Bell appeal case against CRTC fibre access decision underway

BCE Inc.’s appeal against the CRTC’s November decision to require the company to allow competitors wholesale aggregated access to its fibre network is underway in the Federal Court. The telecom’s official notice of appeal was filed April 8. Bell claims that the regulator’s interim decision, which came during its ongoing review of the wholesale high-speed access (HSA) framework, was procedurally unfair and based on a policy direction that exceeds the government’s legal authority. The telecom kept up its scrutiny of 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 argued that this provision is an overreach by the Governor in Council because it does not meet the Telecommunications Act’s requirement that directions for the CRTC must be of “general application on broad policy matters.” “The Governor in Council can review CRTC decisions but… the act does not permit the Governor in Council to regulate directly at first instance. Yet, that is precisely what the Governor in Council did here,” claimed Bell, arguing that because the direction itself is unlawful, the CRTC’s resulting decision “cannot stand as a matter of law.” Bell also maintained its argument that the CRTC should have applied the RJR test, a standard practice for assessing interim relief applications. While the CRTC said in its decision that the issue of temporary fibre-to-the-premises (FTTP) facilities access is “not in the nature of injunctive relief” and would not be evaluated using the RJR test. Bell argued otherwise, stating the decision has “all the hallmarks of a mandatory interim injunction” and therefore the RJR test should have been applied. “An order that requires a party to take steps and incur significant costs pending the outcome of a proceeding is the very definition of interlocutory injunctive relief,” said Bell. “The fact that the mandatory, interlocutory order in the decision engages policy considerations cannot be a reason for departing from the RJR framework.” By not applying the RJR test, the CRTC breached its duty of procedural fairness, added the telecom. “Bell had a right to know the test the CRTC would apply in deciding whether to mandate temporary aggregated wholesale FTTP services on an interim basis,” the company said. This lack of transparency, according to Bell, left parties in the dark about the criteria they needed to address in their submissions to the CRTC’s proceeding on the matter. In February, while agreeing to hear the appeal, the court dismissed Bell’s motion for a stay against the CRTC’s decision, stating that the company failed to demonstrate it would suffer irreparable harm. “Bell’s own choices to redirect or cut its investment dollars do not constitute irreparable harm, but rather a business choice that it appears that it has chosen to make in light of the decision,” wrote Justice Mary Gleason in the dismissal. “In the absence of evidence showing how implementing the temporary mandated access would imperil Bell’s continued existence, I fail to see how making the investments required to implement the decision instead of others could constitute irreparable harm,” Gleason explained. — Reporting by Phalen Tynes-MacDonald at pcreed@thewirereport.ca

Bell appeal case against CRTC fibre access decision underway

Court | April 19, 2024

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Bell appeal case against CRTC fibre access decision underway

Court | April 19, 2024

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