Rogers Communications Inc. is arguing it should not be prevented from turning on cellular service in the Toronto subway network for its own customers if a dispute with its rival carriers cannot be resolved first. A Toronto Transit Commission sign is shown at a downtown Toronto subway stop Tuesday, Jan. 31, 2023. THE CANADIAN PRESS/Graeme Roy

TORONTO - Rogers Communications Inc. says it should be allowed to add cellular service for its own customers in the Toronto subway network without waiting for an ongoing dispute with its rival carriers to be resolved.

In a filing to Innovation, Science and Economic Development (ISED) Canada earlier this month, the telecommunications company said it "strongly opposes" a measure the department is considering that would prevent it from giving its customers first access to the upgraded wireless network. It was among three options floated in July by Industry Minister François-Philippe Champagne.

The minister, whose portfolio includes responsibility for wireless licences, launched a consultation process last month in a bid to speed up negotiations among major carriers after Rogers bought the existing wireless network and signalled plans to further build it out earlier this year.

But Rogers remains at loggerheads with Bell Canada and Telus Corp. over the ideal technical approach to providing access for all Toronto Transit Commission (TTC) subway riders, and what the financial terms of that access should be.

"Depriving customers of service in this manner would prioritize the interests of certain carriers over consumers," Rogers said in its submission to the federal department. "It would also reward tactical self-serving manoeuvring by Bell and Telus who did not show any interest in providing wireless services in the TTC until Rogers stepped up to make the investments needed to modernize and expand the TTC wireless network."

Rogers urged Ottawa to leave the timing of access to commercial negotiations, which it said follows standard practice. But if the feds don't do so Rogers said it prefers a third option — requiring that access to other carriers be provided "as soon as technically feasible" while talks continue, with any terms agreed upon then applied retroactively.

The company noted there are "legitimate technical constraints associated with onboarding other carriers" that would leave its rivals at least four weeks behind on installing and testing their equipment on the TTC.

Such a move could fuel Telus and Bell's worries that Rogers customers would be first in line to phone and text on TTC platforms and tunnels.

Rogers spokesperson Cam Gordon confirmed the company is conducting tests of its network upgrades on an ongoing basis, mostly during off-hours when the subway is closed to riders overnight.

The carriers had until Aug. 8 to submit responses to Ottawa. They now face an Aug. 28 deadline to respond to each other's submissions.

Rogers bought the Canadian operations of BAI Communications, which had owned the rights to provide wireless service on the subway, in April. It then announced plans to upgrade the existing infrastructure, which already includes cellular capability at most downtown subway stations, and build 5G capability for the entire network of stations and tunnels — a process it expects to take two years.

Rogershas vowed to make the upgraded system accessible for other mobile carriers to provide wireless coverage to their customers. That includes honouring BAI's previous contract with Freedom Mobile, now owned by Quebecor Inc., the lone carrier whose customers already have access to the network.

Bell and Telus both advocate for a joint build of the subway's 5G network using a consortium model similar to that of Montreal's Metro system, rather than a pay-for-access approach. Rogers has not publicly committed to either model.

In their own submissions to Ottawa, Bell and Telus urged the government to prevent Rogers from providing first access to its customers on the TTC. Those companies said Rogersshould be made towait until it is technically feasible for all riders to use the mobile network.

"We have an urgent concern that (Rogers) will attempt to circumvent the objectives of this consultation and disadvantage consumers by launching service for its customers before ISED can issue a decision to this consultation," Bell's filing stated.

It added the effectiveness of Ottawa's consultation process "would be nullified if Rogers launches wireless services in the TTC Subway System before a final determination has been rendered."

Telus' filing said there "is no valid policy rationale or technological justification for Rogers to provide services in the TTC subway before any (carrier) has the ability to do so."

"Importantly, allowing Rogers to gain a head start in deploying wireless services would create an imbalanced landscape and diminish the incentive for it to negotiate and establish agreements with other licensees," stated Telus' submission.

"If Rogers is already operating with a competitive edge, it may be less motivated to engage in meaningful negotiations and reach mutually beneficial agreements with other licensees. This not only hampers healthy competition but also hinders the ability of TTC riders to access a diverse range of wireless services, thereby limiting consumer choice."

A TTC report last month said the transit agency expected Rogers to be able to provide 5G capability along tunnels and stations from Union Station north to St. George and Bloor-Yonge stations by the start of the upcoming school year.

But it had been unclear if Rogers would seek to offer 5G service on the subway to its own customers first before the dispute is resolved.

Rogers' response to Ottawa said that preventing it from doing so "could delay access to wireless services in the TTC by consumers (including customers of Rogers and any other licensee motivated to negotiate commercial terms in good faith), as well as access to improved 911 availability for all riders."

"Rogers has serious concerns about the motivations of Bell and Telus, who appear to be less concerned about ensuring timely access to wireless services in the TTC for customers than they are about preventing Rogers from taking leadership in this initiative," the company said.

The federal department said it plans to review feedback and post a decision after the period to submit reply comments closes, which would then trigger a 30-day window for the carriers to complete negotiations.

If the companies fail to reach an agreement in that time frame, they would be required to enter an arbitration proceeding, which must be completed within 70 days.

This report by The Canadian Press was first published Aug. 21, 2023.

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