BCE Inc.’s BCE-T Bell Canada is asking the Federal Court for leave to appeal a recent decision by Canada’s telecom regulator, saying the body committed an error of law and exceeded its jurisdiction when it ordered Bell to share access to its fibre network with competitors.
Bell is also seeking an interim stay of the decision pending the court’s ruling on the appeal request.
In legal documents filed in the Federal Court of Appeal, Bell said it would face “irreparable harm” and numerous unrecoverable costs if the order is not stayed and ultimately overturned.
On Nov. 6, the Canadian Radio-television and Telecommunications Commission ordered Bell and Telus Communications Inc. to offer wholesale internet service over its fibre networks in Ontario and Quebec on a temporary basis, within six months. The regulator will hold public hearings next February to decide whether it will make the measures permanent.
The CRTC also set interim rates for this access, calling these prices “workable” for smaller providers.
The CRTC said the decision reflects its effort to improve affordability and provide more internet options to consumers. At the time of its decision, it said it had found in a study that the number of subscribers served by independent wholesale-based competitors in Ontario and Quebec had dropped by 47 per cent between the end of 2018 and 2022.
After the Nov. 6 decision, Bell said it would reduce planned network investment by more than $1-billion in 2024-25, including a minimum of $500-million to $600-million next year.
In its Thursday filing, Bell says the CRTC committed an error of law by applying the wrong legal tests to arrive at its decision, and that it adopted a procedurally unfair process in failing to inform affected stakeholders of the test it did use.
Bell said it would be harmed through the loss of customers and revenues, the reallocation of funds from other more “economically beneficial” uses and through unrecoverable costs to implement the fibre services.
The company estimates it will be required to spend $4.7-million to build the required systems, and will need to spend $30-million for training and equipment, at least $14-million of which could be unrecoverable.
The CRTC declined to provide a comment as the matter is before the Federal Court of Appeal.
The motions for stay and leave to appeal list more than 20 responding parties, including the Competitive Network Operators of Canada, the representative body for independent ISPs.
“We are disappointed with what is clearly a delay tactic. Competitors continue to be irreparably harmed without access,” said Paul Andersen, CNOC’s president and chair, in a statement.
Since 2015, competitors have said the access prices have been far too high to enable them to offer service profitably.
Also named as responding parties in the filing are Telus, Rogers Communications Inc. and Quebecor Inc.
Telus only offers limited fibre access in Ontario and Quebec, with the majority of its network in Western Canada. The order did not apply to Rogers, which is a cable carrier.
Quebecor’s Videotron is among the companies that could benefit from access to Bell and Telus’s fiber networks. In a speech on Tuesday to the Canadian Club in Toronto, Quebecor chief executive officer Pierre Karl Péladeau said the CRTC’s recent decision was an “opportunity” for Quebecor and other third-party internet providers are who still “alive and kicking.”
This is the first time that the CRTC had mandated “aggregated” network access, which includes both access facilities – the local wires to the individual homes or businesses – and the transport facilities, or the longer-distance transport routes between them.
Since 2015, incumbents have been required to provide access to local connections, but not the transport facilities.