By Ahmad Hathout
Telus is asking the Federal Court to quash a decision by the Governor in Council to force the CRTC to consider banning the three largest telecoms from accessing the bundled last-mile fibre networks of Bell and Telus in part because cabinet allegedly held “dozens of closed-door meetings between various parties adverse” to the Vancouver-based telecom without providing an opportunity to respond.
Those meetings, it argues, are outside the legal bounds of the review process permitted under the Telecommunications Act, which requires all parties who submit comments to the CRTC on a matter be given an opportunity to respond to things said in those meetings.
“These meetings run afoul of the transparency intended by the statutory framework that governs the Governor in Council’s review of CRTC decisions,” Telus said in its application for judicial review of last month’s cabinet decision, filed Wednesday. “TELUS and other parties that made submissions as part of the CRTC’s decision-making process were not given the opportunity to review, or respond to, any submissions conveyed to the Governor in Council as part of those meeting.”
Telus is also alleging that the minister of Industry, who provides advice to the Governor in Council before decisions are issued, breached section 13 of the Telecommunications Act by not giving the provinces an opportunity to consult with him on the recommendation he was about to make to the CRTC. That section requires the minister “to notify a minister designated by the government of each province of the Minister’s intention to make the recommendation or the order and to provide an opportunity for each of them to consult with the Minister.”
Telus is also putting forward two more arguments for the court’s consideration: that the order from cabinet is unreasonable because the interim decision – which required Bell and Telus to provide access to their fibre facilities in Ontario and Quebec – was supplanted by the CRTC’s August decision on the final wholesale framework; and that the CRTC has already looked into the issues that are in question and cabinet didn’t provide “sufficient explanation or justification for why such reconsideration was necessary.”
The CRTC has already launched a consultation on the matter at the behest of cabinet.
The judicial review application comes on the heels of a petition, started by Telus, asking Canadians to write their displeasure with the cabinet decision.
Telus, which doesn’t consider itself a national player because it lacks networks in parts of the country, has been the only one of the three largest telecoms to be a vocal supporter of the CRTC’s decision to allow Rogers, Bell and Telus to access, with conditions, the wholesale regime broadly. And now it’s fully invested in the regime: it recently announced that it is using the wholesale fibre regime to offer gigabit services in Ontario and Quebec.
“We’re already seeing the positive impact of the CRTC’s original decision,” said Zainul Mawji, executive vice president of Telus and president of Telus Consumer Solutions, in a statement on the launch of those plans. “As a new entrant in Ontario and Quebec, customers are choosing TELUS for their Internet service, proving that when more competition and choice is offered, the Canadian consumer wins with better affordability and increased options.”
Cabinet’s order “now threatens to render these investments meaningless, months after the Final Decision was rendered,” Telus said in its application.
The CRTC’s August decision only allows the Big 3 access to the wholesale regime where they don’t already have networks to ensure they are incentivized to invest.
Bell filed a petition in February challenging the CRTC’s decision in November 2023, which required Bell and Telus to provide competitors with wholesale access to both their traffic transport (middle) and last-mile fibre facilities in Ontario and Quebec on an interim basis until it made a final decision on the wholesale internet framework more broadly.
While cabinet refused to vary or rescind the decision, the minister recommended the CRTC look into banning the Big 3 from accessing those facilities in part because of the impact on smaller wholesale competitors.
In its recommendation to the CRTC, the minister expressed concern – as other providers have before – that allowing the large players to wholesale from Bell and Telus would allow them to enter smaller competitor territory and take up market share, which wholesalers have complained would make an already dire situation – with increased industry consolidation – worse for them.
Following cabinet’s recommendation, Rogers and CNOC, Eastlink and Cogeco filed applications to the CRTC asking it to ban the Big 3 from accessing the wholesale internet regime completely, regardless of technology and geography. TekSavvy filed its own application urging the CRTC to not allow the commission’s five-year access protection for Bell and Telus for new builds inside their operating territories, and also asking for a specific timeline on when the cable companies’ last-mile fibre builds will be subject to the aggregated access regime.
