Incumbents ask for two more months to file their R&V of the wholesale rates decision
GATINEAU – Following the August CRTC decision on final rates for aggregated wholesale high-speed internet access services (CRTC Telecom Order 2019-288), it was obvious by their collective reaction that the incumbent ISPs would challenge the decision, by any and all means necessary.
They went to the Federal Court of Appeal already and were granted a stay, as we reported, and the next step is to ask the CRTC to review, rescind or vary its own decision, as provided for in Section 62 of the Telecom Act. The Commission’s rules of procedure require applications to that effect to be filed within 90 days of the decision, therefore on or before November 13.
On October 28, however, cable companies Cogeco, Eastlink, Rogers, Shaw, and Vidéotron collectively requested from the Commission an extension of the R&V filing deadline to January 13, 2020.
They cite many reasons for requesting such a delay but mostly say it’s because of the overall regulatory workload and complexity of issues.
“The Decision raises important and complex issues given, for example, its impact on facilities-based investment and rural deployment of high-speed Internet service. It is in the public interest for the Cable Carriers to be able to file thorough, cogent materials as part of the R & V Applications, which will be helpful to the Commission,” their application for delay reads.
“Regulatory resources are stretched very thin at this time for all parties in the industry. In addition to working on a number of important proceedings in front of the CRTC and the Department of Innovation, Science and Economic Development—Implementation of the Internet Code, Wireless Device Financing and the 3500 MHz spectrum auction consultations—our regulatory teams are hard at work on the critical Wireless Review,” they added.
The Commission responded by asking other parties to the TPIA decision for their comments, to be filed by November 4th.
While Bell wrote it was supportive of that request and added they would also make the same request, Telus took no position on the extension request and SaskTel said it would not ask for an R&V but still supported the delay.
PIAC, Distributel, CNOC and Vaxination Informatique lashed out at the request – in some places entertainingly, in fact.
“Both the Cablecos and Bell have filed and vigorously pursued an appeal in the Federal Court of Appeal of TO 2019-288. During this time, they had ample time and easily recyclable arguments that they could have used to file an R&V of TO 2019-288 on time.
“They simply failed to do so. Instead, they have waited to the last possible instant to seek an extension of 60 days (whether over the holidays it counts as 43 formal days or not) when, if the litigation truly taxed either the Cablecos or Bell (and here we note both organizations engaged major outside litigation counsel to pursue their court appeals) they could have sought this extension far earlier,” PIAC argued in its submission.
“The Extension Requests are symptomatic of a larger problem and clearly demonstrate both (i) a measure of contempt for the Commission’s processes and deadlines, and (ii) the strategies the Incumbents will employ to frustrate any decision or process which is potentially contrary to their interests. Specifically, the Incumbents first ignored the date established by the Commission for filing tariffs that reflect the decisions in Telecom Order 2019-288. Then when clearly directed by the Commission to comply, they instead sought the interim stay referenced in the Cable Carriers’ Extension Request,” Distributel writes in its submission.
“Finally, and at the risk of understatement, it is very difficult to plan and to implement price changes while there is continued uncertainty as to whether the rates established by the Commission in Telecom Order 2019-288 will be confirmed,” Distributel concludes.
“The choice of appeal routes available to the Incumbents is well-known and parties choosing to take more than one appeal route from a Commission determination in the past have had to adhere to the applicable timelines. The Incumbents’ position in this case is therefore self-serving,” – CNOC
CNOC filed a lengthy paper with eight annexes, within a week, and they also oppose the request.
“The Incumbents should not be allowed to leverage their decision to pursue multiple channels for appealing the Decision (i.e., to the Federal Court of Appeal and to the Commission) as grounds for an extension to the time for filing a review and vary application. The choice of appeal routes available to the Incumbents is well-known and parties choosing to take more than one appeal route from a Commission determination in the past have had to adhere to the applicable timelines. The Incumbents’ position in this case is therefore self-serving,” they argue.
While asking forgiveness for his rant, Jean-François Mezei (Vaxination Informatique) raises a few good points. “While an R&V can challenge the wrong implementation of an existing policy in a decision made within 90 days, it cannot challenge the policy itself which could have been made far more than 90 days before. What happens when the R&V filed in January contains arguments challenging 2016-117?”
“The Commission could agree to start a new public notice to review the costing principles in exchange for the incumbents implementing 2019-288 tariffs (and dropping the FCA process if the judge hasn’t thrown it out already). Once retroactive payments have been made to ISPs, perhaps the Commission in a show of good faith, could then make 2019-288 tariffs interim until the new consultation issues new rates 4 years later (which happen to be lower), at which point the incumbents will go crying at the FCA, then ask for lengthy delay with CRTC before filing another R&V. Lather Rinse, Repeat,” he suggests.
“Granting the incumbents an unjustified delay till January panders to the incumbent’s strategy to undermine Policy Objectives by stalling the process as long as possible and must be treated differently from a request for 1 week extension because a key resource is at a golf tournament unavailable,” he adds.
TekSavvy’s response was along similar lines. “The true motivation of the Cable Carriers and Bell is clear: The longer they are able to continue to delay the implementation of the new rates, the longer they enjoy the benefits not only of their own market power and consequently inflated retail prices, but also the added benefits of what have already been found to be unfair and incorrect inflated wholesale rates,” reads the independent ISP’s filing.
November 13th is fast approaching and so we assume the cablecos and Bell have a plan B if their request is denied.
All that said, the Telecom Act provides for yet another avenue of appeal (which we have suggested could use some fixing), a petition to Cabinet and there is no provision for that 90-day deadline to be extended – and it’s also due November 13th. It is a certainty the decision will be appealed to cabinet as well.
The Commission gave the cable companies until Wednesday, November 6 to respond to the responses to its delay request. As of late Wednesday, we have not yet seen that response.
UPDATE: We now have seen the responses of Bell and the cable companies. Bell notes everyone is under the gun because of the extension granted to CNOC and Distributel to respond on at the Federal Court of Appeal. “In light of the large volume of materials involved in the proceeding and their resource constraints, we observe that CNOC and Distributel (who now oppose our Extension Request) themselves asked for an extension for the time permitted to file responses on the motions (and we note that we did not oppose this extension),” reads Bell’s response filed with the CRTC today (November 6).
“In addition, TekSavvy sought and won the right to be added as an intervener in the FCA proceedings and thus filed its own materials. As a result, the FCA process in this case has taken longer than usual – ending on 4 November 2019, a mere week or so before the un-extended R&V deadline. We therefore submit that the short Extension Requests are justified in the circumstances.”
The cablecos took umbrage at the ones questioning their veracity. “Those opposing the request under consideration have attacked the Cable Carriers’ motives and honesty, claiming that a 61-day extension is unnecessary given the ‘recycled’ arguments they expect will form the R&V Applications and that the Cable Carriers’ modus operendi is ‘delay, delay, delay’, levering multiple attempts to overturn the Decision in different fora into a disingenuous request for more time,” reads the cable carriers' reply.
“Such suggestions are baseless and offensive.”
Expect a mighty quick Commission decision on this.
