By Ahmad Hathout
The CRTC is asking for comments by Friday on a request by a consortium of internet service providers urging the regulator to rule on the eligibility of the big three telecoms to lease bundled access to middle and last mile fibre facilities both under the interim, and any future permanent, mandated regime.
The consortium – which is made up of Bell, Cogeco, Eastlink, TekSavvy, and the indie rep the Competitive Network Operators of Canada – filed a request dated March 28 to the CRTC asking for a final ruling before May 7 on whether Bell, Rogers, Telus and their flankers will be ineligible to access the framework to avoid what they call inevitable distortions in the market.
May 7 is the date by which Bell and Telus must negotiate aggregated access to their fibre networks in Ontario and Quebec, and marks six months since the CRTC ordered that interim regime to be put in place.
The consortium’s request would fill a gap in the CRTC’s ruling and address an issue on which competitors have requested clarity. While the regulator said it will determine at the conclusion of the wholesale internet review whether it will make the FTTP access regime permanent and whether the big three will have access to it, it didn’t rule in November about whether those large players will have access under the interim framework.
“If Rogers and Telus are able to access the service on a temporary basis in Ontario and Quebec…and the Commission later determines that Telus, Rogers, and Bell should not be eligible for a permanent [aggregated FTTP] service, there will be customers who have already switched to these carriers from either Bell or a wholesale competitor,” the consortium said.
“Once Telus has entered a market, and customers have changed providers, it will be difficult, if not impossible, for competitors to regain these lost customers – namely, to ‘unscramble the egg’,” it added. “Telus or Rogers will have gained market share in the interim and customers are unlikely to simply be returned to smaller providers following any final decision. Even modest customer gains for the likes of Telus or Rogers would represent comparatively large losses to smaller providers.”
All parties in the consortium have previously warned against allowing the big three to have access any kind of wholesale internet regime, let alone on FTTP. The principal concern is that the bigger providers have the money, brand and bundling prowess to grow their market share in smaller competitor territory — with bundling a major talking and action point among large providers.
During the wholesale internet hearing, Cogeco reported that, “Already half of third-party users on our network are from the big three…So we’re already in some situations today where we need to make investments in certain parts of our network to enable the big three to make profit that we’re not profiting [from].”
“It is independent ISPs who are suffering from an ‘ongoing and dramatic decline,’ not the largest incumbents or their flanker brands,” the consortium said in its letter. “Permitting Telus, Rogers, Bell, and their affiliates to access [aggregated FTTP] on 7 May 2024 leads to an illogical result, in that a temporary service intended to support independent ISPs on an urgent basis will instead support the three largest providers, to the detriment of independent ISPs.”
“If such an eligibility criterion is not implemented, then the survival of independent ISPs may well be irremediably compromised in the temporary access period while the Commission considers the issue further in the ongoing proceeding,” the consortium said.
Because of the urgent nature of the request, the CRTC will not have a reply period, it said in a letter.
If the CRTC does not make a final rule on the matter before the interim regime kicks in on May 7, the consortium is recommending that there be an interim relief order to make the big three ineligible until it can come to a determination on the matter. The consortium added it isn’t trying to expedite or prejudge the final ruling as to the permanency of the regime.
CIK Telecom had filed a request in February for the regulator to make a ruling on whether the big three can access the temporary regime, but the CRTC dismissed it on the basis that it was already reviewing the issue under its wholesale internet review.
The consortium disputes this. Absent the CIK Telecom application, parties don’t have a procedural avenue to address the issue, the consortium said. And because the CIK Telecom request came at the time of the wholesale internet hearing, the parties couldn’t discuss it because it was still an open file, it said.
“When the Commission dismissed the CIK Application,” the consortium said in its letter, “parties to this proceeding were left with no means of preventing serious and potentially permanent distortionary effects on the market if the National Carriers are not made ineligible to access mandated [aggregated FTTP] services before 7 May 2024.”
