Supreme Court keeps 5G small-cell antennas outside CRTC public-property access regime

The Supreme Court of Canada ruled on April 25, 2025, that the statutory access rights available for telecommunications transmission lines did not extend to antennas, including the small cells used in 5G networks. The decision upheld the CRTC’s conclusion that it could not use sections 43 and 44 of the Telecommunications Act to resolve disputes over access to those antennas on public property.

In Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, seven judges rejected an appeal by Telus, Quebecor Media, Videotron and Rogers Communications Canada. Justice Mary Moreau wrote the majority reasons. Justice Suzanne Côté, joined by Justice Sheilah Martin, dissented, concluding that the access regime should include 5G small cells.

The dispute concerned a practical difference between installing cables and installing the antennas connected to them. Under the legislation considered by the Court, carriers could ask the CRTC to settle certain disagreements over access for transmission lines when negotiations with public authorities failed. The majority held that this route did not also cover the antennas, leaving access to those sites to good-faith negotiation.

A network connected by wires, but different access rules

The case arose from the CRTC’s broad review of mobile wireless services, begun in 2019. Its April 2021 regulatory decision concluded that the access provisions covered wireline infrastructure rather than wireless equipment. The Federal Court of Appeal upheld that interpretation in 2023. At the Supreme Court, the statutory appeal raised a question of law reviewed for correctness.

Small cells made the distinction consequential. The reasons described low-powered antennas mounted on existing structures such as lamp posts, telephone poles, bus shelters and buildings, often on municipal property. Although they communicate wirelessly with users’ devices, they connect to a carrier’s wired network. The judgment cited an estimate of 250,000 to 300,000 small-cell antennas for complete Canadian 5G connectivity; that was the estimate considered in the case, not a finding about how many were subsequently installed.

Section 43 generally requires the relevant municipality’s or public authority’s consent before a carrier constructs a transmission line on public property. If the carrier cannot obtain consent on acceptable terms, it can seek CRTC permission, subject to conditions and consideration of other people’s use of the property. Section 44 also gives public authorities a route to seek orders concerning transmission lines. The question was whether an antenna fell within the term that opens access to this process.

The majority concluded that “transmission line” referred to physical wireline infrastructure. References to breaking up land, burying lines and changing their routes supported that reading. Attaching an antenna to a cable did not make the antenna itself a transmission line. Parliament had also used the broader expression “transmission facility” elsewhere in the Act, with a definition expressly encompassing radio and other electromagnetic systems.

Technological change did not determine the statutory meaning

The carriers argued that excluding small cells would frustrate a statute designed to accommodate technological change. They emphasized that the wired and wireless components operate together and that the same access rights should extend across the network.

Moreau accepted that statutes can apply to circumstances their authors did not foresee. But whether a particular provision reaches new technology still depends on its text, context and purpose. In the majority’s analysis, the access regime could accommodate newer wireline technologies, including fibre-optic cables, without extending to every piece of equipment connected to them.

The majority also rejected the argument that the Act’s objectives required the interpretation most favourable to deployment. Parliament had balanced carriers’ interests against those of public authorities. Antennas brought different installation and siting considerations, and the CRTC had found that municipalities and other public authorities had not systematically interfered with 5G deployment. The majority did not treat the distinction between cables and antennas as an absurd result merely because it made deployment less convenient for carriers.

A separate federal power remained important. The Radiocommunication Act gave the Minister of Industry authority to approve antenna sites. As the reasons explained, that approval was distinct from obtaining access to the property. A spectrum licence did not allow a carrier to install antennas wherever it chose, and the radiocommunication legislation did not provide the property-access dispute mechanism the carriers sought.

Dissent saw an integrated network and a gap in access

Côté and Martin would have allowed the appeal. They considered small cells part of an integrated network: the antennas are physically connected to, and extend, existing transmission lines. They also read the statutory language more broadly in light of technological neutrality and Parliament’s intention to create an adaptable telecommunications framework.

For the dissent, the two federal statutes could work together without conflict. The CRTC could determine access when negotiations failed, while the Minister would decide whether to approve the antenna site. Côté warned that excluding small cells from the access regime could effectively give public property owners a veto at the access stage, making network upgrades harder and sometimes impossible.

That warning was the dissent’s assessment, not a constitutional holding by the Court. The majority noted that no particular provincial or municipal action had been challenged in this appeal. If a carrier alleged unconstitutional interference with federal telecommunications jurisdiction, the proper course would be to challenge that action when it arose. The majority also expressly declined to say that small-cell antennas could be regulated only under the Radiocommunication Act.

The appeal was dismissed with costs to the Federation of Canadian Municipalities, Electricity Canada and British Columbia. The decision resolved the scope of this statutory access regime; it did not approve or prohibit a particular antenna installation. Moreau left any desired legislative expansion of that regime to Parliament.

Source: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15.