotiation or arbitration process mandated by this Decision to address broader commercial matters or other disputes between the parties that are not the subject of these TTC Conditions of Licence. ISED notes, for example, that it does not see a technical reason why either network sharing or roaming would pose an impediment to cooperating to provide services in the TTC Subway System.

Decision

D2

ISED mandates that the Operating Licensee and Participating Licensees that  operate in Tier 5-282 Toronto as of the Decision Date must conclude a Network Agreement by October 11, 2023. If the parties cannot agree on the commercial terms of the Network Agreement on October 11, 2023 they are required to jointly proceed with the commercial arbitration process set out in section A.3 of annex A of this Decision. The arbitration process must be completed within 70 days from the date it is commenced.

Should a licensee become subject to the TTC Conditions of Licence set out in this Decision after the Decision Date, that licensee must conclude a Network Agreement within 30 days of the date these TTC Conditions of Licence becomes applicable. Failing which, the licensee and the Operating Licensee must jointly proceed with the commercial arbitration process set out in section A.3 of annex A of this Decision.

5.2.2 Sharing of Technical Information

38. As part of the proposed negotiation process, ISED introduced the following information sharing process:

  • All Participating Licensees would be required to provide the Operating Licensee with a request for preliminary information package within five days of the Decision.
  • The Operating Licensee would then be required to provide the requested preliminary information package within the following five days after the request has been received.
  • The Operating Licensee would also 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.
Summary of Comments

39. All Respondents who commented on this proposal agreed that information sharing should take place, and expressed their general support for the overall process proposed. Quebecor had no objections to the proposed information sharing process, noting its resemblance to existing requirements in CPC-2-0-17.

40. Bell also provided some general guidance as to the types of information that would be required, including specifications related to existing design documents the availability and types of fiber cables, the bands that the existing DAS can accommodate, and the number of head-ends or telco hotels and their available capacity for other carriers as well as a description of their existing power capacity at each head-end. It stated that this list was non-exhaustive and recommended that ISED not specify an exact or exhaustive list of mandatory information to be shared.

41. TELUS stated that it was imperative that the proposed conditions of licence include a strong commitment to the provision of timely information, to ensure that all licensees have access to the necessary technical details to facilitate the efficient deployment of services within the TTC Subway System.

42. PIA supported the necessity of information sharing, and suggested that the following information may be required by participating licensees: environmental survey of radio frequency spectrum transmission and co-located equipment; and physical site details such as floor plans, architectural diagrams and building material lists.

43. Rogers agreed that information sharing should take place but recommended some changes to ISED initial proposal. They recommended that information sharing should follow the same 14 day timeline as set out in CPC-2-0-17, rather than the proposed 5 day timeline. Otherwise, Rogers requested ISED’s proposal be amended to 5 business days (as opposed to calendar days), concerned that the initial proposal might leave them with only 3 business days to complete one or multiple requests. In terms of the information to be provided, Rogers emphasized that shared information should be relevant, disclosable and available to Rogers at the time of the request. Specific information might include the locations of the base station hotels, information regarding the radios that will be onboarded, the rack space, and the power and DAS-to-Radio interface cards that are required to enable services. Finally, Rogers noted that it would not be possible to provide all requested technical information for sites not yet built. As such, it proposed that the information sharing requirement should only apply to the Legacy DAS, suggesting that the Advanced DAS network would be developed in collaboration with other carriers in the future.

44. Bell, PIAC and TELUS opposed Roger’s proposal to extend information sharing deadlines, as well as their proposal to limit information sharing to the Legacy DAS. Bell further opposed Roger’s proposal of only sharing “disclosable” information, noting that some required technical information may be deemed confidential by either Rogers or the TTC. Instead, licensees should agree to confidentiality or non-disclosure obligations so that the information might be shared.

Discussion

45. In order to support licensee cooperation in the timely introduction and expansion of services within the TTC Subway System, timely and efficient sharing of technical information between parties is necessary. The proposed information sharing process drew heavily from the existing process set out in CPC-2-0-17 and was modified to be reflective of the circumstances and expedited timelines set out in the Consultation. While ISED notes the longer timeline suggested by one respondent, a 14-day response time would be inappropriate within a 30-day negotiation process.

46. ISED notes that, given that service within the TTC Subway System is now available to customers of the Operating Licensee, it expects that relevant information should be readily available for sharing with Participating Licensees. Moreover, ISED is of the view that such information will facilitate the timely provision of access to services for all customers in the TTC Subway System. As such, ISED expects that currently available information be shared within two business days of the Decision Date, following the process set out in the TTC Conditions of Licence.

47. Antenna tower and site sharing is a well-established practice between spectrum licensees, and while there may be some variance based on the specific circumstance surrounding the TTC Subway System, it is expected that the information needs of the Participating Licensees should be similar to the information needed to provide service in other subway systems. As such, service providers are best placed to determine their information needs, and ISED will not be imposing specific directions as to the technical or logistical details which must be present in the preliminary information package. Participating Licensees will be responsible for requesting all information relevant to formulating a proposal to enter into a Network Agreement, and the Operating Licensee will be expected to respond to these requests in good faith and to the best of its ability.

48. ISED notes the caveat made by the Operating Licensee that it may not be possible to immediately provide technical information about future sites, and ISED remains cognizant that expansion of commercial mobile wireless services within the TTC Subway System is still under development. However, ISED expects the Operating Licensee to provide such information as soon as it is available. This includes updating the technical documentation shared with Participating Licensees and sharing information on sites under development as new information becomes available.

Decision

D3

Any licensee providing commercial mobile wireless services in Tier 5-282 through one or more of the spectrum bands listed in D1 must identify themselves as a Participating Licensee by submitting a request to obtain a preliminary information package (PIP) to the Operating Licensee on the Decision Date, or within five business days of first offering commercial mobile wireless services in Tier 5-282 through its licensed spectrum.

The Operating Licensee must provide the PIP to the Participating Licensee concerning the network currently in operation within 24 hours of receiving the request. The PIP must 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 must also contain the Operating Licensee’s position on the scope and terms of a Network Agreement.

The Operating Licensee is required to provide any new information relevant to the negotiation of Network Agreement that comes into its possession after the Decision Date, including whether any new parties will be Participating Licensees and technical information on infrastructure under development within 24 hours of coming into possession of such information.

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 and/or other means to provide the full suite of wireless services, such as roaming, within 24 hours of coming into possession of such information.

5.3 Access to Existing Wireless Networks and Provision of Service in the TTC Subway System

49. In the Consultation, ISED proposed three options with respect to the timing of access to the wireless network and the provision of service in the TTC Subway System. Those three options were the following:

  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.

