By Ahmad Hathout
Bell has filed Thursday a challenge to the CRTC’s decision to force it to negotiate access to its last mile fibre network, saying it will cause “irreparable harm through the loss of customers and revenues.”
The claim in the Federal Court of Appeal asks for an immediate stay on the CRTC’s decision until the court decides on the case. Bell said it meets the three-part legal test for a stay, including that this is a serious issue to be tried, that this will cause irreparable harm to it, and the balance of convenience leans in its favour over harm to the public interest.
Bell said the decision will not only harm its bottom line, but it will also deter and “continue to deter Bell’s investments in existing and future networks.”
It added that the CRTC’s decision includes a proviso that it could change or eliminate the regime, which means it could very well lose millions of dollars in the interim without a firm ruling on whether the order will survive past the regulator’s decision in its wholesale internet review.
Bell draws the court’s decision to stay the CRTC’s decision in 2019 to lower the wholesale internet access rate as a precedent for this case.
The telco’s specific legal arguments take aim at the alleged wrong test the CRTC used to come to its decision – that is to say, it alleged there was no three-part test used and instead, the commission used its policy authority under the Telecommunications Act and Cabinet’s policy direction to arrive at the decision. Bell says the alleged lack of notice on that makes it an unfair process.
The CRTC has said in recent decisions that it has administrative leeway when it comes to promoting the telecommunications policies over which it presides. In a decision on competitor access to wireless networks, Rogers alleged that the CRTC’s decision replaced legal precedent with a policy-driven focus.
The CRTC said in the decision in question that only the telcos Bell and Telus, not the large cablecos like Rogers, must within six months provide access to their fibre-to-the-premises networks in Ontario and Quebec on the current aggregated regime, which allows competitors to lease both the traffic transport and the last mile portions of the network together. (The only time the CRTC required competitor access to last mile fibre was under the disaggregated regime, which forced the competitors to get or lease their own traffic portion.)
The result is that competitors will have access to the last mile fibre networks more quickly since it’s all bundled.
The filing comes just over a week after the regulator’s decision, an unusually quick reaction considering appeals in such cases often come at the end of the 30-day deadline to file.
Then again, as if it was anticipating the decision, Bell took mere hours after the CRTC’s decision last Monday to announce a cutting back on its fibre investment plan.
The telco has said on numerous occasions that the logic of the CRTC’s preliminary view that last mile fibre access should be mandated under the current aggregated regime is flawed because it allegedly presumes that it has driven fibre to a sufficient number of premises. Instead, Bell said it still has at least five million households to wire up with the advanced technology.
Telus – the other telco subject to the interim regime but not to the level of Bell considering the latter’s network covers much more of the two provinces – has said that even if it had connected all its premises with fibre, it would still need a buffer period to recover its investment costs.
All of this is to say that the common complaint among the large telecoms against the preliminary view was that the CRTC didn’t show sufficient evidence that it is required now and that there was concern that this would nuke incentives to invest in the network that will offer faster speeds to Canadians.
Screenshot of Bell CEO Mirko Bibic.
