Telecom Commission Letter Addressed to Various Parties
Ottawa, 17 May 2018
Our reference: 8622-F40-201802372
Mr. Christopher Copeland
320 March Road, Suite 604
Kanata, Ontario K2K 2E3
Ms. Natalie MacDonald
Vice-President, Regulatory Matters
6080 Young Street, 8th Floor
Halifax, Nova Scotia B3K 5L2
Re: Interim Relief in the Part 1 application by Frontier Networks Inc. against Eastlink relating to the resell of Third Party Internet Access - Commission Decision
On 16 April 2018, Frontier Networks Inc. (Frontier) filed a Part 1 application requesting expedited interim relief and final relief regarding the refusal of Bragg Communications Incorporated, carrying on business as Eastlink (Eastlink), to allow Frontier to continue to resell third-party Internet access (TPIA) services to its two reseller customers. Frontier claims that pursuant to Section 1.4 of Eastlink’s TPIA General Tariff CRTC 21171 (TPIA Tariff), such resale is permitted, while Eastlink argues that its TPIA Tariff entitles Frontier to resell Internet services to retail end-users only, and not to reseller customers.
In response to the current dispute, Eastlink is refusing to process any orders from Frontier to activate new customers until this dispute with Frontier is resolved. In light of Eastlink’s actions, Frontier’s application for interim relief seeks to have the Commission order Eastlink, on an interim basis, to cease the stop order on Frontier TPIA service activations until the Commission issues its determinations relating to the final relief sought by Frontier in the above-referenced Part 1 application.
In its response to Frontier’s application for interim relief, Eastlink submitted that the Commission is required to adopt the test recently enunciated by the Supreme Court of Canada in R. v. Canadian Broadcasting Corporation,Footnote1 instead of the test set out in RJR-MacDonald Footnote2 (the RJR-MacDonald Test).
The choice of test to use for determining whether to grant interim relief is solely within the Commission’s discretion. Accordingly, given that nothing on the record of this application provided any justification for changing the Commission’s use of the RJR-MacDonald Test, the Commission will apply the criteria set out in that test to reach its determination, namely: a) there is a serious issue to be determined; b) the party seeking relief will suffer irreparable harm if the interim relief is not granted; and c) the balance of convenience, taking into account the public interest, favours retaining the status quo until the Commission has disposed of the issues.
- A serious issue to be determined
It is reasonable to suggest that the wording of Section 1.4 of Eastlink’s TPIA Tariff (“The Customer may resell or share TPIA Service, in accordance with the terms of this Tariff.”) could ultimately be interpreted by the Commission, when addressing the final relief, in a way that would allow Frontier to resell TPIA services to its reseller customers.
- Irreparable harm if the relief is not granted
End-users are likely to associate with Frontier and its two reseller customers the prolonged installation delays and delayed access to competitive high-speed Internet services resulting from Eastlink’s stop orders, which will likely result in harm to the reputation of both Frontier and its two resellers. This reputational harm cannot be cured by pecuniary damages, and the nature of this harm is precisely what interim relief is intended to prevent.
- The balance of convenience favours interim relief
The Commission has concerns that allowing Eastlink to cease activating new orders from Frontier for potentially several months until the Commission renders its final decision on the Part 1 application could encourage other incumbents to interpret their obligations pursuant to their high-speed access service tariffs in a way that would cause harm to other TPIA customers similar to those described above, pending the Commission’s decision on the proper interpretation.
In light of the above, the Commission finds that Frontier has met the criteria established in RJR-MacDonald and directs Eastlink to immediately continue to process Frontier’s TPIA service activations, including those activations that have been put on hold since April 2018, until the Commission issues its final determinations on Frontier’s Part 1 application.
Furthermore, while the Commission expects that Eastlink will not disconnect TPIA services until the Commission issues its final decision on Frontier’s Part 1 application, as agreed to by Eastlink in its submissions to the interim relief, it also expects that Eastlink will continue to provide all applicable TPIA services to Frontier, which may include, but are not necessarily limited to, trouble ticket resolution, modem testing, and service changes, including modem swaps and speed changes.
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