Cogeco and Eastlink file joint court appeal of wholesale fibre access decision

Cogeco Communications Inc. and Bragg Communications Inc., parent company of Eastlink, have filed a motion with the Federal Court of Appeal seeking to overturn the CRTC’s decision permitting large incumbents to sell wholesale high-speed internet service to each other via third party internet access (TPIA) to their networks. In its June 20 decision, the commission refused an earlier plea by the pair, along with the Competitive Network Operators of Canada, to review and vary its original ruling permitting BCE Inc.’s Bell, Telus Corp. and Rogers Communications Inc. — collectively known as the Big Three — access to each other’s high-speed networks in non-incumbent regions. Bell and Rogers supported the review and vary filing; only Telus was opposed and has been adamantly defending incumbent access to the wholesale framework. Other telecoms such as TekSavvy Solutions Inc., Quebecor Inc. and Saskatchewan Telecommunications Holdings Corp. (SaskTel) were on Cogeco and Eastlink’s side. “This policy, if maintained, poses serious risks to the future of internet connectivity in Canada and runs directly contrary to the 2023 policy direction ,” Cogeco and Eastlink wrote to the court late last week. The competitors argue the CRTC policy threatens smaller players’ ability to stay in business. They add that it will be “devastating” for Canadian telecom. “It will hurt consumers by resulting in less affordable, innovative, and competitive services and less choice in the market,” the two companies state. “At the same time, it will destroy incentives to invest in the resilient networks that Canada increasingly depends on for its economic prosperity.” They argue the ruling is technology agnostic, applying equally to fibre and cable infrastructure. Most carriers provide service through a combination of coaxial cable and fibre to the premises, the firms say. In releasing quarterly figures in February, BCE CEO Mirko Bibic also called on the regulator to change the ruling. “We’re not in the business of building fibre for Telus’ benefit,” he said at the time. In December, Bell said it would not participate in future government-subsidized broadband projects – such as those meant to support Canada’s connectivity goals through the Universal Broadband Fund – unless the CRTC restricts the Big Three’s access to the regime. In their filing, Cogeco and Eastlink allege there are three primary errors in law and in jurisdiction in the CRTC decisions. First, they argue that the Big Three cannot be considered new service providers because they have long established wireline, wireless, and internet services. They also argue the regulator erred by erecting new barriers to small players rather than removing them by barring the Big Three access. Finally, the commission ignored key arguments put forward by the pair in their review and vary application, they allege. “In the present case, the CRTC erred in law at both steps in a way that irremediably tainted the rest of its analysis, resulting in a decision that treats the country’s largest and most powerful telecommunications service providers as ‘new’ and reduces barriers to competition for the largest players in the telecommunications market, while increasing these barriers — with potentially fatal effect — for everyone else,” the court filing states. This is not just a matter of the companies disagreeing with how the commission enforced the objectives of the 2023 policy direction, they say. The regulator asked the wrong questions when looking at the review and vary filing and did not meet the goals established by cabinet, they aver. The internet services market is concentrated, the parties believe, by the Big Three buying up smaller competitors over the years. Those competitors still in the market are hampered by their inability to bundle services the way the larger companies do, Cogeco and Eastlink maintain. They also worry that the Big Three will engage in mutual forbearance, when one firm avoids competing aggressively in a market to avoid retaliation from another competitor with whom they have contact in another region. In a statement to The Wire Report, Paul Cowling, chief legal and corporate affairs officer at Cogeco, said the government must act to rein in the regulator. “As the court process unfolds, there remains an urgent need for the cabinet to intervene immediately to fix the CRTC’s flawed policy,” he said. “At this critical time, Canadians need more competition, more affordable services, more choice in the market — beyond the Big Three. Critically, Canada needs more investment in our networks so that we have the digital infrastructure to power our economic ambitions.” The CRTC told The Wire Report it would not comment, as the matter is before the courts. Cabinet has until Aug. 13 to change the decision or force the commission to revisit it. ppark@thewirereport.ca

Cogeco and Eastlink file joint court appeal of wholesale fibre access decision

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By Paul Park
| July 21, 2025

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Cogeco and Eastlink file joint court appeal of wholesale fibre access decision

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