TekSavvy files wholesale rates appeal

Just under two months after it was granted leave by the Federal Court of Appeal, TekSavvy Solutions Inc. has filed its challenge to the CRTC's May reversal of a 2019 decision that dramatically slashed the rates wholesale-based competitors pay to incumbent telecom companies for access to their infrastructure. In a Monday filing with the court, Teksavvy appealed the decision on three grounds. First, the wholesale-based internet service provider (ISP) argued the CRTC made an error in law and breached its own decision in 2016 when it declined to determine final wholesale rates "on the basis of a full review and assessment of costing inputs and costing methodologies." "Not doing so is a breach of procedural fairness," TekSavvy wrote in the appeal. Second, TekSavvy argued that the regulator failed to meet its obligations under section 27(5) of the Telecommunications Act, which reads:"In determining whether a rate is just and reasonable, the Commission may adopt any method or technique that it considers appropriate, whether based on a carrier’s return on its rate base or otherwise." "The CRTC’s approach was to revert to largely untested 2016 interim rates rather than to conduct a comprehensive review of the rate evidence already before it using a method or technique," TekSavvy argued. "Reverting to the untested rates which the CRTC itself had determined were flawed, and that existed prior to fully examining the evidence on the R&V proceeding, is not a “method or technique.” Third, TekSavvy points to the conduct of CRTC chair Ian Scott, specifically to a Dec. 2019 meeting Scott had with then-chief financial officer and current CEO of BCE Inc., Mirko Bibic, at an Ottawa bar. "Chairperson Scott’s ex parte meeting with Bell at a bar, i.e. a non-professional setting, with no other CRTC staff in attendance, took place one week after Bell filed its review and vary application with the CRTC that was ultimately disposed of by the Decision that is the subject of this Appeal," TekSavvy wrote. The company also pointed to a remark Scott made in an interview hosted by the Canadian Club Toronto, in which the CRTC chair stated a "personal preference" for "facilities-based competition." "Impartiality but, in addition, the appearance of impartiality are essential to procedural fairness. Failing to maintain such an appearance raises a reasonable apprehension of bias, which is a breach of procedural fairness," Teksavvy wrote in the appeal. TekSavvy is asking the court to set aside the May decision, and to reinstate the 2019 decision -- with its dramatically lower rates. Failing that, TekSavvy is asking the court to send the decision back to the CRTC for a "fulsome determination" of the rates. The appeal now joins a trio of petitions to cabinet requesting that the Federal Government overturn the CRTC’s decision, as Prime Minister Justin Trudeau had declined on the campaign trail to say whether or not his government will overturn the decision at the heart of the new appeal. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

TekSavvy files wholesale rates appeal

News | November 9, 2021

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TekSavvy files wholesale rates appeal

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