Telus appealing CRTC speed cap relief

Telus Corp. is going to court over the CRTC’s decision last month to grant smaller internet providers a pause on a rule that caps the internet speeds they can provide their customers if they don’t switch to a new regime they argue is impractical. Last month, the CRTC temporarily granted one part of an application filed last year by the Canadian Network Operators Consortium (CNOC), which asked the regulator to do away with a rule that capped service to customers at 100 Mbps download if providers don’t move to the new disaggregated regime for wholesale internet service. The new regime will allow smaller players access to fibre facilities in exchange for bringing their own transport services. The CRTC, which granted the relief until it decides on the rest of CNOC’s application, has yet to set final rates for that fibre access under the new regime, which is when the speed threshold would have been triggered. But on Wednesday, Telus filed an appeal in the Federal Court of Appeal arguing that the CRTC granted CNOC’s request despite its application not meeting some of the requirements to grant the relief. In its decision, the CRTC departed from the standard three-part test known as the RJR-MacDonald criteria, one aspect of which requires the complainant to show that it has suffered “irreparable harm.” The CRTC ruled that CNOC did not meet that test for interim relief, yet it still granted it for public interest reasons. “The CRTC violated the rules of procedural fairness and/or erred in law by departing” from the test, Telus said in its judicial review application. Telus “had a legitimate expectation that the CRTC would not depart from the standard three-part test without notice to the parties.” The appeal does not name the CRTC, instead opting to serve BCE Inc., Rogers Communications Inc., Shaw Communications Inc., Quebecor Inc., TekSavvy Solutions Inc., Cogeco Inc., Bragg Communications Inc., the British Columbia Broadband Association, Distributel Communications Ltd., and CNOC. Why the CRTC isn’t named is not known. Calls to Telus and its counsel, Nelligan O'Brien Payne LLP, were not picked up and emails not returned on Thursday. Telus noted in the appeal that all the named providers, including CNOC, focused on addressing the three elements of the test and that the CRTC said previously it would follow that method. Beside proof of harm, parties must also show that the concern is a serious issue that must meet a “balance of convenience,” including the public interest. Christian Tacit, a lawyer for CNOC, said last year that the speed cap represented an “existential crisis” for small ISPs. CNOC had complained about the new regime being too expensive and unworkable, considering the many more incumbent central offices smaller players would have to connect with to deliver fibre services. In its submission to the government-appointed panel studying the country’s communications laws, CNOC warned that “many” ISPs could shut down as a result of problems with the disaggregated system. Larger ISPs had argued against CNOC’s request because it would eliminate the incentive to move to the new regime. The disaggregated regime was initially praised by smaller providers because it would allow, for the first time, smaller players to access wholesale fibre-to-the-home (FTTH) services, with its much faster speeds. CNOC argued that this was important because more Canadians each year are adopting those speeds. If the smaller players couldn’t provide more than 100 Mbps without moving to what it called an untenable new regime, competition would be severely hampered, it argued. CNOC noted that CRTC data shows that 25.8 per cent of Canadians in 2017 were buying internet speeds at or above 100 Mbps — up from 15.8 per cent a year earlier and eight per cent in 2015. CNOC said that its data, and projections based on that rate of growth, indicate more than a third of Canadians who are now signing up for internet services are subscribing to speeds above 100 Mbps. “The Commission is concerned that implementing the Speed Cap as planned could prove disruptive for consumers in a growing segment of the retail Internet services market,” the CRTC said in its March decision. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Telus appealing CRTC speed cap relief

News | April 18, 2019

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Telus appealing CRTC speed cap relief

News | April 18, 2019

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