For clarity, these options would not have precluded the sole licensee currently offering mobile service in the TTC Subway System at the time the Consultation was launched from continuing to provide services.

Summary of Comments

50. There was no clear consensus among stakeholders as to a preferred option for the timing of access to the wireless network and provision of services in the TTC Subway System.

51. PIA suggested that ISED adopt option B, as it viewed it as the best option supporting public safety objectives.

52. Bell supported the implementation of a modified combination of options A and B, which relies on technical feasibility as the main trigger determining the timing of access to the network. It proposed option B, along with a modified option A, which would preclude any licensee from providing service on the network until it is technically feasible for all licensees to provide service to customers.

53. In reaction to the launch of services by Rogers, Bell and PIAC proposed that the Operating Licensee be precluded from providing additional services in the TTC Subway System beyond what was available on August 23, 2023, until access is feasible for all participating licensees. Bell further proposed that immediate access be provided through roaming, and that a condition of licence be imposed requiring the Operating Licensee to provide access to a level of service equivalent to what it provides to its own customers.

54. TELUS similarly supported a combination of option A and a modified option B, which would qualify access to the network to include the ability to build their own facilities. Rogers opposed the modified option B proposed by TELUS. TELUS urged ISED to mandate immediate and concurrent access in the TTC Subway System, and proposed roaming as a short-term solution if site sharing was not immediately technically feasible. TELUS also recommended that additional language be drafted to prevent the Operating Licensee from granting itself a preference and from discriminating against the Participating Licensees in the design of the TTC wireless network. In the reply comments, TELUS noted that option A would no longer be feasible, as Rogers had already begun to provide services, but continued to support option B.

55. Both Bell and TELUS expressed concerns that the Operating Licensee may be motivated to delay access to the network to confer on itself a competitive advantage.

56. PIAC supported both options A and B, with a preference for option B, and objected to option C. It expressed support for an approach that grant access to consumers on the TTC wireless network sooner, and without giving one carrier an advantage over others.

57. Both Rogers and Quebecor favoured option C, leaving the timing of access to commercial negotiations. Rogers saw no reason why the process of gaining access to the TTC Subway System mobile network should be substantially different from the standard commercial negotiation process used to gain access to other public spaces and infrastructure, including hospitals. From Quebecor’s perspective, the negotiation and arbitration process and timelines proposed by ISED should negate the need for additional requirements related to access. Quebecor also reinforced the importance of ensuring that these options would not preclude them from continuing to offer their existing services.

58. Rogers strongly opposed option A, explaining that it would risk delaying access, including access to improved 9-1-1 availability, to some customers, prioritizing the interests of some carriers over consumer interests. Rogers stated it would be willing to accept the implementation of option B. Rogers explained that if option B were adopted, it would likely take, at minimum, upwards of four weeks for access through the lease of transport facilities. If options A or B were adopted, Rogers urged ISED to limit these requirements to the existing or “legacy” network that is currently capable of providing services, and to leave licensees to come to an agreement about future expansions of the network through standard commercial negotiations. Bell, PIAC and TELUS strongly opposed limiting the proposed requirements to the “legacy” network as defined by Rogers.

59. Rogers further stated in its reply comments that roaming, whether on an interim or permanent basis, would present technical challenges due to the amount of spectrum currently available to its network, and the possible network interference and impacts on its network from frequent roaming.

Discussion

60. In order to facilitate wireless services in the TTC Subway System, ISED proposed three options with a view to balancing public and commercial interests. When ISED did so the Operating Licensee was not yet offering services in the TTC Subway System. However, ISED has since become aware that the Operating Licensee has begun to provide services including 5G, in the TTC Subway System. As ISED’s objective with the TTC Conditions of Licence is to ensure access to wireless services for Canadians throughout the TTC Subway System, it would be contrary to ISED’s objectives to prevent or remove services once they have been offered. As such, ISED will not move forward with option A as this would preclude the Operating Licensee from providing service until a Network Agreement has been reached with all Participating Licensees.

61. However, given that service in certain parts of the TTC Subway System are available now, ISED will require that the Operating Licensee offer Participating Licensees access to the physical network infrastructure in place in the TTC Subway System as of the Decision Date regardless of whether the parties have entered into a Network Agreement, provided that such agreement will apply retroactively. This access must be equivalent to the access currently available to the Operating Licensee, and is understood to potentially be subject to restrictions by the TTC or practical factors that may limit the Participating Licensees’ access to the TTC Subway System.

62. Furthermore, given that the Operating Licensee is currently offering 5G services to its customers in the TTC Subway System, ISED is of the view that it is technically feasible for service to be provided to all TTC riders, including those that subscribe to the services of other carriers. As such, ISED will establish a deployment requirement to provide service equally to all wireless customers in the TTC Subway System as of October 3, 2023 (subject to the terms of their subscription agreements), which will form part of the deployment conditions of licence on all carriers’ licences as set out in D5 below.

63. As a practical matter, ISED is aware that this will impose an obligation on the Operating Licensee to provide roaming services to the other carriers’ customers, with any commercial terms to be applied retroactively through a Roaming Agreement. Note that these requirements supersede the provisions of CPC-2-0-17, Conditions of Licence for Mandatory Roaming and Antenna Tower and Site Sharing and to Prohibit Exclusive Site Arrangements. ISED acknowledges that this may lead to the Operating Licensee providing sub-optimal service to its own customers, as well as the customers of the Participating Licensees. However, ISED expects that any such impact on service quality will be time-limited in nature. Further, ISED is of the view that providing some services to all customers, which enhances their security within the TTC Subway System, is of higher priority than providing top quality service. ISED is also cognisant that using spectrum from Participating Licensees to facilitate roaming could alleviate service issues. This would require a Participating Licensee and the Operating Licensee to apply for subordination of the relevant spectrum licence(s) and the approval of the Minister of Innovation, Science and Industry. ISED will endeavour to consider such applications on an expedited basis.

64. Finally, ISED observes that there are a number of potential solutions that carriers could potentially collectively implement within this time frame in order meet the obligations set out in the Condition of Licence. Should the parties find an alternative solution to the provision of roaming that will provide equivalent service to the customers of all wireless carriers within the timeframes set out therein, ISED would consider the Condition of Licence to be met.

65. Although the ability to provide services of any type currently rests with the Operating Licensee, ISED notes that it considers all licensees subject to this Condition of Licence to be obligated to take any necessary action to ensure this Condition of Licence is met.

