CNOC calls for fibre resale relief in TekSavvy complaint against Rogers-Quebecor divestiture arrangement

The Competitive Network Operators of Canada has rowed in behind a Part 1 application from TekSavvy Solutions Inc., which alleges that the array of off-tariff agreements (OTAs) between Rogers Communications Inc. and Quebecor Inc. constitute a violation of the undue preference prohibitions in the Telecommunications Act. In an early intervention in the CRTC's proceeding on the matter, CNOC is calling for the CRTC to institute an emergency interim relief for the country's wholesale-based ISPs. CNOC, a trade organization representing wholesale-based internet service providers (ISPs), has long advocated for CRTC's implementation of a retail Internet service resale (RISR) framework for fibre-to-the-premise (FTTP). In an intervention with the regulator filed Tuesday CNOC renewed the call, and argued that the RISR FTTP remedy CNOC called for its own January, 2021 application "is a ready-made solution to the issues raised in the TekSavvy Application." The RISR framework for FTTP service would require incumbent telecom companies to make the retail internet offered to end users over FTTP access facilities available to wholesale competitors at a 25 per cent discount from the cheapest retail rate in a given market. TekSavvy's complaint is grounded in the argument that the deal Rogers has offered Quebecor – which includes discounted roaming on Rogers’ networks, multi-year access to fibre backhaul for all of Freedom’s cell sites, a multi-year discounted TPIA arrangement, and combined spectrum to launch Freedom’s 5G service – is an undue preference and undermines Canada's wholesale broadband market. CNOC argued that TekSavvy's application meets all the requirements for interim relief, and suggested that if the CRTC was not prepared to institute the resale framework for FTTP service, then the commission could apply the remedy "more narrowly" to the OTAs between Rogers and Quebecor – as well as those between BCE Inc. and Ebox Inc. impugned in TekSavvy's undue preference complaint – as an interim measure until the CRTC ultimately rules on the undue preference complaint and CNOC's own two-year old request. The challenge to Rogers' web of OTAs with Quebecor, CNOC continued, meets the three-step test for interim relief known as the RJR-MacDonald test: there is a serious issue to be determined; a risk of irreparable harm; and that the balance of convenience favours granting the interim relief. The OTAs offered to Quebecor are a "significant threat to competition," CNOC wrote, and therefore the questions to be determined are "clearly not frivolous." Should the arrangements between Rogers and Quebecor be allowed to stand, the threat of loss of customers and the shrinking of market share amount to an irreparable harm, CNOC added, not just for TekSavvy but for the entire wholesale-based ISP sector. "The anti-competitive head-starts that are created or worsened by unduly preferential OTAs are negatively influencing public perceptions of competitive service providers who are unable to compete in market segments served by FTTP and the higher service speeds enabled by those facilities," CNOC wrote. "In market segments where high-speed FTTP-based services are in ever-increasing demand, unduly preferential OTAs perpetuate a perception that competitive service providers are behind on the technology curve and can only compete on older generation networks," the intervention read. "Such reputational harm, which cannot be cured by pecuniary damages, is precisely what interim relief if intended to prevent." — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

CNOC calls for fibre resale relief in TekSavvy complaint against Rogers-Quebecor divestiture arrangement

News | February 1, 2023

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CNOC calls for fibre resale relief in TekSavvy complaint against Rogers-Quebecor divestiture arrangement

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