Rogers asks CRTC to dismiss discrimination claims from Telus in TTC dispute

As the Toronto subway network access dispute continues, Rogers Communications Inc. says Telus Corp.’s undue preference allegations against it are baseless and hypocritical, according to filings made to the CRTC last Friday. Rogers urged the regulator to dismiss Telus’ claims of undue preference and unjust discrimination, arguing Telus’ intervention goes against the rules of procedure, are beyond the CRTC’s authority, unfounded, and self-serving. Meanwhile, the Public Interest Advocacy Centre (PIAC) supports the claims, calling Rogers a gatekeeper in an unreasonable and anti-competitive position. Telus’ intervention was in response to BCE Inc.’s Part 1 application asking the CRTC to prohibit Rogers from providing wireless services to its customers on the Toronto Transit Commission’s (TTC) subway until it enables access for all carriers. It argued Rogers is “seeking to deny or delay access for as long as possible for the majority of Canadians who have chosen another wireless carrier.” In an earlier response to the June application, Rogers said it invited carriers, including Bell, Telus, and Quebecor Inc., to negotiate and has proposed access terms and a licensing model. The TTC contract states Rogers should have negotiations with other carriers finalized within 18 months from when it makes its own services available, which started last week. Rogers sought to defend this recent launch of wireless services for its commuting customers, claiming a disconnect between the remedy Telus wants from the CRTC and its argument of undue preference. If undue preference and a breach of licence were true, Telus should be seeking new timelines for agreement on access terms and enforcement of the conditions of licence (CoLs) by the Innovation Minister, said Rogers. “Rather, Telus seeks an unprecedented wholesale access remedy,” it wrote. Which, now that its services have been rolled out, would pull them away from customers and, according to Rogers, is not in the public interest. “Expanded wireless access for riders is long overdue after many years of limited connectivity in the TTC,” stated PIAC in its comments, commending Rogers for working to upgrade and expand coverage in the subway system. “However, it is clearly discriminatory for Rogers to use its contractual privilege to favour its own retail service and to delay competitors’ ability to onboard their subscribers for up to 18 months.” PIAC said the company’s commercial interest is not an excuse to discriminate, accusing Rogers of “trumpeting the TTC access in press releases in an effort to convince Torontonians to switch to Rogers.” Rogers argued in its comments that because Bell’s application made no mention of Rogers violating section 27(2) of the Telecommunications Act, Telus’ claims that it did are procedurally unfair and “not properly before the commission.” The company also stated that the CoLs Telus accuses it to be in violation of, are spectrum licences granted by the Department of Innovation, Science and Economic Development (ISED), and are outside the CRTC’s jurisdiction. “A finding of breach of a CoL is not only outside the commission’s authority, it is also unnecessary,” argued Rogers, noting that ISED has already launched consultations regarding TTC network access. Rogers questioned the Vancouver-based company’s sudden interest in the issue, describing its claims that Rogers has failed to negotiate timely access as “tactical and convenient.” “While now touting the importance of connectivity and public safety, Telus has sat idly for over 10 years,” wrote Rogers, referring to BAI Communications’ tenure as the previous TTC contract-holder. “It is only now… after Rogers announced its acquisition of the Canadian operations of BAI in April of this year - that Telus has showed any meaningful interest in accessing the TTC network.” Rogers doubled down, saying it is hypocritical of Telus to say the TTC negotiations have not been timely, in light of their almost two-year long pole dispute. “There is a long history of Rogers and other carriers facing significant stone-walling by Telus in obtaining access to its infrastructure,” it wrote, arguing that Telus’ claims have no credibility since they are coming in only a few months after Rogers acquired the TTC infrastructure. PIAC urged the CRTC to “order Rogers to provide other carriers access by a certain date, or order Rogers to cease providing or expanding service until all riders can have wireless connectivity.” Not only is the “1.5 years of virtually sole control and access” unreasonable, wrote PIAC, but there is also nothing requiring Rogers to enable competitors to launch retail wireless access within that time. “Rogers has granted itself broad discretion” when it comes to that 18 month timeline, explained PIAC, backing up Bell’s argument in its application. The relaxed language of the TTC agreement, “seems to only imply an expectation” for negotiations within that time, which leaves room for Rogers to apply the terms however it sees fit. PIAC went on to suggest ways in which the CRTC could remedy the situation. Using previous decisions as examples of precedent, it reminded the regulator of its policy directions and the powers it has. The advocacy group compared Rogers to a multiple dwelling unit (MDU) building owner, backing up Telus’ argument that this case holds similarities to the commission’s MDU framework, which prohibits conduct like Rogers’. PIAC also reiterated its suggestion that the CRTC use its powers under sections 40 and 42 of the act to order interconnection between carriers. “The bases on which the commission granted interconnection orders are no different for interconnection of carriers in the TTC,” it wrote, outlining cases in which the regulator and even its precursor, the Board of Railway Commissioners, intervened when providers selectively limited interconnection. Interconnection to other carriers should be done immediately, then negotiations can follow, concluded PIAC. As these filings stem from Bell’s Part 1 application, it has the opportunity to respond by Thursday. – Reporting by Phalen Tynes-MacDonald at pcreed@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

Rogers asks CRTC to dismiss discrimination claims from Telus in TTC dispute

News | August 30, 2023

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Rogers asks CRTC to dismiss discrimination claims from Telus in TTC dispute

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