SaskTel seeks judicial review, appeal of CRTC wholesale fibre decision

Saskatchewan Telecommunications Holding Corp. is challenging the CRTC’s recent decision ordering it to provide competitors with wholesale access to its fibre networks. On Thursday, the crown corporation requested from the Federal Court of Appeal both a judicial review, alleging that the new policy is unreasonable; and leave to appeal, alleging it is based on an unlawful policy direction. The CRTC’s decision, issued last month, requires SaskTel, Telus Corp., BCE Inc.’s Bell Canada, Bell Aliant, and Bell MTS to provide competitors wholesale access to their existing fibre networks by Feb. 13, 2025. SaskTel’s request for leave to appeal echoes previous arguments made by Bell last November after the commission issued an interim decision requiring it to temporarily provide access to its fibre networks in Ontario and Quebec, and takes aim at the government’s 2023 Policy Direction for the CRTC. The telco alleges that section 10 of the direction – which states, “the commission must mandate the provision of an aggregated wholesale high-speed access service” – falls outside the jurisdiction of the Governor in Council because it is not a direction “on broad policy matters,” as section 8 of the Telecommunications Act requires. Through the Governor in Council, the federal cabinet outlines its policy goals for the CRTC, which the commission is required to implement. SaskTel alleges that the CRTC’s decision relied on a direction the Governor in Council had “no jurisdiction” and “no lawful power” to make. “This is an error of law,” the telecom argued. The CRTC, despite holding a series of consultations on the issue, came to a decision that was effectively “already made” by the government through its unlawful Policy Direction, alleged SaskTel, arguing that the outcome was predetermined and procedurally unfair. The CRTC acknowledged in its decision that “some sections” of the 2023 Policy Direction are being challenged in court, but asserted that its determinations “are consistent with the remaining relevant sections and would stand regardless of the contested sections…” SaskTel disagrees. “This cannot be correct. The cabinet direction is the origin of the consultation process,” it argued in its court filing. “A consultation process, if conducted by the CRTC in the knowledge that the decision to require wholesale to SaskTel’s network was foreordained, is fundamentally flawed and is a procedural unfairness constituting an error of law.” In addition to its request for leave to appeal, SaskTel argues in its application for judicial review that the new policy fails to consider its unique position as a publicly-owned telecom provider confined to Saskatchewan and instead gives it the same treatment as large, private telcos. The decision “omits consideration” of SaskTel’s mandate to “provide coverage to all regions of Saskatchewan, including in rural and Indigenous communications, in an economically sustainable fashion,” the company wrote. “This is materially different from the other ILECs and large carriers whose mandate is to provide the maximum return possible to shareholders.” SaskTel highlighted its market reach being confined to Saskatchewan, meaning it does not have access to high-density urban markets that companies like Bell, Telus, and certain cable carriers do. The company voiced concerns that being forced to share its fibre network with these “much larger and better resourced” telecom providers could “impact the availability or expansion of connectivity” in the province. “The decision makes no distinction between the time required for SaskTel to reasonably recover its investments and those of other carriers with entirely different geographies, demographics, and business models. It is therefore inequitable,” the company alleged. SaskTel acknowledged the five-year “head start” that will exempt new fibre builds from the wholesale regime until 2029, but argued that the CRTC’s assertion that this timeline would allow companies to recoup the costs of their investment is “unreasonable.” “No evidence presented in the consultation process supports this conclusion,” wrote SaskTel, explaining that its fibre initiatives require a “proportionately longer period of time.” – Reporting by Phalen Tynes-MacDonald at pcreed@thewirereport.ca

SaskTel seeks judicial review, appeal of CRTC wholesale fibre decision

Court | 09/13/2024 5:48 pm EDT

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