Federal Court grants Telus leave to appeal in speed cap case

The Federal Court of Appeal will hear an appeal from Telus Corp. that challenges the CRTC’s decision to allow, on an interim basis, smaller providers to provide internet customers over-100 Mbps download speeds under a new regime. Telus filed the appeal request in April, a month after the CRTC decided that the Canadian Network Operators Consortium (CNOC) had a legitimate case to be concerned about not being able to provide those higher speeds if it didn’t move to the new disaggregated regime -- which allows smaller players to lease last-mile fibre at the expense of providing their own transport facilities. The CRTC temporarily suspended the cap until it makes a final determination on the rest of CNOC’s application. In a decision dated June 12, judge Richard Boivin of the Federal Court of Appeal ruled that the court will hear Telus’ case. The crux of Telus’ argument -- supported in a court filing by BCE Inc. -- is that the CRTC deviated from a standard three-part test that the complainant must meet to grant it its relief request: that it’s a serious issue, it meets a “balance of convenience,” including the public interest, and that not granting its application would cause it “irreparable harm.” The CRTC ruled that CNOC did not satisfy the latter provision, but granted the relief anyway for public interest reasons. Telus said in its application that the CRTC didn’t notify the parties, who argued their cases based on the test, about its departure from the process. CNOC filed the initial complaint with the CRTC in November last year suggesting the current framework for the new regime was unworkable because the smaller providers would have to connect to many more incumbent points, which is financially costly. The CRTC set interim rates for that fibre access in 2017, but has yet to make a determination on final rates that will crystallize costs for renters. Large internet service providers (ISPs) have argued that getting rid of the speed cap would remove the motivation for those players to adopt the 2015 disaggregated regime. In a January submission to a panel studying the country’s communications laws, CNOC argued that “many” ISPs could shut down because of the disaggregated regime’s current framework, which the smaller players originally supported.

Federal Court grants Telus leave to appeal in speed cap case

Brief | June 19, 2019

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Federal Court grants Telus leave to appeal in speed cap case

Brief | June 19, 2019

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