Cable / Telecom News

TPIA: Supreme Court to announce Thursday morning whether leave to appeal wholesale fees decision can go ahead



Whatever the SCC decides, all still await the CRTC’s Review & Vary call

By Denis Carmel

OTTAWA – The Supreme Court of Canada will, on Thursday morning at 9:45, release a decision on whether it will hear an appeal of the August 2019 decision which the CRTC set new wholesale internet fees for incumbents, a decision which also forced the likes of Bell, Rogers and others to pay retroactive fees to independent resellers.

Both Bell as well as the large traditional cable carriers sought leave to appeal the Federal Court of Appeal decision which upheld CRTC decision 2019-288—Final rates for aggregated wholesale high-speed access services. (background here)

This is a relatively speedy turnaround for such a decision, since Court data shows on average, it takes four months to reach a such leave decisions. The application was filed on November 12 and taking in consideration the Holiday season it is rather quick, but we should not infer anything from it. Caution is always required when trying to predict Court outcomes but Cartt.ca thought it would provide some of the context on how all this works.

First, of the roughly 500 leave applications the Court receives each year, 89% are rejected.

And the Supreme Court Act provides that the Court should grant leave to appeal: “Where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it.”

Not very helpful but the rejection rate implies that the Court is very selective.

If the leave is granted, the Court statistics show that about half of them are successful and the average time to get a hearing is approximately seven months and a decision is issued then some five months later.

The original CRTC decision was issued on August 15, 2019, and it was appealed by large operators to the Federal Court, to Cabinet and the CRTC itself (through a Review & Vary which remains before the Commission).

The Federal Court of Appeal rejected their Appeal, as Cabinet did, albeit with a big caveat. We are all waiting for the CRTC to issue its R&V decision.

On November 26, 2020, Ian Scott, chairman of the CRTC, was asked about this by a member of the Standing Committee on Industry, Science and Technology and said: “We don’t predict or signal exactly when a decision would be released. The record is complete in that proceeding. Staff is completing its analysis. Then members at a Commission meeting will make a collective decision. We are well aware of the significance of the file. We are working as quickly as we can.”

Asked if it was waiting for the Supreme Court before issuing its R&V decision, the CRTC responded in an email to Cartt.ca on Wednesday, “we do not have a publication timeframe to share at this time.”

But whatever the R&V decision, it is actually subject to the same exhausting avenues of appeals.

“This decision on the leave application by the Supreme Court, as well as answers on the CRTC Review and Vary come at a critical time for Canadians, and telecommunications competition generally. Today, competitors are stuck paying rates set many years ago, and for which the CRTC already determined were far higher than is fair and just. The CRTC went through an exhaustive three-year process to correct these rates and finalized them a year and a half ago,” said Matt Stein, CNOC Chair and CEO of Distributel.

“Unfortunately, through regulatory gaming, the big phone and big cable companies have leveraged every trick in the book to delay the implementation of appropriate rates. Especially in these unprecedented times where we all need our home internet more than ever before, and need more of it, Canadians deserve the competitive market the CRTC intended,” he added.

“Since the CRTC decision in August 2019, Competitors have been overcharged by nearly $100 million per year, which keeps competitors from doing one of the things we do best – efficiently converting those underlying costs into lower Internet prices for all Canadians. The most important thing is that we move forward, and get the new rates into effect, so that competition can flourish again, and so that Canadians can get back to enjoying the competitive market they deserve,” he concluded.

Bell did not respond to Cartt.ca’s invitation to comment on Wednesday.