Bell appeals CRTC last mile fibre access decision, saying it will face irreparable harm

BCE Inc. is asking the Federal Court of Appeal for a stay on the CRTC’s interim decision mandating large incumbent telephone companies to provide wholesale access to their FTTP networks in Ontario and Quebec, emphasizing the potential irreparable harm and significant costs associated with the decision The CRTC mandated access to last-mile fibre last week — which only affects Telus Corp. and Bell — and gave six months to implement the changes. The CRTC noted that incumbent local exchange carriers (ILECs) have primarily focused on FTTP deployment, passing more than 10 million Canadian premises by the end of 2022. However, cable carriers have limited FTTP coverage, reaching around 625,000 Canadian premises. Interim rates for wholesale-based competitors were also established. The decision is a temporary measure to stabilize the market, particularly in regions where competition has declined significantly until the CRTC completes a broader review on establishing long-term wholesale access to FTTP networks nationwide. Bell had initially responded to the decision by announcing it planned to reduce its network investments by $1 billion in 2024-2025. Bell is seeking an immediate stay on the decision until the court rules on the case. Bell noted to the court that the decision singles it out, given the fact that Telus Corp. only reaches around 300,000 homes in a small region of Quebec. Establishing wholesale aggregated FTTP service, even on a temporary basis, is expected to result in significant unrecoverable costs, lost revenue, and customer attrition for Bell. Its motion for a stay rests on the assertion that the proposed appeal raises substantial legal and jurisdictional issues, warranting a comprehensive review by the court. The first contention is that the CRTC failed to apply the RJR test, a standard practice for assessing interim relief applications. Despite over a quarter of a century of consistently following this approach, the notice of consultation in the CRTC’s proceeding stated that the issue of temporary FTTP facilities access is “not in the nature of injunctive relief” and would not be evaluated using the RJR test. Bell argues that this departure from established practice constitutes a significant legal error and claims a breach of procedural fairness. The CRTC allegedly failed to provide stakeholders with notice of the test it would apply in arriving at the decision. This lack of transparency, according to Bell, left parties in the dark about the criteria they needed to address in their submissions. Bell also takes issue with Section 10 of the 2023 Policy Direction, which states that the CRTC “must mandate the provision of an aggregated wholesale high-speed access service…” Bell contends that the Telecommunications Act does not authorize the imposition of a mandatory policy on the CRTC and renders the CRTC’s decision invalid as a matter of law. Bell emphasized the competitive advantage its FTTP services hold in the retail market for internet services and said the decision threatens to erode this advantage, leading to the loss of existing and potential customers and associated revenue. Implementing temporary aggregated wholesale FTTP access, as mandated by the decision, will require Bell to incur substantial upfront costs, estimated in the tens of millions of dollars. In the event of a successful appeal, these costs would be unrecoverable. The decision would also force Bell to reallocate funding and resources from other ongoing projects. This reallocation, Bell claims, would cause irreparable delays or cancellations of these projects, incurring significant costs to Bell. Bell asserts that the combination of these irreparable harms renders its appeal meaningless without the intervention of a stay. -Reporting by Jenna Cocullo at jcocullo@thewirereport.ca

Bell appeals CRTC last mile fibre access decision, saying it will face irreparable harm

News | November 17, 2023

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Bell appeals CRTC last mile fibre access decision, saying it will face irreparable harm

News | November 17, 2023

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