OTTAWA – The CRTC announced today it will not regulate access to fibre in-building wire (IBW) in multi-dwelling units (MDUs) across the country, stating it found “that access to fibre IBW is not an essential service.”
This decision was outlined in Telecom Regulatory Policy CRTC 2021-239, which follows a public proceeding announced in December 2019.
The notice of consultation itself followed a series of decisions and statements on the issue of fibre IBW in MDUs starting in 2018 when Cloudwifi, an independent ISP, alleged Bell disconnected its customers at two Ontario properties where the company had been using Bell fibre IBW.
Initially, the CRTC ruled Bell would have to allow ISPs access to its fibre IBW in MDUs and directed Bell to submit amended tariff pages to reflect this decision. Bell then asked the CRTC to review, vary and rescind certain findings from the decision, which the Commission accepted on the same day it announced public proceedings into the issue of access to fibre IBW in MDUs.
CRTC 2021-239 indicates the Commission’s decision not to regulate access to fibre IBW in MDUs was made based on the CRTC’s Essentiality Test, which has three components – input, competition and duplicability. The CRTC found “that access to fibre IBW does not meet the second and third components of the Essentiality Test,” according to the regulatory policy. Furthermore, the CRTC determined “that there is no valid policy reason to continue mandating this service.” Valid policy reasons, as outlined in Telecom Regulatory Policy 2015-326 relate to the public good, interconnection and innovation and investment.
For the CRTC to have considered the public good to be a valid policy reason there would have to be “a need to mandate the service for reasons of social or consumer welfare, public safety, or public convenience,” according to the document. The CRTC found there is not a strong connection between access to fibre IBW and any of the reasons outlined above. The Commission added it “does not consider that competition and consumer choice qualify as public good considerations.”
A second determination the CRTC included in the regulatory policy released today was to modify “the MDU access condition regarding access to fibre IBW, so that a competitor’s choice to access end-users by means of reselling or leasing fibre IBW would not be mandated but rather subject to a commercial agreement being reached with the owner of the fibre IBW, and without a tariff being required.” Competitors would continue to be able “to access the MDU to install their own fibre IBW in an MDU under the MDU access condition,” according to the document.
The CRTC’s third determination was to extend “the modified MDU access condition and associated obligations to all carrier Internet service providers (ISPs). All carrier ISPs are to have access to copper IBW on the same basis as local exchange carriers.”
In the final determination outlined in the document, the CRTC stated it would repeal “its decision to apply Bell Canada’s existing tariff for access to copper IBW to the provision of access to fibre IBW on an interim basis, effective 180 days from the date of this decision.” Companies currently using Bell’s fibre IBW under the tariff order have 180 days to either cease and desist or come to an agreement with Bell for continued use.
There is already dissatisfaction being expressed about the decision. “As it stands, the CRTC appears to have rendered another totally anti-consumer decision,” said Geoff White, executive director of Competitive Network Operators of Canada (CNOC), in an email to Cartt.ca. The CRTC “didn’t think that IBW regulation is necessary to further consumer/social policy which in and of itself is an absurd conclusion.” White indicated CNOC will study the decision and consider its options. “This is the third anti-consumer strike in almost as many months. If this were baseball, the CRTC would be “out”.”
Updated July 28:
Cloudwifi, which was at the centre of the issue in 2018, is unsurprisingly critical of the CRTC’s decision as well. “We are disappointed that the CRTC has reversed another major telecommunications decision, once again in favour of big telecom profits and at the expense of increased consumer choice and competition,” a statement from the company emailed to Cartt.ca reads. “This ruling delivers a blow to the millions of Canadians who live in condos and apartments across the country, making it even more difficult to find high quality, reasonably priced alternatives to the big phone and cable companies.” While Cloudwifi is still reviewing the full decision and is evaluating its options, the company did note that “this decision makes us even more passionate about continuing our rapid growth and delivering on our mission to help Canadians improve their internet speeds while saving money.”
TekSavvy has similar criticisms of the CRTC’s decision. “The CRTC is dismantling Canada’s framework for telecom competition while Canadians pay some of the highest prices in the world,” said Andy Kaplan-Myrth, TekSavvy’s vice-president of regulatory and carrier affairs, in an emailed statement to Cartt.ca. “We hope that Cabinet will act quickly to promote competition and restore faith in the CRTC’s regulatory process.” TekSavvy’s statement also said this latest “decision underscores the urgency of TekSavvy’s recent petition to Cabinet seeking Ian Scott’s removal as CRTC chair for his apparent bias against consumers and competition.”
Not all responses have been negative. Telus and Bell each indicated in statements emailed to Cartt.ca they are happy with the Commission’s decision. The Telus statement noted the company is “pleased with the CRTC decision that recognizes that any ISP can build their own facilities in MDUs. The decision encourages all carriers to invest in building communications infrastructure, like fibre, which is important for consumer choice and access to quality networks.”
Bell similarly stated it “welcomes the CRTC’s decision as it promotes competition, customer choice and supports a variety of service providers. The decision recognizes that today there are many telecom providers, large and small, that are installing fibre in multi-dwelling units (MDUs) across the country, and this decision enables fibre resellers to obtain access to in-building fibre through commercial negotiations, maintaining healthy competition in the industry.”
