CNOC files review and vary application on CRTC in-building wire access decision

The Competitive Network Operators of Canada (CNOC) has filed a review and vary application with the CRTC, in which the trade group representing smaller independent and wholesale-based Internet Service Providers is asking the regulator to reassess its July decision on access to in-building wire (IBW) in multi-dwelling units (MDUs). In the application filed Monday, CNOC argues that the decision made multiple errors in law by failing to adequately incorporate an analysis of the public good into its summer decision that declined to mandate access to incumbent fibre IBW seeking to use incumbent IBW will have to reach a commercial agreement with incumbents to do so. Much of CNOC's disagreement with the CRTC's reading is grounded in short passage, in which the CRTC wrote that "the public good policy consideration does not apply to access to fibre IBW because such access does not have a strong connection to social or consumer welfare, public safety, or public convenience." "In addition, the Commission does not consider that competition and consumer choice qualify as public good considerations," the regulator concluded in July. This reasoning, CNOC argues in its Monday filing, constitutes an error in law. "Based on this extremely cursory analysis, the Commission decided that the public good policy consideration did not apply to mandated wholesale access to fibre IBW. The reasons provided by the Commission are so brief and cursory that they fail to meet the standard established by the Supreme Court of Canada that reasons must be justified, intelligible, and transparent," CNOC wrote, citing a December 2019 Supreme Court case which established a new standard of judicial review, known as Vavilov. Specifically, CNOC points to a paragraph in the Vavilov decision which states that "reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it." The CRTC failed to do so, CNOC argues in the review and vary application, writing that the CRTC decision's "analysis of the public good policy consideration is so cursory that it is impossible for any reader of the reasons to understand the Commission’s reasoning and where in that process the Commission went wrong and reached erroneous conclusions." In its decision, CNOC also argued that wholesale access to IBW should be mandated based on public convenience, and that the regulator made a similar error in fact and law when it dismissed "out of hand" the "significant benefits to public convenience that would accrue from mandated wholesale access to fibre IBW." There "is no valid policy reason to compel TSPs to resort to an adversarial regulatory process that will unnecessarily tie up the resources of TSPs, the Commission, and MDU owners, and most likely result in poisoned business relationships between TSPs and MDU owners, when the Commission could instead just mandate wholesale access to fibre IBW," CNOC argues. The CRTC's decision not to mandate wholesale access to IBW was one of a trio of decisions -- along with the May reversion on wholesale internet access rates and the April decision limiting mobile virtual network operator access -- of this year that have upset smaller wholesale-based providers and pleased incumbent telecoms in equal measure. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Tessie Sanci

CNOC files review and vary application on CRTC in-building wire access decision

News | October 26, 2021

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CNOC files review and vary application on CRTC in-building wire access decision

News | October 26, 2021

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