TekSavvy asks for judicial review of CRTC wholesale rate stay

TekSavvy Solutions Inc. is asking the Federal Court of Appeal to review the CRTC's Sept. 28 decision to grant a request from incumbents for a fresh stay on the implementation of the lower wholesale internet rates it announced in August 2019. In the court filing, TekSavvy takes issue with the regulator's application of the test for granting a stay, known as the RJR-MacDonald test. The CRTC granted a stay on the implementation of its own wholesale rates until it decides on a review-and-vary request from the incumbents, the only remaining challenge to the slashed wholesale rates, after the Liberal government declined to overturn the rates in August, and the Federal Court threw out the incumbents’ court challenge in September.. The test holds that in order for a request for a stay to be granted, those requesting it -- in this case BCE Inc, Rogers Communications Inc., Cogeco Inc., Bragg Communications Inc.'s Eastlink, Shaw Communications Inc., and Quebecor Inc. -- must meet three criteria. First, there must be a "serious issue" at stake. Second, those seeking a stay must demonstrate that "irreparable harm" would occur and that implementing the order "could result in a market distortion that could not be subsequently remedied by any court order," and that these harms are not "speculative." Finally, the test requires those seeking the stay to prove that the "balance of convenience" favours maintaining the status quo and staying the order. In its request for a stay, Bell had argued that if the regulator implemented the new wholesale rates, it would face irreparable harm in the form of the "unrecoverable" retroactive payments mandated by the CRTC's original August 2019 decision. The incumbents had also argued that they would suffer irreparable harm in the form of reduced investments, citing moves the incumbents have already made to cut investments in the wake of the decision. In its decision to grant the stay the CRTC agreed, pointing to Bell's having cited its disconnection of 14 wholesale customers for non-payment and sending overdue notices to 10, out of a total of 150 customers. TekSavvy disagreed with the strength of the evidence Bell provided. "No evidence was provided regarding the current financial status of these unnamed independent ISPs," TekSavvy wrote in its application for judicial review, arguing that TekSavvy itself and "many other independent ISPs are fully solvent and can repay any outstanding amounts in the event the CRTC adjusts the Final Rates Order." The CRTC's finding of irreparable harm, TekSavvy continued, is unreasonable. "The CRTC made a finding of irreparable harm only with respect to retroactive harm asserted by Bell, and yet applied a stay preventing the implementation of the entire Final Rates Order, including the new rates going forward," TekSavvy wrote. "The evidence provided by Bell in this regard consisted of a single affidavit containing bald assertions that failed to demonstrate in a detailed and concrete way that Bell would suffer real, definite and unavoidable harm that could not be retroactively repaired." In the third stage of the RJR-MacDonald test, the CRTC decided that the balance of convenience favoured Bell and the cable carriers, that the "the competitors’ subscriber market share over a short period of time will likely not be negatively affected," and that there is "a public interest in regulatory certainty" on the matter of wholesale requests. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

TekSavvy asks for judicial review of CRTC wholesale rate stay

News | October 29, 2020

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TekSavvy asks for judicial review of CRTC wholesale rate stay

News | October 29, 2020

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