Scott should recuse himself from MDU in-building access review and vary: TekSavvy

An Ontario-based independent service provider argued to the CRTC that chair Ian Scott “is in violation of the commission’s own internal standards of conduct” and should recuse himself from a review and vary application on a decision -- which states that firms must negotiate with BCE Inc. for multi-dwelling unit (MDU) fibre -- because he has a “clear personal preference” for facilities-based competition and due to his 2019 meeting with Bell CEO (then chief operating officer) Mirko Bibic. TekSavvy Solutions Inc. made the comments in its intervention to the Competitive Network Operators of Canada (CNOC)’s review and vary application to the July decision. CNOC filed its review and vary application in October, arguing that the CRTC’s determination that access to in-building wire (IBW) is not a matter of public good was an error in law. “TekSavvy requests that CRTC Chairperson Ian Scott recuse himself or otherwise be excluded from the decision-making process in this proceeding due to the reasonable apprehension of bias created by his own stated personal preference for ‘reliance on facilities-based competition’ and his demonstrated conduct of holding private ex parte meetings with parties with an interest in open proceedings,” the Chatham-Kent, Ont., company wrote in its Nov. 26 intervention. TekSavvy also argued that comments Scott made in May 2021, when asked about wholesale rates and wholesale-based service providers at a Canadian Club of Toronto appearance, indicated a “clear personal preference” for facilities-based competition. “The chair’s response went beyond the issue of wholesale rates or service-based competition,” TekSavvy argued. “In the context of this application, therefore, the chair’s response indicates a clear personal preference for a framework that will result in companies building more facilities, regardless of whether that is economically efficient, advances the public interest, or further solidifies the already dominant market power of Canada’s telecom oligopoly to the detriment of consumers.” The CRTC’s initial proceeding was initiated following a long dispute initiated in 2018 between Cloudwifi Inc. and Bell in which the former requested the CRTC order Bell to give it access to its fibre connections. The CRTC, in June 2019, ruled it would extend the rights request by CloudWifi to the small ISPs, which don’t have to be a competitive local exchange carrier (CLEC, or home phone company) or an exempt broadcast distribution undertaking (BDU, or TV company), provided they pay a “reasonable fee.” At the time, it initiated a consultation proceeding to determine if MDU access should be extended to all carrier ISPs, and potentially to all telecommunications service providers (TSPs), and whether they should all have access to LECs and other service providers’ IBW in MDUs on the same basis as registered competitive LECs regardless of technology. In December 2019, after Bell filed a review and vary application, the CRTC upheld its June decision while initiating a new tariff proceeding on ISP access to incumbent MDU infrastructure and amending its previous consultation to include an exploration of what would constitute a fair price for access to the newer — and more complicated — fibre infrastructure in MDUs. Around that time, Scott met with Bibic in an Ottawa bar shortly after the company also filed an appeal of the commission’s 2019 wholesale rates. Following the July 2021 decision, CNOC executive director Geoff White told the Wire Report that the government needs to revisit Canadian telecommunications policy as the CRTC’s recent decisions are “out of line with the Telecom Act” and Scott’s 2019 bar meeting with Bibic raises the issue of regulatory capture as a number of its senior staff come from big telecom. Andy Kaplan-Myrth, VP Regulatory & Carrier Affairs also said at the time that the CRTC’s decision “underscores the urgency of TekSavvy’s recent petition to cabinet seeking Ian Scott’s removal as CRTC Chair for his apparent bias against consumers and competition.” In its July 2021 decision, the commission said it ruled against mandating access to fibre IBW in MDUs on the basis that wire inside apartment buildings can easily be duplicated and that there is sufficient competition in the market. “The commission erred in fact by ignoring the positive impact of mandated wholesale access to fibre IBW on the accelerated deployment of competing fibre networks in Canada, and instead just focusing on whether the networks would be deployed at all without consideration of timeliness of deployment,” CNOC wrote in its October review and vary. CloudWifi and Quebecor Inc. supported CNOC in their November interventions to the review and vary, with the former arguing that Canadians pay “far too much” for broadband services, and the commission's initial decision “will mean that Canadians in MDUs will have to wait years or even decades longer to gain relief from the high prices that they are paying.” “For the reasons stated by CNOC, granting the relief requested by CNOC will provide a huge benefit to Canadian consumers without reducing the investment in fibre IBW,” CloudWifi wrote. “Forcing the reproducibility of fiber optic building cabling in MDUs would cause many inconveniences for residents. This is the main reason why building owners are reluctant to allow multiple fiber optic building cabling to be installed in a single MDU,” Quebecor also wrote in its intervention according to a translation. It added that it agreed with CNOC’s request to impose a fixed monthly rate as a way to charge for sharing of fiber optic in-building cabling. Bell on the other hand, told the CRTC in its November intervention to the review and vary that CNOC’s arguments -- that “the commission failed to appreciate the inconvenience to MDU residents and owners of post-construction installation of fibre IBW and that the related inconvenience and delays of MDU access disputes before the commission could be avoided by mandating fibre” -- were over exaggerated. Meanwhile, Rogers Communications Canada Inc. and Bragg Communications Inc.’s Eastlink told the CRTC that CNOC's application does not follow the CRTC process -- because the organization did not participate in the initial proceeding -- and that the original decision was fair because fibre IBW is not a public good. The latter argument was also echoed in Bell’s, Telus Corp.’s, and Saskatchewan Telecommunications Holding Corp.’s interventions. The Public Interest Advocacy Centre (PIAC) told the CRTC in its review and vary intervention that it also did not participate “vigorously” in the proceeding because, it argued, there was no “proper, fair, transparent notice” that the commission would radically change its MDU access rules. “We do not know how many other potential voices were silenced by the commission’s obscurity about what was going on in NoC 2021-420 (notice on consultation) and the potential outcome,” PIAC wrote. -- Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

Scott should recuse himself from MDU in-building access review and vary: TekSavvy

News | November 29, 2021

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Scott should recuse himself from MDU in-building access review and vary: TekSavvy

News | November 29, 2021

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