Decision

D4
The Operating Licensee is required to offer physical access to the wireless network infrastructure currently in operation in the TTC Subway System equivalent to that which it currently enjoys, subject to any restrictions imposed on the Operating Licensee, immediately on the Decision Date.

The Operating Licensee will also be required to offer roaming access to Participating Licensees in order to provide customers of both with an equivalent level of wireless services, even if no roaming agreement is reached, unless the Operating Licensee and Participating Licensees find another solution to provide such equivalent services.

5.4 Obligation to Provide Service within the TTC Subway System

66. In the Consultation, ISED proposed that all licensees required to offer to its customers 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.

67. The timelines proposed in a) and b) would commence 100 days after the Decision Date, regardless of when Network Agreements are concluded for those licensees who provide commercial mobile wireless services in Tier 5-282 Toronto at the time of the Decision.

68. For licensees not providing commercial mobile wireless services in Tier 5-282 on the Decision Date, the deployment milestones and timelines outlined above would commence 100 days from the date on which commercial mobile wireless services are first introduced by the licensee into the Tier.

Summary of Comments

69. Reactions to ISED’s proposed service provision requirements were mixed. Quebecor had no objections to the proposed requirements, describing them as realistic. However, Bell, Rogers, and TELUS all expressed some level of opposition to ISED’s proposal, explaining that the pace of deployment within the TTC Subway System was not completely within their control, which would then affect the provision of services.

70. Rogers expressed concern that ISED’s proposal might fail to account for the challenges of deploying new infrastructure in the tunnels of the TTC Subway System. While its own current development plans would see full coverage in the tunnels within two years, this timeline is contingent on construction windows and site access, which is set by the TTC. As such, it strongly recommended that ISED restrict the proposed requirements to subway stations only.

71. Both Bell and TELUS requested that ISED be mindful that the deployment progress of Participating Licensees would be partially contingent on initial infrastructure deployment from the Operating Licensee. TELUS stated it would be unreasonable to hold Participating Licensees responsible and liable for any deemed failure to deploy where deployment is dependent upon the activities of the Operating Licensee. It proposed that responsibility for meeting any deployment requirements should then primarily rest on the Operating Licensee. Rogers opposed this proposal, and instead stated that any deployment Condition of Licence should be applied equitably to all licensees.

72. Bell specified that it did not oppose conditions of licence requiring expeditious deployment in TTC stations and tunnels. However, it proposed that timelines for Participating Licensees to deploy should commence on the date that all necessary technical and legal conditions for deploying service have been met. Alternatively, Bell proposed that specific timelines for deployment conditions might be replaced by the instruction that deployment be completed as expeditiously as possible.

73. Both Bell and TELUS also challenged the necessity of the proposed deployment requirements. In their view, Participating Licensees are highly motivated by commercial interests to establish consumer services in the TTC as soon as possible, making formal requirements unnecessary. TELUS suggested that the proposed reporting requirements, including the coverage report discussed further in section 5.5 below, would be sufficient for ISED to monitor the progression of deployments within the TTC Subway System and address challenges as they arise.

Discussion

74. Given that ISED considers reliable access to mobile wireless services in the TTC a critical public safety matter, it is encouraged by the stakeholders’ desire to see the expeditious deployment of services throughout the TTC Subway System. However, the current state of mobile wireless services within the TTC demonstrates that economic incentive alone has not been sufficient to ensure reliable coverage. Therefore, ISED will introduce a formal requirement for the provision of service.

75. ISED would like to clarify in this instance that it is imposing a requirement for provision of service, which is separate from a requirement of network deployment. The Operating Licensee, as well as all Participating Licensees, will be required to provide full voice, text and data services within the TTC Subway System. Each licensee may choose to meet this requirement through whatever means they deem most appropriate, including physical network deployment or network sharing or roaming agreements (as discussed in section 5.3).

76. Concerns were expressed by multiple stakeholders that new infrastructure deployment within the TTC Subway System is contingent on collaboration with the Operating Licensee and the TTC, and that this may cause unexpected delays. ISED notes that it is not uncommon for physical network deployments to require some measure of cooperation with external parties, whether through tower siting or site sharing procedures.

77. As such, ISED does not find it necessary to provide a longer timeline than was initially proposed for licensees to provide services within the TTC Subway System, nor does it find it necessary to develop separate conditions of licence for the Operating Licensee and Participating Licensees. Under the TTC Conditions of Licence, ISED is establishing a collective obligation for all licensees to provide wireless services, so that all Canadians may have access to these services when using the TTC Subway System. ISED expects all parties to work efficiently and in good faith to ensure that the provision of service requirements are met by all. These requirements will include coverage of the entirety of the existing TTC Subway System, including both current and future stations and tunnels.

78. In terms of future stations and tunnels within the TTC Subway Station, or those not yet in use, ISED is of the view that it is reasonable to expect that the licensees subject to the TTC Conditions of Licence will cooperate to expand the telecommunications network in any expansion to the TTC Subway System at the time of construction, such that they could provide service at the time the new stations and tunnels are first put into use.

Decision

D5

The licensee must offer:

  1. equivalent levels of service to all customers in the TTC Subway System as of October 3, 2023 if the licensee offers commercial mobile services using its licensed spectrum in the Tier 5-282 Toronto service area on the Decision Date.
  2. full voice, text, and data services:
    1. In 100% of the stations in the TTC Subway System within 280 days of the Decision Date, or the date on which the Participating Licensee first offers commercial mobile wireless services using its licensed spectrum in Tier 5-282, whichever is later.
    2. In 80% of the tunnels in the TTC Subway System within two (2) years and 100 days of Decision Date, or the date on which the Participating Licensee first offers commercial mobile wireless services using its licensed spectrum in Tier 5-282, whichever is later.
    3. In 100% of the tunnels in the TTC Subway System within three (3) years and 100 days of the Decision Date or the date on which the Participating Licensee first offers commercial mobile wireless services using its licensed spectrum in Tier 5-282, whichever is later.
    4. In 100% of the new stations and 100% of the new tunnels on the date that any new TTC subway stations and/or tunnels become operational in the future.

ISED expects all licensees to act in good faith to ensure that all are able to meet the above requirements.

5.5 Reporting on TTC wireless connectivity

79. In the Consultation ISED proposed a number of reporting requirements, in addition to standard reporting requirements of licences, in order to monitor the deployment of services to Toronto subway riders. These 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.

80. In addition to providing the above information as part of their annual report, ISED proposed that licensees provide a report describing if and how the deployment requirements have been met one (1) month after each deployment milestone.

Summary of Comments

81. TELUS and PIA agreed with the reporting requirement proposed by ISED. Bell and Rogers supported reporting requirements, but with some changes to ISED’s initial proposal.

