By Ahmad Hathout
A group of internet service providers has filed a petition to cabinet on a precautionary basis asking it to vary the CRTC’s wholesale framework decision from August in case the regulator decides, after its latest consultation, not to ban the three largest ISPs from accessing the regime.
The launch of the CRTC’s latest consultation came at the behest of cabinet, which ordered the CRTC to revisit an interim decision from November 2023 that did not exclude Rogers, Bell and Telus (Big 3) from accessing the last-mile fibre networks of the latter two telcos in Ontario and Quebec.
The problem for the petitioners – SaskTel, Eastlink, Cogeco, and the Competitive Network Operators of Canada – is that the regulator was asked to look at that narrow issue, even though the CRTC released a superseding final decision in August that allows the Big 3 access to the wholesale regime broadly, regardless of technology or geography — with some conditions.
Cabinet was hamstrung because it was responding to a petition by Bell in February, months before the regulator’s final decision.
“If the Commission, on its own motion or otherwise, varies the Final Decision to prohibit the Big 3 from accessing wholesale aggregated HSA over any technology anywhere in the country, then this petition will be unnecessary, and we will withdraw it,” said the petition, made public on November 29.
“However, if the Final Decision continues to permit the Big 3 to access wholesale aggregated HSA, even if only over certain technologies or in certain parts of the country, then not only will the government’s policy objectives be completely undermined, but the Big 3 will be able to leverage their substantial market power to drive independent regional and local internet service providers (ISPs), including the Petitioners, out of the market,” the petition continued. “This will ultimately hamper innovation, hurt affordability, remove investment in network expansion, and reduce choice for Canadians.”
Telecoms critical of the CRTC’s final decision, including Rogers, CNOC, Eastlink and Cogeco, used cabinet’s order as a piggyback to file review-and-vary applications asking the regulator to institute the Big 3 ban on the wholesale regime broadly. The CRTC has since consolidated those applications into one, but left the matter on cabinet’s recommendation as its own proceeding.
“The competitive and investment issues noted by Minister Champagne and in the Cabinet Order are not confined to FTTP networks in Ontario and Quebec; they are equally applicable to wholesale HSA service over any technology anywhere in the country,” the petition said. “In the Final Decision, the Commission itself recognized the importance of including all technologies, including HFC, in limiting the access of incumbent providers. However, the Final Decision did not go far enough to prevent the associated harm.
“Enabling the Big 3 to leverage the wholesale HSA regime, over any technology, anywhere in Canada, will further entrench their dominance in the provision of wireline and wireless services, to the detriment of smaller competitors and regional facilities based competitors, in particular. Thus, the inclusion of HFC technology, and all provinces, in a prohibition is critical.”
Meanwhile, Telus, the only Big 3 telecom supporting that access, has been on the offensive in support of that access. Before filing an application asking the Federal Court to hear why it should quash the cabinet order, it launched a petition asking Canadians to express their displeasure with cabinet’s decision.
Photo via Canada Infrastructure Bank
