Regulator says it is aiming for wholesale internet decision by end of summer
By Ahmad Hathout
The CRTC said Friday it will not immediately decide whether the three largest telecommunications companies should be banned from accessing the large telcos’ bundled middle- and last-mile fibre facilities, effectively greenlighting Bell, Rogers, and Telus to ride on those networks in the interim.
A consortium made up of Bell, Cogeco, Eastlink, TekSavvy, and the indie rep the Competitive Network Operators of Canada filed a late March request for the CRTC to rule that the Big 3 are banned from accessing Bell’s and Telus’s fibre facilities before May 7, which is the date an interim version of that regime is to take effect. The reasoning, according to the applicants, is that the Big 3 would be able to sell internet services outside of their operating territory, crush smaller competitors, and negatively disturb the market by taking away market share from those independents.
But days before the interim regime is set to take effect Tuesday, the CRTC said in a letter decision Friday that “it is inappropriate to decide in isolation the single issue of who can use wholesale Internet services when it is so closely intertwined with other issues” that the commission is looking at in totality with the rest of its review of the wholesale internet framework. The commission held a hearing on the framework in February.
“The Commission reiterates its previous statement that the access established through the temporary mandate in Telecom Decision 2023-358 may differ from the final decision,” it said in a response letter. “Therefore, any provider that plans to use the temporary mandate should assess the risks of doing so.”
The CRTC also said the applicants, in any event, failed to meet the irreparable harm component of the standard three-part legal test for interim relief. The commission said simply stating that the viability of independent internet service providers would be put at risk if a stay is not granted is not the same as providing concrete evidence that shows such harm.
On that note, the commission piggybacked off the Federal Court of Appeal’s decision to deny Bell’s request for a stay of the interim order on the basis that it similarly failed to prove that it would suffer irreparable harm.
Independent ISPs have already said they will utilize the interim regime, which will take effect only in Ontario and Quebec and at least until the CRTC makes its final decision on how to reconfigure the wholesale internet regime that has been through the wringer over the past few years — with proposed access rate changes and promises to fix the system to properly balance incentives to invest in networks and boost competition to drive down consumer prices.
The CRTC said in the same letter Friday that it is aiming to have a final decision on the wholesale internet regime by the end of this summer.
Until then, Rogers and Telus, who argued against the applicants’ request to ban the Big 3 from the regime, can effectively ride on Bell’s bundled fibre facilities.
Bell is disproportionately impacted by the decision because Telus’s fibre facilities only cover a small area of Quebec. Bell has argued that allowing competitors bundled access to both its transport middle- and last-mile fibre facilities would mean they would get immediate access to the network without having to invest in their own transport facilities, which was the intent of the disaggregated regime that the CRTC had adopted but which it has now effectively written off as ineffective (but not completely abandoned).
Bell said the November decision has forced it to slow down its fibre investments because it doesn’t make sense to accelerate investments in facilities that will serve to enrich its competitors.
Rogers and Telus alleged in their separate submissions opposing the application that it was an attempt by Bell to nullify the competitive impact of the interim regime.
Rogers argued that cable companies like itself have had to shoulder the load of the CRTC’s mandatory wholesale access regime, with roughly 75 per cent of wholesale subscribers being on cable networks. It conveyed that with mandated access to last-mile fibre, the commission is inserting some much-needed equilibrium in the system.
While Telus has argued that facilities-based providers should be banned from accessing other carriers’ last-mile fibre networks in their own serving territory, it said it should have that access outside of its operating territory for the sake of competition.