82. Bell did not object to reporting the information requested in items a, b, or c of the proposal. It explained that without further knowledge of technical details of the network, it was unsure to what extend and with what level of granularity it would be able to provide for items c and d of the proposed requirements. Finally, Bell recommended against the requirement set out in item e, as based on its experience it anticipates not having the ability to report that data.

83. Rogers suggested that reporting obligations only be required for two years following the publication of the Decision, consistent with its timeline of its plans to modernize and expand TTC coverage. It suggested that further reporting would be redundant, particularly as all licensee deployment would likely be following the same pace. It stated it would be amendable to extending reporting requirements until there was 100% coverage, assuming ISED extended the deployment timelines.

84. Quebecor recommended against additional reporting requirements, stating it would uselessly generate additional administrative burden for licensees. In its reply comments, Rogers supported Quebecor’s position.

Discussion

85. Spectrum licences currently include a requirement to submit an annual report to ISED to provide some information on spectrum use. This information is valuable to ISED as it executes its spectrum management functions, including compliance verification actions. However, ISED recognizes the concerns expressed by some stakeholders about the value, and potential redundancy, of some of the proposed requirements.

86. ISED maintains that reporting requirements are a useful tool for monitoring the expansion of services within the TTC Subway System, as well as monitoring compliance with the TTC Conditions of Licence. As such, ISED will impose additional annual reporting requirements which can be fulfilled as part of each licensee’s existing annual reporting process. These requirements will focus on the information deemed strictly necessary to monitor compliance with the TTC Conditions of Licence, including verifications that a full suite of services are available. ISED will not require reporting regarding other matters such as network outages and network usage specific to the TTC, nor will it require additional reports following service provision obligation milestones.

Decision

D6

Licensees will be required to submit the following information related to TTC wireless connectivity as part of their annual reporting requirements:

  • a statement indicating continued compliance with all TTC Conditions of Licence;
  • an update on the number of TTC stations and percentage of tunnels covered;
  • a description of the type of network operated and the types of services being offered in the TTC Subway System.

6. Comments on a Public Safety Broadband Network

87. ISED notes that it received a number of comments from stakeholders concerning the potential use of 700 MHz (Band 14) spectrum in the context of a Public Safety Broadband Network. ISED notes that while safety and security concerns are important considerations in introducing the conditions of licence, the establishment of a licensing framework for a potential Public Safety Broadband Network will require separate consideration and consultation, in cooperation with Public Safety Canada.

7. Obtaining copies

88. All ISED publications related to spectrum management and telecommunications are available on the Spectrum Management and Telecommunications website.

89. For further information concerning the process outlined in this Decision or related matters, contact:

Innovation, Science and Economic Development Canada
Spectrum Management Operations Branch
Senior Director
6th Floor, East Tower
235 Queen St
Ottawa ON K1A 0H5

Email: spectrumoperations-operationsduspectre@ised-isde.gc.ca

Annex A: Conditions of Licence relating to the Provision of Service within the Toronto Transit Commission (TTC) Subway System

The following conditions of licence (the TTC Conditions of Licence) will apply as of the Effective Date, as defined below, to all current and future licences issued for spectrum from the following low-band and mid-band spectrum bands currently designated for commercial mobile use or for flexible use, which cover the Tier 5-282 Toronto service area, as defined in ISED’s Service Areas for Competitive Licensing:

  • 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)
  • Wireless Communication Services (WCS)
  • Broadband Radio Service (BRS) 2500 MHz
  • Flexible Broadband Service (FBS) 3500 MHz
  • Flexible Broadband Service (FBS) 3800 MHz

While the TTC Conditions of Licence are applicable to all the spectrum bands set out in the Decision (as defined below), licensees are not required to deploy spectrum in each of those bands in which it holds a licence to meet the TTC Conditions of Licence. Licensees are expected to use their licenced spectrum as needed to ensure that they meet the requirement to provide the services (voice, text, data) within the TTC Subway System in accordance with the TTC Conditions of Licence.

A1. 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 the TTC Conditions of Licence is to ensure the provision of voice, text and data services within the TTC Subway System using 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.

A2. Interpretation

  • Decision Date means September 11, 2023.
  • Effective Date means the Decision Date or the date on which a licensee first offers commercial mobile wireless services using its licensed spectrum in the Tier 5-282 area, whichever is later.
  • ISED’s TTC Arbitration Rules means the arbitration provisions set out in Appendix A.
  • Network Agreement means a commercially negotiated or arbitrated agreement for: providing access to the existing network in operation in the TTC Subway System, upgrading the existing network infrastructure in the TTC Subway System, and developing network infrastructure in the TTC Subway System, where infrastructure does not yet exist, 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 provide wireless voice, text and data services in the TTC Subway System.
  • Roaming Agreement means an agreement between the Operating Licensee and the Participating Licensee regarding the commercial terms that will apply to the roaming services provided by the Operating Licensee under the terms of these conditions of licence.
  • TTC Subway System means the stations and tunnels making up the transit network operated by the Toronto Transit Commission.

A3. Requirements to facilitate a Network Agreement for the Use of Upgraded Network Infrastructure

A3.1 Information Sharing Requirements

  1. Immediately upon the Effective Date, the licensee must become a Participating Licensee by making a request to the Operating Licensee for a preliminary information package (PIP).
  2. Within 24 hours of receiving such a request, the Operating Licensee must provide the Participating Licensee with a PIP. The PIP must 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 must also contain the Operating Licensee’s position on the scope and terms of a Network Agreement.
  3. If the Operating Licensee comes into possession of further technical information of relevance to the negotiation of a Network Agreement after sharing a PIP, it must provide that information to the Participating Licensee within 24 hours of coming into possession of such information. This requirement includes technical information on both existing and future infrastructure.
  4. 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 and/or other means to provide the full suite of wireless services, such as roaming, within 24 hours of coming into possession of such information.

A3.2 Access to the Operating Licensee’s Existing Network Used to Provide Services to its Customers in the TTC Subway System

The Operating Licensee is required to provide physical access to the wireless network infrastructure currently in operation in the TTC Subway System equivalent to that which it currently enjoys, subject to any restrictions imposed on the Operating Licensee, immediately on the Effective Date.

A3.3 Mandatory Binding Arbitration

If the Operating Licensee and Participating Licensee do not reach a Network Agreement within 30 calendar days following the Effective Date, they must notify ISED and they must commence the arbitral process in accordance with ISED’s TTC Arbitration Rules.

