OTTAWA – On Friday, the Federal Court of Appeal granted a temporary stay of CRTC Telecom Order 2019-288, the decision which set new, lower, wholesale rates for third party internet access providers and also forced the incumbent network operators to pay hundreds of millions of dollars in retroactive fees to the independent resellers.
Cable companies Rogers, Shaw, Cogeco, Videoton and Eastlink were the first to file for a stay as well as for leave to appeal the CRTC decision, as we reported here. Bell Canada has also filed its own appeal application with the court. Having spent billions of dollars over the years on their networks, the carriers say the rates the Commission has set are below their costs – and the retroactive amount to be paid back to independent resellers, unfair.
The interim stay granted will remain in place until the court makes a final ruling on the stay requested. The respondents (which include the Canadian Network Operators Consortium, Distributel, Ice Wireless, PIAC and others) now have until October 16th to file responses to the court, and then the cable companies have until November 4th to respond to that.
A decision on the stay would then be expected before the end of November. If the stay and leave to appeal is granted, the appeal would be heard sometime in 2020 with a decision to come some months after that.
While noting the respondents didn’t dispute the seriousness of the case, “I am also satisfied that the implementation of the CRTC Order could result in a permanent market distortion which could be extremely difficult to remedy afterwards. I also take note of the implicit undertaking by the applicants to make any properly owing retroactive payments to the respondents for the difference between the interim 2016 tariff rates and the 2019 tariff rates set in the CRTC Order if their appeal is not successful,” wrote justice Yves de Montigny in the Friday court ruling.
“In those circumstances, I am of the view that the balance of convenience favours the status quo until the applicants’ motion for leave to appeal and for an interlocutory stay is determined.”
In the meantime, the deadline for the companies to appeal the CRTC decision to cabinet, as well as to as the CRTC to review and vary its own decision, is November 13th. The companies won’t confirm their plans, but we’re clearing our calendar that day, just in case there’s news.
This means that for the time being, the retroactive payments are on hold, and the interim wholesale rates set in 2016 remain in place.
