5G regulation and law in Canada

5G service was first made available to Canadians in 2020. Today, Canada’s largest carriers have all deployed 5G networks and collectively service a majority of the Canadian population.

However, according to data published by Canada’s telecommunications regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), there are important differences in coverage across Canada’s ten provinces and three territories. For instance, Canadians living in rural areas and less populated provinces are less likely to have access to 5G service as compared to Canadians living in urban areas. Furthermore, 5G coverage has not yet been rolled out across Canada’s territories, which are the country’s northernmost and least densely populated regions. These differences in 5G service availability are largely attributable to the challenges of deploying telecommunications networks across Canada’s vast geography.  

Canadian carriers generally include 5G service as part of their standard mobile plans and do not charge separately for such service. The cost of 5G services are generally provided to consumers at similar prices as 4G services. This may evolve over time as we have seen for 3G services, which are now priced significantly lower than LTE/5G equivalents.

Canada does not allocate spectrum to particular sectors, so the launch of 5G service includes industrial applications.

Certain carriers currently offer 5G service tailored to a range of industries, including agriculture, mining, logistics, transportation and IoT applications.

Canada’s spectrum regulator, Innovation, Science and Economic Development Canada (ISED), issues spectrum licences in respect of the use of specified frequency bands within a defined geographical area. In the case of spectrum used for 5G service, such licences have typically been awarded through an auction.

Spectrum auctions generally take place after a public consultation, period for comment and replies, issuance of final policy decisions and an opportunity for the public to make submissions for clarification. The framework governing such auctions provides that ISED will consider pro-competitive measures during the auction, including by restricting the participation of anti-competitive players in the wireless market and imposing spectrum aggregation limits. 

Spectrum licences are issued in respect of service areas and are not typically issued in respect of specific premises such as a stadium. 5G coverage is available on such premises to the extent that the appropriate licence holder(s) for the service area can provide such coverage.

The terms and conditions of each spectrum auction vary on a case-by-case basis, including in respect of the criteria used to evaluate tenders, the conditions imposed on eventual licensees, and the price payable by bidders. These are addressed in policy and licensing documents published by ISED in anticipation of each auction.

In its most recent major spectrum auction for licences in the 3500 MHz band (which was concluded in 2021) ISED issued 1,495 licences spanning different service areas to 15 Canadian participants. In terms of measures aimed at enhancing competition in the 5G market, the 3500 MHz auction included a set-aside for small and regional providers where enough spectrum was available. The auction process also included certain eligibility requirements and rules respecting, among other things, the opening bid price of a licence. The winning bids of the 3500 MHz auction totalled CAD $8.91 billion.

Licences awarded as a result of the 3500 MHz auction are valid for 20 years and include requirements related to the timely deployment of 5G, mandatory antenna tower and site sharing, and mandatory roaming, among other conditions.

ISED consults on and issues a report summarizing its outlook on the management of Canada’s spectrum every few years. These reports address ISED’s plans to reallocate spectrum to support new services, including 5G. As of this writing, ISED is consulting to inform the report addressing its outlook for 2022 to 2026. 

As anticipated in its previous outlook report, ISED has recently announced the rules for the auction of the 3800 MHz band to support further 5G deployment. Bidding is expected to begin on October 24, 2023. ISED has also launched a consultation on the licensing framework for spectrum in the millimetre wave bands.

ISED has no 5G-specific rules. Rules applicable to 5G spectrum and services are set out in Canada’s general communications law framework and in spectrum licences issued for the relevant frequency bands.

In November 2021, in response to concerns related to interference with aircraft navigation systems, ISED implemented certain restrictions to 5G services operating in the 3500 MHz band. These restrictions introduced, among other things, “exclusion zones” around 26 Canadian airport runways (5G operations inside airports were generally not restricted) and requiring that such antennas tilt downwards to mitigate the risk of interference with aircraft equipment.

We are not aware of any material instances of non-compliance with spectrum licences or other relevant requirements as of this writing.

Rules relating to spectrum and infrastructure sharing are generally imposed as a condition of licence. 

Carriers that were awarded a licence through the 3500 MHz auction are required to comply with ISED’s framework applicable to mandatory roaming and antenna and site sharing as a condition of licence. At a high level, licensees must: (i) provide automatic digital roaming to any other licensee in the 3500 MHz band; and (ii) facilitate the sharing of antenna towers and sites with other licensees. Licensees are required to negotiate in good faith and must submit to arbitration governed by ISED’s standard arbitration rules if no agreement is reached to provide for the roaming/sharing.

In 2021, the CRTC issued a policy requiring three national carriers and one regionally dominant carrier to provide wholesale facilities-based mobile virtual network operator (MVNO) access service to regional carriers that meet certain eligibility requirements for a period of seven years. Access terms and rates must be filed with the CRTC, which can conduct a final offer arbitration process if negotiations fail. This framework applies to all GSM-based networks, including 5G networks. 

Carriers in Canada do enter into roaming and spectrum sharing agreements, including where such sharing is mandated by either ISED or the CRTC (as addressed above). 

These rules are set out in ISED’s framework applicable to mandatory roaming and the CRTC’s MVNO access framework (addressed above).

On May 19, 2022, ISED announced that the use of new 5G equipment and managed services from Huawei and ZTE will be prohibited and existing 5G equipment and managed services must be removed or terminated by June 28, 2024. ISED indicated that these measures would be implemented as part of a new telecommunications security framework.

On June 14, 2022, the Government of Canada introduced proposed legislation that would enact the Critical Cyber Systems Protection Act (Bill C-26). If passed into law, the Government of Canada may prohibit a telecommunications service provider from using all products and services provided by a specified person in, or in relation to, its telecommunications network or telecommunications facilities, or remove any such products. As of this writing, Bill C-26 has not passed into law, and our comments are based on the proposed wording of that bill, which may be amended during the legislative process.