The Participating Licensee and the Operating Licensee must agree that the arbitral tribunal has 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 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 TTC 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 TTC Arbitration Rules, namely within 70 calendar days of the arbitration request being made. Neither the licensees nor the arbitral tribunal can extend these timeframes.

A4. Deployment Requirements

The licensee must offer:

  1. equivalent levels of service to all customers in the TTC Subway System as of October 3, 2023 if the licensee offers commercial mobile services in the Tier 5-282 Toronto service area on the Decision Date.
  2. full voice, text, and data services:
    a. In 100% of the stations in the TTC Subway System within 280 days of the Effective Date;
    b. In 80% of the tunnels in the TTC Subway System within two (2) years and 100 days of the Effective Date;
    c. In 100% of the tunnels in the TTC Subway System within three (3) years and 100 days of the Effective Date; and,
    d. In 100% of the new stations and 100% of the new tunnels on the date that any new TTC subway stations and/or tunnels become operational in the future.

A4.1 Roaming

The Operating Licensee is obligated to provide roaming access to Participating Licensees in accordance with a Roaming Agreement such that all customers are provided with equivalent services (subject to the terms of their subscription agreements) by October 3, 2023, unless the Operating Licensee and Participating Licensees find another solution to provide such equivalent services. If the parties have not successfully concluded a Roaming Agreement in advance of that date, the immediate provision of roaming services by the Operating Licensee is conditional upon the commercial terms set out in the Roaming Agreement applying retroactively.

A5. Reporting on TTC Wireless Connectivity

In addition to any other applicable reporting requirements, the licensee must also report on the progress of its compliance with the TTC Conditions of Licence foreach year of the licence term as part of the licensee’s annual reporting. Reporting on TTC Subway System wireless connectivity must include the following information:

  • a statement indicating continued compliance with all conditions of licence as prescribed in the Decision;
  • an update on the number of TTC stations and percentage of tunnels covered;
  • a description of the type of network being provided and the types of services being offered.

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

Appendix A: Arbitration Rules and Procedures for Provision of Service within the Toronto Transit Commission (TTC) Subway System

1. Interpretation

  • ADR Chambers means the ADR services division of ADR Chambers Inc.
  • Appointing Committee means the Committee established under these Rules to exercise the powers of an appointing authority.
  • Arbitral Tribunal means a sole arbitrator or a tribunal of arbitrators.
  • Arbitration Agreement means an agreement between or among two or more Parties to submit to arbitration any dispute, and includes agreements between the parties related to the procedures applicable to an arbitration under these Rules.
  • Arbitration Panel means the roster of individual arbitrators who may be appointed to an Arbitral Tribunal established under these Rules.
  • Business Day means a day between Monday and Friday inclusive, excluding weekends and statutory or official holidays in the place of arbitration.
  • Conditions of Licence are conditions contained in the relevant authorizations issued by ISED under the Radiocommunication Act as may be amended from time to time.
  • Coordinator means the person or persons at ADR Chambers responsible for administration of arbitrations.
  • Final Term Sheet refers to the Term Sheet that is presented for consideration by each Party prior to the delivery of final oral or written submissions in accordance with Rule 10.4 established under these Rules.
  • ISED means the Department of Innovation, Science and Economic Development and, where applicable, refers to the Minister of Innovation, Science and Industry and to successor Departments and Ministers that administer the Radiocommunication Act.
  • Law of the Arbitration means the law the Parties have agreed to apply to the arbitration proceedings or, in the absence of such agreement, the law of the Province of Ontario applicable to arbitrations.
  • 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.
  • Notice of Arbitration means the notice referred to in Rule 8.1
  • 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.
  • Party or Parties means a Licensee or Licensees with a dispute to settle between themselves related to a Network Agreement for the TTC.
  • Representative includes legal counsel for or an authorized representative of a Party.
  • Response means the response from the other Party or Parties to the Notice of Arbitration.
  • Rules refers to the version of these Rules in force at the time that the arbitration is commenced.
  • Term Sheet refers to a document outlining the specific and detailed terms and conditions upon which a Party would be willing to enter into a Network Agreement.
  • TTC Subway System means the stations and tunnels making up the transit network operated by the Toronto Transit Commission.

1.1 Where appropriate in these Rules, words importing the singular shall include the plural and words importing the masculine gender shall include the feminine gender and vice versa.

1.2 Where reference is made to the Radiocommunication Act, that reference shall include reference to any applicable provisions of the Radiocommunication Regulations and to any future applicable amendments of the Radiocommunication Act or to successor legislation.

1.3 In calculating time under the Rules:

  1. the first day of an event shall be excluded and the last day shall be included;
  2. the time for doing an act on a particular day shall expire at the close of business for that day, which shall be 5:00 p.m. local time of the place where the arbitration is held; and
  3. where the time calculated for an event falls on a holiday or weekend, the time is extended to the next Business Day.

1.4 The failure to comply with the Rules is an irregularity and does not nullify an arbitration, step, document or award.

2. Scope of the Rules

2.1 The Rules apply to disputes between the Operating Licensee and a Participating Licensee preventing them from agreeing upon the final terms and conditions of a Network Agreement. At the discretion of the Arbitral Tribunal, disputes relating to more than one Network Agreement may be heard together.

2.2 The Rules and any procedures set out in an Arbitration Agreement shall be interpreted liberally with the object that the Parties enter into a Network Agreement in a manner that is as inexpensive and expeditious as reasonably possible, consistent with a process that is fair and suitable to the circumstances of the particular case. Any procedural question or controversy on which the Parties are not agreed may be resolved by the application of the discretion of the Arbitral Tribunal in conducting the arbitration, or of the Appointing Committee in the exercise of its functions.

2.3 If there is a discrepancy between the Rules and the Conditions of Licence, the Conditions of Licence shall take precedence.

2.4 In applying the Rules, the Arbitral Tribunal shall have regard to market information and relevant economic data in Canada and in other countries.

2.5 Any procedures or time period under the Rules, with the exception of the timeframe for conclusion of the arbitration process set out in the Conditions of Licence, may be modified by the written consent of both Parties or by the Arbitral Tribunal or Appointing Committee in their respective sole discretion.

2.6 The Law of the Arbitration shall apply to arbitration procedures conducted under these Rules. In the event that any provision of these Rules or the Arbitration Agreement conflict with any provisions of the Law of the Arbitration from which the Parties cannot derogate, the provisions of the Law of the Arbitration shall prevail.

2.7 Where an Arbitral Tribunal consists of more than one arbitrator, the Parties may agree or the Arbitral Tribunal may decide, after hearing the submissions of the Parties, to delegate the determination of some or all pre–hearing procedural matters to one member of the Arbitral Tribunal.

