Incumbents ask court for delay of wholesale rate appeal

Incumbent cable companies have asked a Federal Court of Appeal judge to delay their appeal of the CRTC's wholesale rates decision until the proceeding can be conducted in person. In a letter dated May 20, lawyers representing Rogers Communications Inc., Bragg Communications Inc., Cogeco Inc., Shaw Communications Inc., and Quebecor Inc. have asked Justice David Stratas for the previously agreed-to two day hearing on June 25 and 26 be adjourned until the court can conduct in-person meetings. The issues at hand are too complex, the materials too technical, the confidential information too "awkward," and the outcome too "high stakes" to be dealt with over video conference, according to a letter from lawyers representing the companies. In a separate letter also dated May 20, BCE Inc. says that it agrees with the cable carriers that given "the particular circumstances of this appeal, it would be technically impractical, unfair to the parties, and a disservice to the Court to attempt to conduct a remote video conference hearing of this complex appeal." The respondents in the appeal -- TekSavvy Solutions Inc. and the Canadian Network Operators Consortium -- counter that the cable carriers are stalling. "This is simply another tactic that the incumbents are using to delay a decision on the new wholesale rates and to keep competition stifled in this country, keep prices high, and tilt the playing field in their favour," TekSavvy vice-president of marketing Mike Stanford said in a phone interview. CNOC president and Distributel Inc. CEO Matt Stein said in a phone interview that delays advantaged incumbents and cable carriers because “the longer the delay goes on, the longer it suppresses competitors' ability to compete by keeping the rates that we're charged high.” The cable carriers point to the joint public appeal book containing thousands of pages of material, much of which they say relies "heavily on industry specific jargon and terminologies" that would trigger questions. "These questions will be difficult to address efficiently and effectively in a video-conference setting," the cable carriers argue in their letter. They go on to say that the outcome of the appeal will "affect hundreds of millions of dollars that are directly at issue and significantly impact the future of internet infrastructure investment in Canada, it is vitally important that the Court have ready and efficient access to all of the information it requires to address the numerous matters at issue." "We respectfully submit that this will only be possible if an in-person hearing is held," the companies write. Teksavvy and CNOC argue that if videoconferencing is good enough for the government, it is good enough for the wholesale rates appeal hearing. "Our largest corporations, and our governments and our parliament are dealing with complex issues that involve big amounts of money and big decisions and many people involved in the discussion from various parties," Stanford said. "We seem to be functioning as a country, and companies seem to be functioning over videoconferencing. So I'm not sure what's so special about this that would cause it to be unable to be heard by a video conference." Stein said the Federal Court of Appeal was already hearing other “hard cases” via videoconference. “This is not a one week or a two week kind of thing, this is a two-day case,” Stein said. In a letter responding to the cable carriers and incumbents request, lawyers representing CNOC sent a letter to Justice Stratas on Thursday requesting that the hearing go ahead as planned in June, via video conference. CNOC's letter points to a May 6 decision in the Federal Court in a separate case, in which Justice Roger Lafrenière wrote that that “until public health officials lift stay-at-home orders and relax restrictions … hearings of the Federal Court will have to be conducted remotely using the appropriate, available technology. Given that Court facilities will remain closed for the foreseeable future, must be rejected since it would result in delaying the trial indefinitely.” The letter from CNOC goes on to argue that if the court delays the hearing, the incumbents should be required to argue again why the stay of the CRTC's new rates should be kept in place. "Given the significant costs that the ongoing stay imposes on independent ISPs, it would be appropriate to lift the stay at least to give effect to the just and reasonable rates ordered by the CRTC on a going-forward basis," the letter argues. The issue of wholesale rates has been a particularly contentious one. When the CRTC issued a decision in August slashing rates that incumbents were allowed to charge independent internet service providers, the move triggered a flurry of responses from the incumbents. In the wake of the decision, incumbents filed the appeal, cut back on planned infrastructure investment in protest, a petition to the government, TekSavvy Solutions Inc., Start.ca, and Distributel were among those that lowered their internet prices as a result of the decision. Last month in a rare show of unity, both the federal Conservatives and the NDP called for the Liberal government to step in and enforce the CRTC's wholesale rate decision. TekSavvy has asked the CRTC to put in place a fresh interim rate regime for the duration of the COVID-19 pandemic. In March, TekSavvy announced that it would lay off 130 workers and increase internet bills, citing the Federal Court stay of the wholesale rates. — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Adam Langenberg at alangenberg@thewirereport.ca

Incumbents ask court for delay of wholesale rate appeal

News | May 21, 2020

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Incumbents ask court for delay of wholesale rate appeal

News | May 21, 2020

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