The Federal Court of Appeal has denied Bell’s request to stay a regulatory decision that orders it to provide competitors access to its fibre-to-the-premises (FTTP) network.
In the February 9th decision, Justice Mary J.L. Gleason notes Bell failed to provide evidence on how it would suffer if the court didn’t grant a stay. If a court grants a stay, the case will not move forward.
In November 2023, the Canadian Radio-television and Telecommunications Commission (CRTC) ordered Bell and Telus to give independent competitors in Ontario and Québec access to their respective networks on an aggregated basis to give residents in the two provinces more options.
As Bell describes in its appeal, aggregated services allow resellers to lease access facilities needed to connect to consumers’ locations and the transport facilities where traffic goes through. Disaggregated networks allow resellers to lease access facilities but not transport facilities. Resellers have to access transport facilities either through their own investments or by leasing them from another competitor.
The CRTC mandated the disaggregated model in 2015. However, competitors were unable to access it. “According to some of the respondents to this motion, the disaggregated access option for FTTP was unfeasible because it was too expensive for them,” the decision states.
The CRTC’s order has impacted Bell considerably more than Telus, which has a majority of its internet operations in the West. In the two provinces, Telus has a “relatively small number of customers,” the decision states.
Justice Gleason notes Bell couldn’t show how it would suffer “irreparable harm” if a stay isn’t granted.
“Bell provides no evidence, documentary or otherwise, detailing how or why it is likely to permanently lose customers or revenue,” the decision states. “The fact that competition might increase does not necessarily translate into a loss of market share for Bell.”
Pointing to Bell’s call to reduce $1 billion in investments for its fibre network, Justice Gleason says the move was a “business choice” from the company.
“In the absence of evidence showing how implementing the temporary mandated access would imperil Bell’s continued existence, I fail to see how making the investments required to implement the decision instead of others could constitute irreparable harm.”
The CRTC is holding a public hearing on the matter this week.
Source: Federal Court of Appeal
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