Telecom - Commission Letter adressed to the Distribution List
Ottawa, 8 December 2021
Our reference: 8740-S22-202104610, 8740-B38-202104628, 8740-B38-202104686, 8740-R28-202104636, 8740-T66-202104876, 8740-T66-202104884
RE: Procedural determination re Part 1 Application by Fibernetics Corporation requesting clarification on eligibility for wholesale MVNO access service pursuant to Telecom Regulatory Policy CRTC 2021-130
On 9 November 2021, the Commission received a Part 1 Application (the Application) from Fibernetics Corporation (Fibernetics) requesting a Commission determination that eligibility for facilities-based wholesale MVNO access services mandated under Telecom Regulatory Policy 2021-130 (TRP 2021-130) be expanded to the regional wireless carriers who have spectrum at the tier 4 or TEL level or higherFootnote1 in a given tier 4 or TEL area, including tier 4 and TEL areas where they have partial coverage or they have yet to enter. Fibernetics served its Application on all parties to the tariff proceedings for wholesale MVNO access and wholesale roaming services (see file numbers above).
Fibernetics characterized its Application not as a request to review, rescind, or vary TRP 2021-130, but as a request for the Commission to “consider a peripheral eligibility requirement that may have been overlooked” when issuing TRP 2021-130.
On 12 November 2021, Bell Mobility Inc. (Bell Mobility) submitted a response to the Application, in which it argued, among other things, that the Application is an improper Part 1 application that constitutes an application to review, rescind or vary TRP 2021-130. Bell Mobility argued that if the Commission treats it as a Part 1, the Application should be suspended until the tariff proceedings are concluded on the basis that the same issue is already being considered by the Commission in a parallel proceeding.
In the Commission’s view, Fibernetics’ application effectively asks the Commission to change its policy determination regarding one aspect of eligibility for wholesale MVNO access services set out in TRP 2021-130. The issue of TEL spectrum areas in relation to the eligibility criteria was not considered in the proceeding leading to the issuance of TRP 2021-130. The Commission notes that Fibernetics did not file an intervention in the proceeding leading to TRP 2021-130 when the Commission was considering all options regarding the eligibility for wholesale MVNO access service. Fibernetics’ application does not amount to a clarification, but instead raises new facts and proposes a new policy determination with respect to which regional carriers are eligible for the service and where. In this regard, the Commission notes that the issue of whether holders of TEL spectrum licences should be eligible for wholesale MVNO access has been raised by interveners in the tariff proceeding.
The Commission notes that the time set out in the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR/2010-277) (the Rules)Footnote2 in which to file an application to review, rescind, or vary TRP 2021-130 has elapsed and Fibernetics has not asked for an extension. Additionally, Fibernetics did not file an intervention in the tariff proceedings which also address the determinations in TRP 2021-130 and the timeline for filing interventions has elapsed. Similarly, Fibernetics has not asked for an extension to the intervention deadline.
However, seeing as how the same policy issue of TEL spectrum area eligibility has been raised in the context of the tariff proceedings, in these circumstances the Commission considers that it would be more efficient to address the common issue on its merits at once. It would be inefficient to run a concurrent and separate proceeding for Fibernetics’ Part 1 Application when the very same issue is under consideration in the open tariff proceedings.
The Rules authorize the Commission to, of its own initiative,Footnote3 combine proceedingsFootnote4 if the circumstances or considerations of fairness permit. Furthermore, the Rules allow the Commission to dispense with the set procedure for handling Part 1 Applications where considerations of public interest or fairness permit.Footnote5
Accordingly, the Commission is exercising its discretionary authority under the Rules to (i) dispense with the normal route for Part 1 Applications; and to (ii) combine the Application with the current tariff proceedings arising out of TRP 2021-130 and treat it as an intervention therein. The Commission will provide the tariff applicants with an opportunity to reply to the Application through requests for information issued at a later date.
Original signed by
Parties to the tariff proceedings
Additional parties copied by Fibernetics
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