TORONTO – The CRTC has rebuffed an attempt by TekSavvy Solutions to stop Rogers Communications from removing a coax cable network in a Toronto townhouse complex. The independent ISP serves customers in the 347-home development using Third Party Internet Access (TPIA) from Rogers.
TekSavvy also argued that because Rogers, which is replacing the legacy facilities with a fibre to the premise (FTTP) installation, didn’t provide the requisite six months notice, it should get wholesale access to the fibre under the same terms and conditions as TPIA over coax. As well, this access should be available for the duration of the six-month notice period.
In a December 4 Part 1 application, TekSavvy (or TSI) asked the Commission to intervene and halt coax cable network removal. It said, in the alternative, that Rogers should commit to offering aggregated wholesale high speed access (HSA) “in a technology-neutral manner, regardless of infrastructure.” TekSavvy acknowledged that its existing customers in the townhouse complex would be grandfathered onto the new fibre network, but said this wasn’t good enough because it would lose the ability to compete for new customers as disaggregated HSA adopted in Telecom Regulatory Policy 2015-326 has yet to be put into place.
In TRP 2015-326, the Commission changed its stance on wholesale HSA. Prior to the decision, incumbent telcos and cablecos were required to offer an aggregated service. Now this has been forborne from regulation, but incumbent providers have to continue to offer it until the disaggregated HSA tariff is approved and adopted.
TekSavvy argued in its application that Rogers was making significant network changes by ripping out the coax and replacing it with fibre and therefore was required to provide six months notice. The ISP received notice on November 24, even though retail customers in the townhomes, including those of TekSavvy, were notified on November 12.
Rogers is also contravening the “always provided for” provision for wholesale access contained in TRP 2015-326, according to TekSavvy. “If cable carriers are allowed to remove coaxial cable from a neighbourhood, and to require competitors seeking access to bottleneck functions to wait until an upcoming and lengthy tariff planning process is complete, then wholesale access will not always be provided for,” the company stated.
“Preserving the status quo, either by halting Rogers’ activities or by clarifying that new infrastructure is to be available to wholesale customers, at then-in-force rates, will avoid this irreparable harm." – Teksavvy
The bigger issue for TekSavvy is that because disaggregated wholesale access service over FTTP has yet to be ratified by the Commission, it will suffer irreparable harm by not being able to compete for new customers in the townhouse complex. “Preserving the status quo, either by halting Rogers’ activities or by clarifying that new infrastructure is to be available to wholesale customers, at then-in-force rates, will avoid this irreparable harm,” argued TekSavvy.
Rogers acknowledged in its reply that there were some internal communications issues that caused the delay in notifying TekSavvy of the coax network removal and fibre build. Despite this communication error, the rule for notification of a network change of this kind is only 72 hours not six months, the company argued.
The decision to grandfather TekSavvy’s existing customers to aggregated HSA over FTTP, even though Commission rules don’t require it, was the right thing to do, said Rogers. But to suggest that TekSavvy would suffer irreparable harm by not opening up the entire townhouse complex to competition is far fetched.
“With the opportunity to compete for these customers becoming available with the introduction of disaggregated TPIA service in the next year it is high hyperbole to claim that TSI’s market position will be permanently affected,” argued Rogers.
On the “always provided for” element, the incumbent Internet company said TekSavvy is trying to claim that access to every home will be provided for during a transition plan. This is simply not the case, added Rogers, noting that “the decision is clear that no access to FTTP is required until disaggregated TPIA is in place and therefore there will certainly be a period of time when wholesale access will not be provided for certain homes.”
In denying TekSavvy’s requests, the CRTC ruled on December 15 that while there was a serious issue to be determined, the company didn’t show the harm it would suffer was irreparable.
"TekSavvy has failed to demonstrate that it was actively targeting customers in the complex and that Rogers’ actions have caused it to lose customers that it would otherwise have had a reasonable chance of winning over." – CRTC
“More specifically, TekSavvy has failed to demonstrate that it was actively targeting customers in the complex and that Rogers’ actions have caused it to lose customers that it would otherwise have had a reasonable chance of winning over,” said the Commission. “Further, TekSavvy has failed to demonstrate that it did not have access to alternative wholesale HSA facilities from a different carrier in order to provide service to end users in the complex, or that such access would cause significant dislocation to TekSavvy.”
Access to wholesale facilities during the transition to aggregated from disaggregated HSA is now being studied by the Commission. Comments are due by January 25.
