CHATHAM, Ont. – Independent ISP TekSavvy Solutions has asked the Federal Court of Appeal to quash the September 28 CRTC decision which granted Bell Canada’s request to stay the implementation of the CRTC’s August 2019 order setting final rates for wholesale Internet services.
Over fourteen months ago, the CRTC released its final wholesale rates which third party internet access providers pay incumbent network owners. The rates in that decision are far lower than the interim rates which had been in use and called for retroactive payments. This came after a four-year proceeding and as readers will recall, the incumbents appealed it to the Federal Court (and lost), to cabinet, (which seemed to side with the incumbents while not officially sending it back to the CRTC for a re-hearing), and to the Commission itself, which is now in the throes of a Review & Vary of its August 2019 decision.
On September 28, 2020, the CRTC released its Stay Decision, “which approved Bell’s request to stay both the retroactive and future effects of the Final Rates Order until such time that the CRTC decides Bell’s request to raise those rates,” reminds TekSavvy in a press release today. That stay also paused the decision for all incumbent carriers.
In its court filing yesterday, TekSavvy argues “the CRTC’s Stay Decision is so flawed and unreasonable that the Federal Court of Appeal should quash it,” reads the release.
TekSavvy says, as reads its release:
- The CRTC based its Stay Decision upon a finding of irreparable harm only with respect to retroactive harm asserted by Bell, yet the CRTC applied a stay preventing the implementation of the entire Final Rates Order, including the new just and reasonable final rates, going forward. TekSavvy argues that it was unreasonable for the CRTC to apply a blanket stay, including to the new rates going forward when the CRTC failed to find that any irreparable harm existed going forward.
- The CRTC made its finding of retroactive harm only with respect to harm asserted by Bell, regarding potentially unrecoverable refunds from a handful of unnamed competitors. TekSavvy argues that it was unreasonable for the CRTC to apply the stay to all competitors, including TekSavvy, where the risk of unrecoverable refunds was not substantiated, since TekSavvy is fully solvent and can repay any outstanding amounts in the event the CRTC adjusts the Final Rates Order in the future.
- The CRTC’s finding of retroactive harm to Bell was unjustified by the evidence before it, which consisted of one affidavit containing bald assertions by the head of Bell’s wholesale department, and failed to even quantify or estimate the harm asserted by Bell.
- It was unreasonable for the CRTC to find that Bell’s unsubstantiated assertions of unquantified harm from potentially unrecoverable refunds to a handful of unnamed competitors, outweighed the public interest and the interests of competitors like TekSavvy. This is particularly so, given that the Stay Decision permits large carriers to continue charging “interim” rates that are “not just and reasonable” and to retain hundreds of millions of dollars in overpayments collected from competitors over the nearly half-decade that the CRTC has permitted them to charge rates that are not just and reasonable.
“The stay decision is unreasonable and directly contradicts the federal government’s direction to the CRTC to promote competition, affordability, consumer interests, and innovation”, says Andy Kaplan-Myrth, vice-president of regulatory and carrier affairs for TekSavvy. “The CRTC’s failure to implement the just and reasonable final wholesale rates it set in 2019 only serve to weaken competition and keep prices high for consumers.”
