CRTC rejects CNOC in-building wire review and vary

The CRTC Friday rejected a review and vary appeal from the Competitive Network Operators of Canada, which had argued that the CRTC erred when it declined to mandate access to incumbent fibre in-building wires (IBW) in multi-dwelling units (MDUs) for ISPs seeking to offer services. Under the decision, companies seeking to offer services in previously-connected MDUs will have to negotiate for access to IBW with incumbent telecom companies, or will have to lay their own wires. In an October 2021 review and vary application, CNOC argued that the decision made multiple errors in law by failing to adequately incorporate an analysis of the public good into commission analysis. On Friday, the CRTC rejected CNOC's argument, and said that the regulator declined to mandate IBW access on the basis of the essentiality test, which determines whether access to a given service is essential to competition. Certain policy considerations are applied alongside the essentiality test in commission determinations, and one such consideration is the "public good," though not in the way CNOC defined it, the CRTC wrote in Friday's decision. "In this context, the term is used in a specific, technical sense to refer to considerations of social welfare, public safety, and public convenience. It does not refer to the broader public interest, which the Commission evaluates holistically," the CRTC wrote. "Nor is it intended to include matters relating to competition, given that those types of economic considerations are already well covered under the Essentiality Test, specifically under the competition component." The CRTC added that there are only three services that the commission has classified as public goods within the CRTC's framework: emergency services, message relay services for people with disabilities, and support structure services like pole access. "CNOC did not show that the commission’s reasons were legally deficient. Reasons must be read contextually and holistically. Context includes the record and related commission decisions. In this light, it becomes clear that fibre IBW is not comparable to other public good services," the CRTC wrote. CNOC had also argued that the CRTC erred when it decided that the mandating of IBW access would result in increased investment for competitor ISPs, because the costs of laying duplicate wiring could be invested in network deployment elsewhere. The CRTC wrote Friday that CNOC's "assertions about the potentially positive effects of a mandate on investment were vague and unsupported and significantly similar to arguments made by parties to the original proceeding. It did not explain why or how these assertions should displace the Commission’s conclusions." The commission also rejected CNOC's argument that it was an unfair burden to ask parties in the original proceeding to demonstrate evidence that the lack of an IBW mandate would have a substantial impact on the adoption of new technologies. "All parties were in the same situation of being asked to predict what might happen in the future should a particular policy framework be put in place. Parties to proceedings are often asked to do this, and the Commission does not consider it to be unreasonable to have to support one’s views with evidence, reasoned explanations, or educated assumptions," the CRTC wrote. The issue of whether or not to mandate access to IBW in MDUs for competitor ISPs stems back to a dispute between Cloudwifi Inc. and Bell in which the former requested the CRTC order Bell to give it access to its fibre connections. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

CRTC rejects CNOC in-building wire review and vary

News | February 3, 2023

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CRTC rejects CNOC in-building wire review and vary

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