Policy impacts of CRTC wholesale rates outside SCC purview: TekSavvy, CNOC

The Supreme Court appeal incumbent telecoms filed in November amounts to little more than a "disagreement" with a Federal Court of Appeal decision, focused on policy considerations that have no place before Canada's highest court, according to a filing from one of the incumbents’ chief adversaries in the long-running court fight over the CRTC's rates for third-party wholesale access, TekSavvy Solutions Inc. In a Dec. 3 filing in response to an incumbent application for leave to appeal a month previously, TekSavvy characterized the incumbent application as having raised "numerous policy issues that do not warrant intervention from the Supreme Court of Canada." According to TekSavvy, incumbent arguments that the wholesale rates set by the CRTC are "manifestly unfair and inadequate," that the new rates oblige the cable carriers to make hundreds of millions in payment to resellers, and that the new rates would widen the "digital divide" are all outside the jurisdiction of the court. "The Applicants may cry foul, but the purported ramifications of the CRTC’s valid exercise of its rate-setting power, including impacts on the Applicants’ investments, are a matter of pure policy. It is well-established that matters of policy, like this, fall outside the courts’ domain," TekSavvy told the court. The arguments mark the latest in a court dispute initially begun last fall when the incumbents -- BCE Inc., Rogers Communications Inc., Quebecor Inc., Shaw Communications Inc., Bragg Communications Inc. and Cogeco Inc. -- appealed the CRTC's newly-slashed wholesale rates for third party internet access. Outside of court, the incumbents also filed a petition to the government to overturn the decision, as well as a review-and-vary application to the CRTC itself. The government declined to overturn the rates, but issued a statement that was sympathetic to many of the incumbent arguments about the rates. The review-and-vary application is still being considered by the CRTC, though the commission's stay on the new rates faces its own judicial review challenge from TekSavvy. In September, the Federal Court of Appeal rejected the incumbent appeal, upholding the CRTC's establishment of lower rates. In the December filing to the Supreme Court, TekSavvy argued that only the review-and-vary process still before the CRTC is the "appropriate forum for these policy-oriented complaints—not the Supreme Court of Canada." Alongside TekSavvy, the Competitive Network Operators of Canada (CNOC) also asked the court to reject the incumbent application for leave to appeal. In its Dec. 3 filing, CNOC rejected the incumbents' argument that the Federal Court of Appeal fell short of its obligations to analyze the CRTC's reasons in arriving at its rates decision, as required under a new standard of administrative review set out in a 2019 Supreme Court decision known as Vavilov. Instead, CNOC said, the Federal Court of Appeal "understood and situated the policy basis for the impugned Telecom Order by scrutinizing the reasons of the CRTC, the submissions of the parties, previous orders in the proceeding and the CRTC’s overarching regulatory documents." "This is exactly what Vavilov and its predecessors tell reviewing courts to do," CNOC told the court, and says the court fully rejected the incumbent argument that "the CRTC failed to demonstrate compliance with telecommunications policy objectives" in setting the new rates. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Policy impacts of CRTC wholesale rates outside SCC purview: TekSavvy, CNOC

News | December 7, 2020

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Policy impacts of CRTC wholesale rates outside SCC purview: TekSavvy, CNOC

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