Photo by Jim Wilson on Unsplash
In a previous post three weeks ago, I noted that the Governor in Council had directed the Canadian Radio-television and Telecommunications Commission (CRTC) to reconsider the impact that permitting Bell, Rogers and Telus to resell each others' fibre to the premises (FTTP) facilities over aggregated wholesale high-speed access services (HSAs) in Ontario and Quebec would have.
Last Thursday the CRTC, in response to that direction from the Governor in Council, issued a notice of consultation that takes a rather narrow interpretation of what in fact it was asked to reconsider by the Governor in Council. It would appear from reading Telecom Notice of Consultation CRTC 2024-292, that the CRTC believes that the whole issue raised by the Governor in Council is a simple misunderstanding. The CRTC argues that the "temporary access" it ordered in Telecom Decision CRTC 2023-358, which permitted the largest ISPs to resell Bell's and to a much smaller degree Telus' fibre in Ontario and Quebec, and which decision was the subject of a Petition to the Governor in Council by Bell Canada, was superseded by the CRTC's final decision in Telecom Regulatory Policy CRTC 2024-180. In that decision, the CRTC expanded the wholesale access requirement to all of Canada but prohibited any of the largest ISPs from using the relevant high-speed access service tariffs of a competitor within their respective traditional incumbent serving territories.
As such the CRTC leaves one thinking the Governor in Council is confused and all of this is a silly mistake. In inviting comment on the reconsideration, the CRTC asks commenters "to comment on whether changing the Temporary Decision would advance the public interest"? Given the view that the "temporary decision" has been superseded by the "final decision", the CRTC seems to foreshadow that the answer to that question is no making the whole issue moot. But is that really what the Governor in Council is concerned about?
Some of the issue, or at least the CRTC's apparent confusion, is that nowhere in the Notice of Consultation does the CRTC refer to the Governor in Council's reasons for directing the reconsideration in the first place. As I wrote on November 6th, the Governor in Council provided the reasons for the CRTC to reconsider which are maintaining the incentives for the large incumbent ISPs to continue investing in Internet infrastructure, particularly in rural, remote and Indigenous communities and on the the viability of small and regional Internet service providers. The Governor in Council's immediate concern is not whether the largest ISPs are permitted to wholesale their incumbent competitors' fibre facilities in or out of territory; the Governor in Council's concern is that incumbents be permitted to resell each others' fibre access services at all using aggregated HSA. The Governor in Council seems to recognize that enabling incumbent resale of each others' HSA is likely to not only endanger the viability of small and regional ISPs but also further curtail incumbent ISPS investment.
By minimizing these impacts and in fact, eliminating them from consideration in the notice of consultation, the CRTC is executing a legalistic sleight of hand to cast the issue as one that was superseded by the final decision. The CRTC is attempting to suggest that the Governor in Council's concerns are addressed in full by permitting the incumbent wholesale of other major incumbent carrier HSA only in areas beyond the reseller incumbent's serving territory. The problem with that logic is that, to the contrary, the Governor in Council's concerns are not addressed at all by Telecom Regulatory Policy CRTC 2024-180. The issue that the Governor in Council has is that by permitting incumbent resale of aggregate HSA at all, the CRTC is disincentivizing not only investment by the mandated incumbent but is also actively serving to worsen the viability of small and regional Internet service providers.
It is safe to say that the Governor in Council was aware of Telecom Regulatory Policy CRTC 2024-180 when Order Referring Telecom Decision CRTC 2023-358 Back to the CRTC was issued on November 5th, given that Telecom Regulatory Policy CRTC 2024-180 was issued nearly two months prior. Rather than stubbornly insisting on the appropriateness of TRP 2024-180 as it has done in seeking comment on the Reconsideration, the CRTC would be better serving all stakeholders by acknowledging that it's blunt instrument steps at ostensibly increasing consumer welfare may very well end up hurting it. If the CRTC had read the Governor in Council's concerns in their entirety rather than selectively, it wouldn't find itself in yet another issue with its wholesale regime.
The answer is to clarify that the large incumbents are not eligible for access to aggregated wholesale HSA.
Comments