Telecom - Secretary General Letter addressed to Distribution List
Ottawa, 3 May 2024
Our reference: 1011-NOC2023-0056
BY EMAIL
Distribution List
Subject: Procedural requests by Bell Canada, Bragg Communications Inc., Cogeco Communications Inc., Competitive Network Operators of Canada, and TekSavvy Solutions Inc. to limit incumbent use of aggregated wholesale high-speed access services over fibre-to-the-premises facilities
Dear Robert Malcolmson, Lee Bragg, Paul Beaudry, Paul Andersen, and Andy Kaplan-Myrth,
Thank you for your application filed on 28 March 2024 regarding aggregated wholesale access to fibre-to-the-premises (FTTP) networks.
Your application asks the Commission to expedite its decision on one of the key issues in its ongoing public proceeding initiated by Notice of Consultation 2023-56 (the “Proceeding”). In the alternative, you seek interim relief.
As you know, the record of the Proceeding includes comments from more than 300 intervenors. It also includes submissions made during a week-long public hearing in February. The Commission is working quickly through the public record to publish a final decision as soon as possible.
The issue you raise regarding who can use wholesale Internet services is central to the Proceeding. As you know, there are diverging views on this issue, both in the Proceeding and in response to your application.
Those supporting your application, including some independent Internet service providers (ISPs), argued that it would be difficult for independent ISPs to compete with large incumbents in the absence of the requested relief. Those opposing, including public interest groups, argued that consumers are likely to benefit from greater competition involving the large incumbents. They also take the position that granting your application would be inappropriate given the ongoing Proceeding.
The Commission considers that it is inappropriate to decide in isolation the single issue of who can use wholesale Internet services when it is so closely intertwined with other issues in the Proceeding.
In light of the above, and having considered the record, the Commission denies the request for an expedited determination. Furthermore, the Commission finds that the legal test for interim relief is not met. Reasons are set out in the Appendix to this letter.
The Commission reiterates its previous statement that the access established through the temporary mandate in Telecom Decision 2023-358 may differ from the final decision. Therefore, any provider that plans to use the temporary mandate should assess the risks of doing so.
The Commission remains committed to working expeditiously through the Proceeding, with a view to delivering a final decision by the end of this summer.
If you have any questions, please contact Philippe Kent, Director of Telecommunications Services Policy, at philippe.kent@crtc.gc.ca.
Yours sincerely,
Marc Morin
Secretary General
Attach (2) – Appendix and distribution list
Interim relief - Commission Analysis and Determinations
Test for interim relief
To assess applications for interim relief, the applicant generally must demonstrate that it meets the criteria for interim relief set out by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (Attorney General) [1994] 1 SCR 311 (RJR-MacDonald). The RJR-MacDonald test has three parts:
- there is a serious issue to be determined;
- the party seeking relief will suffer irreparable harm if the interim relief is not granted; and
- the balance of convenience, taking into account the public interest, favours granting the interim relief.
Is there a serious issue to be determined?
The applicant seeking interim relief is not required to demonstrate that their argument is persuasive or strong, but only that there is a legitimate question being asked. An application that is not clearly frivolous will generally meet the first part of the RJR-MacDonald test.
Commission’s analysis and determination
The procedural request filed on 28 March 2024 (the Application) raises a serious question to be determined. The question of which companies may access an aggregated fibre-to-the-premises (FTTP) wholesale service, should one be mandated, is a central issue in the ongoing public proceeding to improve Internet services competition in Canada (the Proceeding).
Will Bell Canada, Bragg Communications Inc., Cogeco Communications Inc., Competitive Network Operators of Canada, and TekSavvy Solutions Inc. suffer irreparable harm if the interim relief is not granted?
Unlike the first part of the RJR-MacDonald test, the threshold to find irreparable harm is high. Irreparable harm goes to the nature of the harm and not its magnitude. It also consists of harm that cannot be remedied at a later time (e.g., through the final decision). To satisfy this part of the RJR-MacDonald test, an applicant must provide evidence sufficient to demonstrate the probability of irreparable harm occurring.
Commission’s analysis and determination
In the context of this Proceeding, the Federal Court of Appeal (FCA) recently dismissed a request for a stay of the Commission’s temporary and expedited decision (Telecom Decision 2023-358) on the basis that the applicant, Bell Canada, had failed to demonstrate irreparable harm.Footnote1 The Court emphasized that it is not enough to simply say that irreparable harm may occur -- applicants must provide evidence to support these claims.
