Regulator acknowledges error, but doesn’t change outcome
By Ahmad Hathout
The CRTC on Friday upheld a three-year-old decision that imposed on Bell a $7.5-million administrative monetary penalty (AMP) for preventing Videotron from accessing the telco’s poles in a timely manner.
The issue stemmed from a 2020 complaint made by Quebecor, on behalf of Videotron, for an order forcing Bell to process permit application to access its support structures. Quebecor alleged Bell was unreasonably delaying the processing of those applications; applying construction standards in an unreasonable and discriminatory way; and making it responsible for the cost of replacing structures.
The next year, the CRTC found Bell violated the Telecommunications Act by delaying access, and concurrently launched an AMP proceeding, which resulted in fines of $7.5 million for three infractions at $2.5 million each. After the penalty was handed down, Bell responded with a review and vary application on the basis that the commission allegedly made several errors and that the AMP was excessive.
While the CRTC on Friday found that Bell did not explain why it waited for the outcome of the AMP proceeding – which was separate from the regulator’s findings that preceded it – to file the review and vary, it said it should have considered some evidence of Bell’s due diligence defence for mitigating purposes.
Namely, Bell charged that the CRTC did not consider that it delayed access out of good faith safety concerns and that there were factors beyond its own control, such as getting authorization for make-ready work required by third parties.
The commission rejected Bell’s good faith safety concerns and construction standards defence in Friday’s decision, simply pointing to the fact that as Bell denied Videotron access, it was simultaneously putting its own fibre equipment on those same poles.
Bell had also complained of having to wait for work to be done by utilities and the delays that resulted from getting access to private individuals’ properties. “Bell Canada submitted that the purpose of these examples was to demonstrate that it is not immune to delays, and that its FTTH teams are also subject to the same construction standards as licensees, which can delay Bell Canada’s network deployment projects,” the CRTC said.
But the commission rejected the argument because the telco failed to demonstrate how these circumstances meant it shouldn’t be subject to an AMP.
“Bell Canada failed to draw clear and meaningful parallels between the conduct of other parties in the examples cited and Bell Canada’s own conduct toward Videotron,” the commission said in its decision. “In particular, Bell Canada did not explain how the circumstances in the four examples demonstrate that its conduct towards Videotron – and the delays experienced by Videotron in obtaining access permits from Bell Canada – should not have resulted in an AMP, despite its violations of the Act.”
Finally, Bell argued that the CRTC misrepresented the situation by focusing on the number of permits issues rather than the number of structures reviewed. The telco said in 2019 and 2020, it received requests for access to more than 100,000 poles in Quebec alone, and that each pole requires physical inspection before a permit can be approved. The point the telco was trying to make was that each situation is unique and that it relies on the work of other parties that is beyond its own direct hand.
The CRTC also rejected this argument, citing section 72.16 of the Telecommunications Act. “Based on this provision, Bell Canada was vicariously liable for the actions of its FTTH network deployment teams,” the CRTC said. “Moreover, Bell Canada was liable for those teams’ actions, regardless of whether the actions occurred without Bell Canada’s knowledge or approval, and regardless of an absence of anti-competitive intent, as claimed by Bell Canada. Consequently, Bell Canada’s claim that it had no involvement in the violations and therefore should not be liable for an AMP is without merit.”
Bell must pay the amount by October 13. Emails to Bell and Videotron were not returned in time for publishing.
Under the act’s administrative monetary penalty framework, the CRTC had the power to impose a penalty of up to $10 million for a first violation and up to $15 million for subsequent violations.
Shortly after the CRTC launched the monetary penalty consultation, Quebecor president and CEO Pierre Karl Péladeau said he did not think a $10 million fine for a first violation would be enough.
Ontario Commissioner Bram Abramson said in a dissenting opinion that he believes the CRTC missed an opportunity with this decision to set out a prescriptive and predictable AMP rubric for parties going forward.
“Structured, transparent, and repeatable,” Abramson said of what the AMP framework should strive to be. “We need not go so far as to overspecify every element, or to purport to overly bind our successors. But nor, in my respectful view, have we yet struck the appropriate balance.”
