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Box 1: Conditions of Licence for Mandatory Antenna Tower and Site Sharing and to Prohibit Exclusive Site Arrangements
These conditions of licence will apply to all licensees in all bands who are radiocommunication carriers under the Radiocommunication Act.
1. The Licensee must facilitate sharing of antenna towers and sites, including rooftops, supporting structures and access to ancillary equipment and services (“Sites”) and not cause or contribute to the exclusion of other radiocommunication carriers from gaining access to Sites. Without limiting the generality of the foregoing,
- where the Licensee is party to an agreement that includes a provision excluding other operators from the use of a Site, then, in order to facilitate the sharing of Sites, the Licensee must consent to waiving that portion of the agreement to facilitate a Request to Share;
- as applicable, the Licensee must consent to or, in a commercially reasonable manner, seek the consent of third parties to the assignment, sublease or other rights of access to Sites pursuant to any agreement or arrangement to which the Licensee is a party; and
- the Licensee must not enter into or renew agreements that exclude other operators from using a Site.
2. The Licensee must share its Sites containing antenna-supporting structures, where technically feasible, when requested to do so by any other radiocommunication carrier authorized under the Radiocommunication Act or by a party who is a provisional licence winner following the Auction for Spectrum Licences for Advanced Wireless Services and other Spectrum in the 2 GHz Range (“A Requesting Operator”).
3. In order to satisfy the condition of Site sharing in accordance with this licence, the Licensee must respond, in a timely manner, to an initial request for information by a Requesting Operator as follows:
- the Licensee shall provide to the Requesting Operator any preliminary technical information for each Site, such as drawings, surveys, technical data, engineering information, future requirements, lease provisions and other information relating to the site relevant to formulating a Proposal to Share that it has in its possession or control; and
- upon reasonable notice by the Requesting Operator, the Licensee shall facilitate access to the Site so that a formal Proposal to Share can be formulated.
4. The Licensee must respond to a Proposal to Share from a Requesting Operator within 30 days as follows:
(a) The Licensee must provide the Requesting Operator with a response in writing and an offer to enter into a Site-Sharing Agreement. Industry Canada expects that Site-Sharing Agreements, including access to ancillary equipment and services, will be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar access;
(b) In the event that the Licensee believes that the Proposal to Share is not technically feasible, the Licensee must provide the Requesting Operator with a response detailing the reasons why it considers that site sharing is not feasible (accompanied by any applicable technical information) and submit that evidence to Industry Canada as directed if the Requesting Operator requests that Industry Canada review the reasons provided by the Licensee in accordance with this condition.
5. Notwithstanding the Licensee’s initial response, if Industry Canada reviews the matter of technical feasibility under 4(b) above and finds that sharing is technically feasible, then the Licensee will respond to the Proposal to Share with an offer to enter into a Site-Sharing Agreement in a timely manner.
6. Licensees must negotiate with a Requesting Operator in good faith, with a view to concluding a Site-Sharing Agreement in a timely manner.
7. If after 90 days from the date that the Licensee receives a Proposal to Share, the Licensee and the Requesting Operator have not entered into a Site-Sharing Agreement or have not agreed to any interim arrangement, the Licensee must submit or agree to submit the matter to arbitration in accordance with Industry Canada’s Arbitration Rules and Procedures, as amended from time to time. The Licensee shall agree that the arbitral tribunal shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the Site-Sharing Agreement and those relating to procedural matters under the arbitration) and that any
arbitral award or results under this condition of licence shall be final and binding with no right of appeal, subject to applicable provincial or territorial legislation. The Licensee must participate fully in such an arbitration and follow all directions of the arbitral tribunal in accordance with Industry Canada’s Arbitration Rules and Procedures and any arbitration procedures established by the arbitral tribunal.
Source: Canada (Industry Canada), Conditions of Licence for Mandatory Roaming and Antenna Tower and Site Sharing and to Prohibit Exclusive Site Arrangements CPC-2-0-17, November 2008, available online at http://www.ic.gc.ca/eic/site/smt-gst.nsf/vwapj/cpc-2-0-17e-issue1-nov08.pdf/$FILE/cpc-2-0-17e-issue1-nov08.pdf. |