How can the CRTC regulate landlords, who aren’t carriers?
The issue has come up in the past when dealing with access agreements for wireline telecommunications services and broadcast television distribution. In 1999, the CRTC decided on a clear demarcation point for inside wiring so that tenants could subscribe to competitive telecom services [Decision 99-10]. Decision 2003-45 provided additional guidelines for negotiation of building access agreements.
But the CRTC has limited powers in regulating building owners or property managers. Instead, it uses indirect regulation – such as finding that an agreement between a regulated carrier and the unregulated party (such as a landlord) contravenes the Telecom Act or Broadcast Act – as it did in 2007 with the dispute over access by Shaw to buildings developed by Concord Pacific.
So this brings us to the case of San Francisco’s Bay Area Rapid Transit (the BART). Of course, the CRTC doesn’t regulate San Francisco, but it would be helpful to discuss whether such a case would contravene Canadian telecom regulations. Here is some background. it is increasingly common for landlords to install a distributed antenna system (DAS) for improving wireless connectivity inside highrise buildings or shopping centres or subway systems, for cellular, WiFi, internal mobile radio and first responders. Some DAS (such as Optiway) are multi-frequency and have sophisticated management capabilities. It is not uncommon for the DAS to be carrier independent and be owned by the landlord or managed on the landlord’s behalf.
On July 11, (as explained here by BART) the San Francisco subway system disrupted cellular access inside their subway tunnels because it believed that mobile services within their system would otherwise be used to incite illegal activity. For various viewpoints on the legality or correctness of this, see Public Knowledge and Public CEO (Public CEO asks the question of whether access to cellular service is an absolute right).
So, to return to the Canadian context, would Toronto Transit violate any laws if it did the same thing in the same circumstances? Or what about a major shopping centre? Or an office building temporarily cutting its distributed antennae in the food court?
To add some colour to the discussion, what if the landlord got into a dispute with just one carrier and disconnected their access to the interconnection point? Or refused to interconnect with other carriers?
Are Distributed Antenna Systems a form of “telecommunications facility” and are there conditions under which a building owner would become a telecommunications common carrier under the Telecom Act?
How many facilities in Canada have their own antennas ? How does that work from a spectrum point of view ? Do they need Industry Canada spectrum to broadcast mobile service within their building ? And wouldn’t Rogers object to some 3rd party using frequencies allocated to Rogers and pootentially messing with Rogers’s network management ?(same for all other incumbents)
Isn’t it more likely that buildings will rent space for each mobile carrier to put their antennas and manage their own network ?
Hi Mark,
Nice points you raise here. I can’t claim to remember all the details and know the ins and outs on this one, but the points you raise about the ‘regulability’ of DAS/telecom/Broadcast facilities are really important ones.
I recall reading the reg cases back in 1990s that you’re referring to, and thinking it a good idea to let those at the ends of the network (bldgs, ‘gated communities’, everyday users etc.) connect whatever they want to the netwoork, including their own ‘intranets’ so to speak. So long as they didn’t constrain users access to competitor/outside service and content providers, why not? But there was always that niggling question with respect to whether or not this would happen, or if landlords would become new ‘toll booths’ with exclusive deals with one or another telco, cable/sat. provider, ISP, or even become one of those on its own, etc.
Some developers did this around Toronto area, Futureway I think was one of them (Btw, Keith Hampton, Barry Wellman’s student, and now at Annenberg, did some studies on ‘social uses’ of these high-facilities in what he called “netville”, a placed modelled on what I think was a futureway/landlord development outside Toronto, that you may find of interest). Concord did the same in BC as major condo developer, as you mention, and of course many others were around. Many didn’t survive long and Futureway(?) was acquired by Rogers not too long ago (again, wroking from memory), etc. etc.
As far as I can recall, providers of these facilities had to do so in ways that were consistent with notions of opening up competition, choice and access, to wires, content, customers, competitors, etc. That didn’t always jive with developers’ plans though, did it?
