TekSavvy says regulator lacking teeth on the matter
By Ahmad Hathout
Despite CRTC letters asking them to maintain access, Cogeco and Eastlink have told the regulator they intend to move forward with decommissioning legacy facilities that will affect their wholesale customers.
In two recent letters, CRTC staff had asked Cogeco and Eastlink, who are converting their coaxial networks to fibre, to maintain those older facilities for TekSavvy and Fibernetics, respectively, and that it will embark on a review of decommissioning practices. The CRTC staff had asked the cablecos to confirm that access will be preserved.
But the cablecos told the regulator in separate replies that they intend to continue decommissioning work at the scheduled dates and will file replies to the applications.
“The letter from the CRTC was unfortunately only from CRTC staff, and not the commission itself, and it only requested that Cogeco maintain access, because staff can’t order them to do so,” Andy Kaplan-Myrth, TekSavvy’s vice president of regulatory and carrier affairs, told Cartt. “In the past, that has generally been sufficient, and carriers have maintained access following requests like that, but not anymore.”
Kaplan-Myrth claims Cogeco only gave TekSavvy time to alert customers that their services will end on April 14. TekSavvy said its affected customers are in Burlington, Kingston, Windsor and Chatham, the latter two having the most imminent dates for decommissioning, according to Cogeco.
Cogeco said in a March 26 response to the request that it “has not taken this position lightly.” It said it must decommission the older facilities because they are economically and technically unfeasible to maintain and that it has given TekSavvy over seven months to migrate to other options, including using its own transport to connect to Cogeco’s infrastructure or using Bell’s bundled fibre network.
“The true driver of TekSavvy’s request is to avoid paying the costs of serving customers over fibre access facilities, not loss of access,” Cogeco alleges in the reply. “TekSavvy is seeking an unreasonable advantage by asking the Commission to mandate wholesale access to these new facilities on highly favourable terms for an indefinite period.”
Cogeco also said it would be inappropriate to force it to provide aggregated access to its fibre network – which is not mandated by the CRTC – at rates it charges for access to the older network.
“CRTC staff make requests like the ones in their Cogeco and Eastlink letters to manage individual disputes with a lighter touch, giving the Commission space to regulate the industry as a whole,” Kaplan-Myrth added. “If dominant incumbents routinely refuse staff requests like this, and the Commission won’t back up those requests with action, the Commission will quickly become overburdened dealing with individual skirmishes, making it even more difficult than it already has been to regulate the industry in a timely manner. Instead of expeditious action by the Commission, we have CRTC inaction, incumbents defying CRTC staff, and price increases and service disruptions for consumers.
“TekSavvy is very concerned not only about how Cogeco’s decommissioning activities affect our customers, our business, and competition as a whole, but also about the CRTC’s ability to regulate incumbents that increasingly behave like they are too big or powerful to regulate.”
Cogeco declined to comment.
Eastlink said the CRTC did not provide it with an opportunity to respond to Fibernetics’s application, which included this interim relief.
“The Commission staff issued a letter requesting that Eastlink adhere to Fibernetics’ requested interim relief, without any notice to Eastlink, and with no opportunity for Eastlink to respond,” the cableco said in its reply, dated Wednesday, adding this is a breach of its participatory rights and fairness.
Eastlink said it has given Fibernetics until September 1 to move its two customers off of its network in Sydney, Nova Scotia, so there’s “no urgency that warrants a rush to judgement without following a fair and transparent process.”
Eastlink, which noted that maintaining the old facilities would be costly, said Fibernetics can use Bell’s fibre network, which is subject to the CRTC’s mandatory access rule.
“It’s very disappointing that when Part 1 applicants are granted interim relief by the Commission, the large incumbents do not comply,” Richard Schleihauf, Fibernetics’s vice president of regulatory affairs and carrier relations, told Cartt.
“At stake is competitive choice for consumers,” he added. “As previously stated, cablecos are not mandated to provide wholesale FTTP [fibre-to-the-premises] access like the telcos are required to, so the cablecos provide themselves with zero wholesale competition (and undue preference) as they convert areas within their territories to fibre only. Thus, it’s in their own benefit to remove copper infrastructure as quickly as possible.
“Without a viable wholesale regime which includes FTTP access from all large incumbents, that is both telcos and cablecos, it’s not only the smaller competitive ISP’s that suffer, but ultimately it’s the Canadian consumer that loses with having less choice and higher prices.”
Eastlink also declined to comment. The CRTC said it cannot comment on matters currently before it.
The regulator had already determined in response to previous TekSavvy applications that decommissioning of older technologies would be bad news for competitors and asked Rogers and Cogeco to maintain that access. That determination came two days after the release of its final wholesale internet framework in August 2024, in which it said it would hold a proceeding to determine the broader impact of copper decommissioning on wholesale competitors.
