By Ahmad Hathout
Saskatchewan Telecommunications Holding Corp. has fired Thursday the first challenge to the CRTC’s decision to force it to open its last-mile fibre facilities to its major competitors, alleging the regulator relied in its decision on a cabinet direction that was already beyond the jurisdiction of the Governor in Council.
“The CRTC, by adhering to the cabinet direction, conducted a lengthy consultative exercise, with input from a broad spectrum of industry participants and interested parties, including SaskTel, in service of making a determination that was, in effect, already made,” the Crown corporation says in its memorandum to the Federal Court of Appeal. “The CRTC thus fettered its discretion.”
The part of the February 2023 cabinet direction in question is section 10, which advises the CRTC to mandate the provision of aggregated high-speed internet access until competition is sufficient to where such a mandate is not necessary. The CRTC cites the cabinet direction in its decision.
The problem for SaskTel is that section allegedly conflicts with section 8, which limits the Governor in Council to issue directions of “general application on broad policy matters” on telecom policy objectives. In other words, narrowly ordering mandated access to aggregated facilities by competitors is not broad, but very specific, SaskTel conveys.
“The CRTC errs in law by relying on a direction the Governor in Council had no jurisdiction to make,” SaskTel says in its application. “It follows therefore that any decision predicated on an ultra vires direction is ultra vires the CRTC.
“Cabinet’s engagement with such a regulatory framework on a policy level is consistent with the ordinary processes of government, but Parliament could not have intended to give Cabinet the mandate to interfere with the CRTC’s work by pre-determining the outcomes of consultation processes or formulating mandates with direct effect on particular participants in the regulated sector,” SaskTel added in its application.
Does that argument sound familiar? That’s because Bell made a nearly identical plea when it challenged the CRTC’s decision to temporarily mandate access to Bell’s and Telus’s aggregated fibre facilities in November 2023, alleging the regulator relied on that section of the policy direction when the Governor in Council doesn’t have that jurisdiction.
“Parliament did not confer upon the Governor in Council a power to make a specific direction like s. 10,” Bell said in its notice of application this spring.
Exactly 30 days earlier, on August 13, the CRTC ordered the large telcos – Bell, Telus, and SaskTel – to negotiate with competitors on access to their middle- and last-mile fibre facilities, which effectively broadened to the whole country the aforementioned interim mandate that previously only applied to Bell and Telus and was concentrated in Ontario and Quebec.
But the regulator also allowed large telecoms, including the cablecos like Rogers, to ride on those facilities if they didn’t already have networks in the area by February 2025. The CRTC is giving the telcos a five-year head-start to ensure it can recoup its investments and prepare for more competition on new builds.
SaskTel has always maintained that it isn’t just another legacy telco; it is a telco that is nestled inside the border of the province that already has robust competition from the cablecos. It has long emphasized to the CRTC that getting high-speed internet to rural and remote communities is a capital-intensive endeavor, and allowing unfettered access to its networks will jeopardize that.
Friday is the deadline to appeal the CRTC decision to the Federal Court of Appeal.
