By Ahmad Hathout
Rogers can force a competitor to connect at a traffic hand-off point of its choosing because its commission-approved tariff allows it, the CRTC ruled Thursday.
Cambridge, Ont.-based Fibernetics argued in a 2024 Part 1 application that Rogers was forcing it to connect its fibre half a kilometre away from the cable giant’s head-end facility in Calgary because Fibernetics was using a third-party, not Rogers, to route the traffic back to its office. Fibernetics, which was backed by other wholesale-based competitors claiming similar experiences, argued this effectively disadvantaged it because Rogers was forcing a competing internet service provider to incur additional costs by routing to the less convenient hand-off point. (Fibernetics claimed in the application that its third-party offers three times the capacity of Rogers while being cheaper to lease per month.)
While the CRTC agreed that Fibernetics – which already had fibre at the head-end facility from a separate but direct agreement with Rogers – was disadvantaged by this arrangement, it ultimately ruled that Rogers was not giving itself an undue preference because the arrangement was not offside of the cable giant’s tariff, which it found applied consistently to all wholesale customers.
“The Commission considers that Rogers’ requirement to interconnect at the meet-me point is consistent with its TPIA tariff,” the CRTC ruled, adding it does not consider the interconnection point at its head-end facility as a point of interconnection [POI] under the tariff. “According to the tariff, customers are responsible for interconnecting to one or more POIs designated by Rogers. In this case, Rogers indicated that the designated POI for Southern Alberta is at the meet-me point address in Calgary.”
Rogers, which declined to comment for this story, had argued that, in any event, it did not even have the capacity to accommodate third-party services at the location, and forcing it to do so would bring risks to its infrastructure.
“From a network design perspective, Fibernetics’ request to interconnect within Rogers’ head-end facility would require Rogers to make modifications to facilitate [third-party internet access (TPIA)] and poses challenges related to access to the equipment within the facility,” the CRTC agreed, adding the record does not show that the meet-me point is inefficient or that another exists that is more efficient.
“In contrast, the meet-me point is already set up to provide timely access for parties to interconnect their equipment and perform maintenance. As a result, the Commission is of the view that it would be appropriate for the Provider to interconnect at the designated meet-me point.”
The CRTC also found that Fibernetics would be able to reasonably recover its costs through the lower prices charged by its third-party backhaul service provider.
Richard Schleihauf, Fibernetics’s vice president of regulatory affairs and carrier relations, expressed bewilderment that the commission would simultaneously find that Fibernetics was disadvantaged and Rogers was in its right to designate the POI.
“Rogers is using its own head-end facility as its own TPIA POI but only for itself. Every other carrier must use a designated TPIA POI that is ½ km away from the head-head facility,” he reiterated to Cartt. “Despite Fibernetics providing a written service agreement proving such undue preference by Rogers, the Commission was ‘not convinced’!”
He called the decision a “guilty verdict” carrying “no punishment.”
Schleihauf did, however, call the dissenting opinion of Ontario Commissioner Bram Abramson “sound and reasonable.”
Abramson charges that the majority’s analysis is insufficient, arguing that the commission should have held Rogers to a higher burden of proof by forcing it to demonstrate its infrastructure does not both give itself a preference and disadvantage competitors.
In Abramson’s view, the majority simply viewed the infrastructure set-up as “acceptable” because “it is not shown to be extreme,” given it found the alternative POI is not inefficient and the cost recovery is reasonable. He called those general concerns “not enough” to make a determination on unjust discrimination. In this case, Abramson finds Rogers has not met its burden that its arrangement is not undue.
“The record contains no specific technical evidence from Rogers explaining why a functionally equivalent in-building or other non-civil-build arrangement, designed reasonably, could not have been feasible, safe, or proportionate,” Abramson said. “Rogers instead raised only general remarks about network design, security, and operational integrity.”
Abramson said he would have ordered Rogers and Fibernetics to use staff-assisted mediation – with final offer arbitration as a last resort – to come to an arrangement within 60 days “that would eliminate the undue operational and pricing asymmetries,” which could include a “technically feasible non-civil-build interconnection option, fairly priced access to Rogers’ transport, or a combination of terms that lets Fibernetics’ designated Carrier compete with Rogers’ backhaul service without duplicative Calgary Heritage presences and civil builds.”