The 2007 decision that you reference (which I just glanced at, but have seen it and others like it before) seems to suggest that these ‘developers at the ends of the network’ have obligations like the ones that I just laid out above. In other words, Concord couldn’t strike special deals with Telus that would preclude Shaw from gaining access to subscribers inside Concord condos, The case seems to suggest that Concord has fairly broad obligations with respect to non-discrimination when it comes to broadcasting and telecom services under both the Broadcasting and Telecoms acts.
The real problem in all this, it seems to me, is that the CRTC’s wants to deal with this on a case by case basis vs using the same reasoning it used in the Shaw v. Concord case to set a general rule based on ample tools at its disposal in Telecom (sec 10) and Broadcasting (sec. 27) acts re. non-discrimination and undue preference. This fits more generally with CRTC reluctance to set generic rule separating network supply versus messages/content/services.
Consequently, things are ambiguous, but not because of either rules or technology is unclear but because the CRTC has failed to act. So, I guess you’re right by that standard, and maybe then if we see a BART-like entity here in Canada – say Toronto Transit — it could just flip the switch.
Ultimately, we can only know the answer to your question by saying that we’ll have to wait and see, it seems. That just sounds like a bad idea to me. We could clean up so much ambiguity around such fundamental issues if the CRTC would just do its job on the basis of steady principles, values and procedures vs adhocery.
And I think that this the thrust of Harold Feld’s point from Public Knowledge: i.e. that BART is NOT first and foremost a question about free speech rights (important as those are), but carrier obligations under Title 1 of US Telecoms Act. U.S. case law, he claims, shows that any communication provider/carrier must get permission from state pub util comm (PUCs) and FCC. As such, it’s not just that any old BARTistan (DAS, in your terms) can flip the switch.
But it is also a free speech/communication right issue too, which Feld also acknowledges, after putting it down a notch in importance behind current laws on this stuff.
The guy over in California at Public CEO that you refer to might find that to be turning a trifling convenience (cellphone service) into a necessity of life, but UNESCO did release a smart doc prepared by some Oxford U Internet Institute *(Will Dutton, et. al.) that said exactly what the basic point is in all of this, technical procedures aside: communication by Internet and any other medium is a fundamental human right under the Universal Declaration of Human Rights (1948). http://unesdoc.unesco.org/images/0019/001915/191594e.pdf
Mr Public CEO might want to ignore that, but I disagree. Don’t we have to, at some basic level, make these connections so we’re not just talking telecom and tech but the fact that they are central to human communication?
Thanks again, Mark, for raising a thoughtful discussion of DAS. Would love to hear more of views on the issues. In meantime, I need to learn more about them.
cheers
DW
While it may be clear to some that BART is a regulated communications service provider, it is less clear to me that it is, nor the hundreds of thousands of other operators of DAS in shopping centres, airports, office towers, apartments.
I have a question about this situation that I can’t seem to resolve, perhaps it’s my unfamiliarity with BART or San Francisco. Were the antennas turned off completely, or were they left active so mobile devices would connect to them, but simply disconnected from their own network so as to prevent sending or receiving voice or data traffic?
If it’s the former, and people couldn’t get mobile service from another tower (too far away, underground, etc), then I could see them doing this, as it could be considered within their pervue to disable access for a while.
If it’s the latter, then how are they not guilty of operating, effectively, a jamming device? If their tower had not been wilfully disabled, these mobile devices may have been able to connect to more distant towers not under BART’s control. This method of actively jamming mobile connectivity surely wouldn’t fall under municipal jurisdiction. What if they had never provided mobile service, and then brought in devices without regulatory approval to actively interrupt service for security purposes?
Pingback: Regulating landlords • Telecom Trends | Telecom Operator News
Pingback: Regulating landlords • Telecom Trends | Telecom Regulation
Pingback: Regulating landlords • Telecom Trends | Telecom Operator News
Pingback: Regulating landlords • Telecom Trends | Telecom Regulation