2.8 These Rules may be amended by ISED from time to time.

3. Independence and Impartiality

3.1 Unless otherwise agreed by the Parties, an arbitrator shall be and remain at all times wholly independent.

3.2 An arbitrator shall be and remain wholly impartial and shall not act as an advocate for any Party to the arbitration. 3.3 The Parties shall, prior to the appointment of any arbitrator, disclose to ADR Chambers and to the proposed arbitrators the names of all Parties and, to the extent known, all material witnesses who will be or are reasonably likely to be involved in the arbitration.

3.4 Every arbitrator shall, before accepting an appointment, sign and deliver to the Parties and the Coordinator a statement declaring that he or she knows of no circumstances likely to give rise to a reasonable apprehension of bias and that he or she will avoid and, if necessary, disclose to the Parties any such circumstances arising after that time and before the arbitration is concluded. No arbitrator shall be disqualified or subject to challenge by reason of the arbitrator or any Representative of a Party being a member, officer or director of ADR Chambers.

3.5 The Appointing Committee shall decide any challenge or dispute with respect to the qualifications, independence or impartiality of an arbitrator. At the request of any Party, the Appointing Committee may appoint a person not associated with ADR Chambers for the purpose of making any determination that the Appointing Committee is authorized to make under this Rule.

3.6 Any arbitrator who is unable to serve or continue to serve due to disqualification, death or disability shall be replaced in the same manner as his or her original appointment, failing which the replacement arbitrator shall be appointed by the Appointing Committee.

4. Notification to the Parties

4.1 Any notification or communication from ADR Chambers or the Arbitral Tribunal to a Party or its Representative may be delivered to its last known address by delivery, registered mail, courier, facsimile transmission, e–mail, or any other means of telecommunication that provides a record of the sending thereof. Such notification or communication shall be deemed to have been delivered on the date of receipt or the date that delivery is confirmed.

5. Communications with the Arbitral Tribunal

5.1 Any notice to ADR Chambers, or to the Appointing Committee prior to the appointment of an Arbitral Tribunal, may be served by providing a copy of the notice to ADR Chambers (contact details available at www.adrchambers.com). After the Appointment of an Arbitral Tribunal, the Parties may also contact the Arbitral Tribunal as noted herein or by providing notices to a location or in manner as directed by the Arbitral Tribunal.

5.2 Other than when all Parties are present, communications with the Appointing Committee or the Arbitral Tribunal shall be through the Coordinator. 5.3 No Party or person acting on behalf of a Party may communicate ex parte with the Arbitral Tribunal, except as directed by the Arbitral Tribunal in the context of a review of information under Rule 6.4.

6. Privacy and Confidentiality of Arbitration

6.1 Subject to Rule 6.2, all arbitrations held under these Rules are private and confidential. The Parties, witnesses and their Representatives may attend at the arbitration. Other persons may only attend with the consent of the Parties or the Arbitral Tribunal.

6.2 No information concerning the existence of the arbitration or anything which occurs or is disclosed within the arbitration shall be disclosed or used outside of the arbitration proceedings or for any other purpose by a Party except:

  • for the purpose of conducting the arbitration itself including, where necessary and appropriate, interviewing and preparing witnesses, obtaining document and other support services and the administration of the arbitration;
  • in connection with an application to a court for interim relief or to set aside, recognize or enforce an award;
  • to ISED to comply with Conditions of Licence or in relation to a proceeding to enforce Conditions of Licence under the Radiocommunication Act;
  • where a Party is required to do so by law or by a court or competent regulatory body;
  • to assist future Arbitral Tribunals as set out in Rule 6.5 below;
  • to an independent expert for the sole purpose of assisting the tribunal in its understanding of the issues under its jurisdiction.

6.3 Where a Party makes disclosure as permitted by Rule 6.2, it shall only do so:

  • by disclosing no more than what is legally required;
  • by obtaining, where possible, an undertaking or order of confidentiality consistent with the Rules; and
  • by furnishing to the Arbitral Tribunal (if the disclosure takes place during the arbitration) and to the other Party details of the disclosure and an explanation of the reason for it.

6.4 The Arbitral Tribunal may at any time determine a procedure to rule upon a claim by any Party that certain information must be kept confidential and may rule upon how that information will be treated during the proceedings.

6.5 Summaries or extracts from final decisions will be recorded and retained by ADR Chambers to assist future Arbitral Tribunals. When information from past arbitrations is deemed relevant to another arbitration by an Arbitral Tribunal, it may be released to the Parties involved in the other arbitration, with commercially sensitive information removed, so that the Parties may review it and make submissions thereon.

7. Appointing Committee

7.1 The Appointing Committee shall have the authority and functions specified in these Rules or incidental thereto. The functions of the Appointing Committee may be delegated by the Appointing Committee to one or more of its members.

7.2 The current members of the Appointing Committee and of the Arbitration Panel shall be listed on the website of ADR Chambers.

7.3 Members of the Appointing Committee are not eligible for appointment as arbitrators by the Appointing Committee but are eligible to be appointed as arbitrators by a Party or Parties or by any other method contemplated by the agreement of the Parties or by these Rules.

7.4 A member of the Appointing Committee shall not be involved in the determination of any issue relating to an arbitration in which he or she has, may have or has had any interest.

7.5 The Appointing Committee may, in its discretion, charge the Parties for services provided by it to the Parties. Charges shall be based on the time spent on the matter by a single member of the Appointing Committee. No charge shall be made for any time spent by additional members of the Appointing Committee, unless the Parties by agreement specifically request their participation.

8. Notice of arbitration

8.1 The parties shall begin the arbitration process within twenty-four (24) hours of failing to reach a negotiated agreement within the timeframe specified in their condition of licence. The Notice of Arbitration must be delivered jointly to ADR Chambers with the appropriate filing fee. Each party is responsible for paying 50% of the fee, or an alternative allotment as may be agreed between the parties. The fee is non–refundable upon delivery to the Coordinator of the Notice of Arbitration. Arbitration proceedings shall be deemed to commence on the day on which ADR Chambers receives the Notice of Arbitration and the appropriate filing fee.

8.2 The Notice of Arbitration must contain a statement of the nature of the dispute, the material facts relating to the proposed Network Agreement, the Participating Licensee’s statement of position, the issues being raised, any agreement or proposal with respect to the number and/or selection of arbitrator[s] for the Arbitral Tribunal, and the names, addresses and other contact information of the Parties and their respective legal counsel.

8.3 Within a further twenty-four (24) hours, the Operating Licensee must deliver a Response to the Participating Licensee and to ADR Chambers. The Response shall set out the responding Operating Licensee’s position with respect to each issue raised in the Notice of Arbitration and any additional issues that they intend to raise.