In the Application, like in the request before the Court, Bell Canada, Bragg Communications Inc., Cogeco Communications Inc., Competitive Network Operators of Canada (CNOC), and TekSavvy Solutions Inc. (the Applicants) have failed to provide sufficient evidence of irreparable harm. The Applicants refer to statements that granting Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc., and their affiliates mandated access to FTTP over aggregated highspeed access would threaten the viability of independent Internet service providers. However, they do not offer sufficient evidence to support these statements.
Does the balance of convenience favour granting the interim relief?
The third part of the test asks whether the public interest outweighs any irreparable harm. There is a presumption it is better to let a tribunal’s decision stand even if some harm might occur.
Commission’s analysis and determination
Implementation of the temporary mandate set out in Telecom Decision 2023-358 will result in increased competitive choice for Canadians. This benefit to the public outweighs any potential harm identified by the Applicants that could result during the short timeframe until the Commission makes its final decision.
Distribution List
Bell Canada, bell.regulatory@bell.ca;
CNOC, regulatory@cnoc.ca;
Cogeco, telecom.regulatory@cogeco.com;
Eastlink, regulatory.matters@corp.eastlink.ca;
RCCI, regulatory@rci.rogers.com;
SaskTel, document.control@sasktel.com;
Shaw, Regulatory@sjrb.ca;
TCI, regulatory.affairs@telus.com;
TekSavvy, regulatory@teksavvy.ca;
Videotron, regaffairs@quebecor.com;
Xplore, cindy.wallace@xplore.ca;
Airnet Wireless Inc., jeptha@airnet.ca;
Allo Telecom, sac@allotelecom.ca;
Ampush, julian.reiche@gmail.com;
André’s Electronics, andre@andres1.com;
Beanfield, todd@beanfield.com;
Bravo Telecom, legal@bravotelecom.com;
British Columbia Broadband Association (BCBA), regulatory@bcba.ca;
Build Nova Scotia, david.finlayson@novascotia.ca;
Canadian Anti-Monopoly Project (CAMP), keldon@antimonopoly.ca;
Canadian Telecommunications Association, esmith@canadatelecoms.ca;
Carry Telecom, frankw@carrytel.ca;
CEDEC, john.buck@cedec.ca;
CIK Telecom Inc, jordan.d@ciktel.com;
Cinéma Péninsule Ltd, 397martin@gmail.com;
City Wide Communications, david@yourcitywide.com;
Coextro, skhandor@coextro.com;
Community Fibre Company, ben@communityfibre.ca;
Competition Bureau, conor.parson@cb-bc.gc.ca;
Competition Bureau, crtc2023-56@cb-bc.gc.ca;
CPC, campbell@campbellpatterson.com;
Cronomagic Canada Inc, bokhari@cronomagic.com;
Custom Communications, kelly.boyd@custom.ab.ca;
Devtel Communications Inc., devin@devtelcommunications.ca;
Eeyou Communications Network, trishtoso@gmail.com;
Execulink, regulatory@execulinktelecom.ca ;
Fédération des Coopératives de Câblodistribution et de télécommunication du Québéc (FCCTQ), fallaire@ressources.coop;
Federation of Canadian Municipalities, rrizzuto@fcm.ca;
Fibernetics Corporation, regulatory@fibernetics.ca;
First Mile Connectivity Consortium, info@firstmile.ca;
Frontier Networks, cgooey@frontiernetworks.ca;
IGS Hawkesbury Inc., jbogue@hawkmail.ca;
Intelligence Papineau Inc, odenis@ipapineau.tech;
John Roman, johnphiliproman@gmail.com;
Leepfrog Telecom, gchriss@leepfrogtelecom.com;
Lime Telenet, Ryan@limetelenet.com;
Manitoba Coalition, cacmb@mts.net;
Manitoba Coalition, chkla@legalaid.mb.ca;
Manitoba Coalition, kadil@legalaid.mb.ca;
Marc Nanni, mn_crtc@proton.me;
Mazagan Telecom, mazagantelecom@gmail.com;
Michel Mersereau, m.mersereau@utoronto.ca;
National Capital FreeNet, execdir@ncf.ca;
Netrevolution inc., drouleau@gtvr.com;
OpenMedia, erin@openmedia.org;
Public Interest Advocacy Centre, jlawford@piac.ca;
Secure by Design, kirk@secure-by-design.com;
Securenet, info@securenet.net;
SkyChoice Communications, serge@skychoice.ca;
Spectrum Telecom Group Ltd., ghatton@spectrumtelecom.ca;
Tbaytel, stephen.scofich@tbaytel.com;
Transat Telecom, aboulil@transattelecom.ca;
Truespeed Internet Services Inc., adam@truespeed.ca;
Vaxination Informatique, jfmezei@vaxination.ca;
Vaxxine Computer Systems Inc., president@vaxxine.com;
WaveDirect Telecommunications Limited, regulatory@wavedirect.org
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