8.4 For the purpose of facilitating the commencement of the arbitration or the establishment of the Arbitral Tribunal, the Coordinator or a member of the Appointing Committee may hold a telephone conference with the Parties or their Representatives to discuss the number and selection of arbitrators, whether any issues require action by the Appointing Committee, the timing of the proceedings, the desire to proceed with mediation, the fees of the arbitrator or arbitrators to be appointed and any other matter of a preliminary or administrative nature.

9. Appointment of Arbitral Tribunal

9.1 The Parties shall be at liberty to select any qualified arbitrator or tribunal from the Arbitration Panel. In the event that the Parties fail to agree on the appointment of an arbitrator or arbitrators within two (2) days of the receipt of the Notice of Arbitration and the filing fee by ADR Chambers, the Appointing Committee shall appoint an arbitrator or arbitrators for them in accordance with this section.

9.2 The Arbitral Tribunal shall consist of one arbitrator unless both Parties agree to a three–arbitrator tribunal or the Appointing Committee, at the request of one of the Parties and after hearing submissions from the Parties determines, in its discretion, that three arbitrators should be appointed as the Arbitral Tribunal.

9.3 If a sole arbitrator is to be appointed and the Parties have not agreed upon the arbitrator, ADR Chambers shall provide the Parties with a list of three potential arbitrators. If the Parties are unable to agree on an arbitrator within three (3) days of receipt of the list, each side to the arbitration must delete one name from the list (by the end of the three–day period) and the Appointing Committee shall choose the arbitrator from the remaining names. In the discretion of the Appointing Committee, the list of potential arbitrators may include more than three names.

9.4 Where a three–person tribunal is to be appointed, each Party may appoint one member of the Arbitral Tribunal from the Arbitration Panel. The Appointing Committee shall, where the Parties or the Party–appointed arbitrators are unable to agree upon a presiding arbitrator from the Arbitration Panel, appoint the presiding arbitrator in consultation with the Party–appointed arbitrators. The Appointing Committee shall follow the same procedure as set out in Rule 9.3 above.

10. Final Offer Arbitration and Exchange of Term Sheets

10.1 Final offer arbitration, as described herein, shall be the method used by the Arbitral Tribunal to determine awards under these rules unless the Parties consent to another method of arbitration or the Arbitral Tribunal, at the request of one of the Parties and after hearing submissions from the Parties, directs that the arbitration proceed other than by way of final offer arbitration.

10.2 Within five (5) days of the appointment of the Arbitral Tribunal, each Party shall submit a Term Sheet to the other Party and the Arbitral Tribunal as well as a document briefly setting out its position and rationale with respect to the issues in dispute.

10.3 Within five (5) days of the exchange of Term Sheets as provided for in Rule 10.2, each Party shall communicate in writing to the other Party and to the Arbitral Tribunal that they have reviewed the offer and either accept the other Party's offer, or are submitting a counter offer by way of a revised Term Sheet, or are confirming their original offer.

10.4 Prior to the delivery of final written or oral submissions, Parties shall submit a Final Term Sheet for consideration by the Arbitral Tribunal.

10.5 Where final offer arbitration is used, the Arbitral Tribunal may select either Party's Final Term Sheet in its entirety or may select terms and conditions from each of the Final Term Sheets in order to finalize a Network Agreement for the purposes of making an award.

11. Procedural Matters

11.1 The Arbitral Tribunal may convene a procedural hearing at any time it considers appropriate to resolve procedural issues and establish a timetable. A procedural hearing agenda may include points for discussion leading to identification and clarification of the issues in dispute. The questions may include:

  • Which elements of the Network Agreement are in dispute?
  • Are there any issues of confidentiality that the Arbitral Tribunal should address?
  • To what extent and pursuant to what procedure will there be any disclosure and production of facts and documents?
  • Should time be scheduled for hearing of any questions with respect to pre– hearing disclosure?
  • Is an oral hearing necessary? If so, how much time will be required (noting that the arbitration process must be completed within 70 calendar days)? Where and when will the hearing be held?
  • Should witnesses be identified and statements or Affidavits be delivered before the hearing?
  • Should the Parties jointly prepare any issue briefs, documents, legal authorities or other briefs for use in the arbitration?
  • What should be the procedure and likely length of the hearing?
  • Will expert evidence be required? Are any special rules required?
  • Are interpreters necessary?
  • Should there be a timetable for delivery of written argument if required?

11.2 The Arbitral Tribunal shall schedule the first procedural hearing to take place within fifteen (15) days of its appointment. At the first procedural hearing, the Arbitral Tribunal may make any orders to deal with the questions relating to Rule 11.1 and the Arbitral Tribunal shall set a deposit for both Parties to be applied as indicated in Rule 15 below. The deposit shall be payable within fifteen (15) days of the date of the first procedural hearing.

11.3 Procedural hearings will take place by conference telephone call unless otherwise agreed and Parties may agree that an oral hearing of the arbitration may take place by conference telephone call.

11.4 The Arbitral Tribunal shall record any agreement or orders made at any procedural hearing and shall promptly send a copy of such record to each of the Parties.

11.5 The Arbitral Tribunal may dispense with an oral hearing if it determines, after hearing the submissions of the Parties, that oral evidence is not necessary given the issues in dispute. In such case, the Arbitral Tribunal shall set timelines for the presentation of written evidence and submissions. The deadline for any final written evidence and submissions should be within twenty–five (25) days of the first procedural hearing.

11.6 If an oral hearing is required, then following the first procedural hearing, the Arbitral Tribunal shall determine if further procedural hearings are required and set the dates for those procedural hearings, the timelines for any other procedural matters and the date for an oral hearing for the arbitration, which should be within forty–two (42) days of the first procedural hearing.

11.7 In the case where an oral hearing is required, then, unless the Arbitral Tribunal so directs or unless the Parties agree otherwise:

  • Sworn statements of evidence shall be filed in advance of the hearing in lieu of examination–in–chief and witnesses shall be subject only to cross– examination and re–examination in accordance with timelines to be set following the first procedural hearing;
  • The oral hearing shall be completed within three (3) days; and
  • No transcripts of the proceedings shall be required.

11.8 At any time during the arbitration process, the Arbitral Tribunal may require any Party to provide further evidence or submissions, including information on comparable terms and rates, in such a manner as it determines.

11.9 The Arbitral Tribunal may, at any time, seek independent advice on any matter in dispute from any person or review and take notice of facts and material related to relevant decisions made under these Rules provided that the Parties shall have the opportunity to review the content of the advice or decisions and make submissions thereon. At the request of a Party, the Arbitral Tribunal may require that the person providing such advice attend the hearing and answer questions posed by any Party or the Arbitral Tribunal.

12. The Award

12.1 The Arbitral Tribunal will render its award within fifteen (15) days of the close of the oral hearing or presentation of final written submissions and evidence. However, the Arbitral Tribunal, for good reason, may extend that time after consultation with the Parties, provided that the award be rendered within 70 calendar days of the arbitration request being made.

12.2 The award may not be released to the Parties until all outstanding charges of ADR Chambers for fees and disbursements relating to the arbitration and all arbitrator's fees and expenses have been paid.

12.3 The award shall set out the nature of the issues in dispute, the final decision regarding the Final Term Sheets relating to a Network Agreement that was under dispute, any order or further direction with respect to costs, and the facts and the law to the extent the Arbitral Tribunal deems necessary to explain its award.

12.4 An award or interim award made under the provisions of these Rules shall be treated as a final award for the purposes of recognition and enforcement by a judicial authority and shall not be subject to any appeal to the courts or otherwise unless the Parties have otherwise agreed.

12.5 While the Arbitral Tribunal may consider a previous award under Rule 6.5, an award does not create a binding precedent under these Rules.

13. Amendments and Corrections to the Award

13.1 Within ten (10) days of an award being released, on the application of a Party or on its own initiative, the Arbitral Tribunal may amend an award to correct:

  • a clerical or typographical error,
  • an accidental error, slip, omission or similar mistake,
  • an arithmetical error made in a computation, or
  • an issue upon which the Arbitral Tribunal failed to adjudicate.

14. Costs of Arbitration

14.1 The costs of the arbitration including legal fees, independent advisor fees and disbursements shall be fixed by the Arbitral Tribunal and allocated between the Parties in its award on the merits of the dispute or in a separate award after receiving further submissions from the Parties. The fees of the Arbitral Tribunal shall be stated separately for each arbitrator. 14.2 The Arbitral Tribunal shall apply the principle that the costs of the arbitration will typically be apportioned equally and that Parties shall each bear their own legal and other costs, but the Arbitral Tribunal may vary this allocation at its discretion taking into account the subject matter in dispute, the outcome and the conduct of the Parties prior to and during the arbitration.

15. Arbitration Fees and Deposits for Arbitration

15.1 The Parties shall be jointly and severally responsible for the payment of all accounts rendered by ADR Chambers unless the Parties and ADR Chambers have otherwise agreed and have confirmed those arrangements in writing with ADR Chambers.

15.2 The fees and expenses of an arbitrator are subject to deduction of an administrative charge payable to ADR Chambers and agreed upon at the time of the arbitrator's appointment.

15.3 When the Arbitral Tribunal or the Coordinator requests a deposit of costs, that deposit shall be payable to ADR Chambers. After the award has been made, ADR Chambers shall render an accounting to the Parties of the deposits received and return any unexpended balance to the Parties.

15.4 A deposit on account of fees, ADR Chambers' administrative fees, and applicable taxes will be required for each day reserved for the arbitration and the time estimated by the Arbitral Tribunal for preparation for the hearing and the writing of the award. The amount and timing of deposits will be communicated to the Parties by the Coordinator. The Appointing Committee shall determine any disputes regarding the amount or timing of deposits.

15.5 Arbitration hearing days are booked as full days with a minimum charge of eight (8) hours per day plus preparation time.

15.6 The current applicable fees under the Rules are set out at www.adrchambers.com. Information on fees and deposits may also be obtained by contacting the Coordinator.

16. Venue

16.1 The Parties may agree to the nature of a hearing (i.e. written, by live oral hearing or a conference telephone call oral hearing) and may agree to any venue where an oral hearing is required. The venue may include the head office or other office of ADR Chambers or any other suitable location. Failing the agreement of the Parties to choose a venue, the Arbitral Tribunal shall decide upon a venue.

16.2 Arbitration hearings held at the head office of ADR Chambers, or held at another venue arranged by ADR Chambers, will be subject to charges for use of the facilities, catering, etc. in accordance with ADR Chambers policies. ADR Chambers may require an additional deposit from the Parties in the amount of anticipated venue, catering and other out–of–pocket costs.

16.3 If arbitrations are held at other than the Head Office of ADR Chambers in Toronto, the Parties may make their own arrangements and are responsible for any charges in connection therewith. If the Parties request that the Coordinator make such venue arrangements, then a separate administration fee will be charged. The Parties agree that the Coordinator is acting solely as an agent of the Parties who are jointly and severally liable to the third party venue provider for its charges. ADR Chambers will require a deposit in the appropriate amount to cover such venue arrangements. The final account of ADR Chambers will account for such deposit and may include additional charges of the third party venue provider.

17. Translation and Other Services

17.1 If other services or supplies are required at any venue (such as equipment rental or translation services), then the Parties will make their own arrangements or request the Coordinator to make arrangements for their provisions subject to an administration fee and on the same terms of payment as set out in the case of alternative venue charges in paragraph 16.3 above.

18. Adjournments, Cancellation or Settlement

18.1 If an arbitration is adjourned, cancelled or settled more than thirty (30) days prior to the commencement of the arbitration, or any rescheduled date, the deposit shall be returned to the Party or Parties who made it, less the amount of any expenses that may have been incurred and any fees owing to the arbitrator or arbitrators for time incurred.

18.2 If an arbitration is adjourned, cancelled or settled within thirty (30) days prior to the commencement of the arbitration, or any adjournment date, the deposit is subject to forfeiture in the discretion of ADR Chambers or the Arbitral Tribunal. A decision with respect to forfeiture shall not be made until the unused hearing dates have passed. The ability of ADR Chambers and members of the Arbitral Tribunal, whose fees are secured by the deposit, to rebook the dates will be a factor considered with respect to the forfeiture of some or all of the deposit.

18.3 Notification of any cancellation, request for adjournment or settlement shall be made by telephone and shall also be confirmed in writing by fax or e–mail to the attention of the Coordinator. Notification by voice–mail is not acceptable.

19. Immunity

19.1 Neither ADR Chambers nor any member of the Arbitral Tribunal shall be liable to any Party or any counsel, officer, director, employee or witness for any Party for any act or omission in connection with any arbitration. The Parties shall jointly and severally indemnify and hold harmless ADR Chambers in respect of all such claims. The members of the Arbitral Tribunal and ADR Chambers shall have the same protections and immunities as a judge of the superior court of the province, territory or state of the place where the arbitration is held.