Telecom Decision CRTC 2023-358 Sent Back to CRTC

Whereas on February 9, 2023, the Governor in Council issued a direction to the Canadian Radio-television and Telecommunications Commission ("Commission") in an Order in Council entitled Order Issuing a Direction to the CRTC on a Renewed Approach to Telecommunications Policy^{Footnote 1} ("Order") with a view to promoting competition, affordability, consumer rights and universal access;

Whereas sections 2 and 8 of the Order set out the key objectives that should guide the Commission in the making of decisions of an economic nature;

Whereas the Order requires the Commission to mandate the provision of an aggregated wholesale high- speed access service ("aggregated HSA service") until it determines that broad, sustainable and meaningful competition will persist;

Whereas, on March 8, 2023, the Commission issued Telecom Notice of Consultation CRTC 2023-56, entitled Notice of hearing - Review of the wholesale high-speed access service framework, to allow parties and interested persons to make submissions with respect to the wholesale high-speed access service framework;

Whereas, on November 6, 2023, the Commission rendered Telecom Decision CRTC 2023-358, entitled Review of the wholesale high-speed access service framework - Temporary access to fibre-to-the- premises facilities over aggregated wholesale high- speed access services ("Decision CRTC 2023-358");

Whereas in Decision CRTC 2023-358, the Commission directed large incumbent local exchange carriers to provide access to fibre-to-the-premises ("FTTP") facilities over aggregated HSA services ("access to aggregated FTTP services") within their Ontario and Quebec serving territories within six months of the date of Decision CRTC 2023-358 on a temporary basis and at interim rates, and to continue to do so until the Commission decides whether such access is to be provided in the longer term;

Whereas subsection 12(1) of the Telecommunications Act ("Act") provides that, within one year after a decision by the Commission, the Governor in Council may, on petition in writing presented to the Governor in Council within 90 days after the decision, or on the Governor in Council's own motion, by order, vary or rescind the decision or refer it back to the Commission for reconsideration of all or a portion of it;

Whereas, on February 2, 2024, Bell Canada presented to the Governor in Council a petition in writing requesting that the Governor in Council rescind Decision CRTC 2023-358 or, in the alternative, vary or refer it back to the Commission for reconsideration with a direction that

1. all incumbent carriers with FTTP facilities be mandated to provide access to aggregated FTTP services within their incumbent serving territories across Canada;
2. the three largest incumbent carriers, Bell Canada, Rogers Communications Canada Inc. and TELUS Communications Inc., and their affiliates be prohibited from using aggregated FTTP services further to tariffs approved by the Commission; and
3. all incumbent carriers, and their affiliates, be prohibited from using aggregated FTTP services further to tariffs approved by the Commission within their incumbent serving territories;

Whereas, under subsection 12(4) of the Act, a notice of receipt of Bell Canada's petition was published in the Canada Gazette, Part I, by the Minister of Industry on April 27, 2024, indicating where the petition and any petition or submission made in response to it may be inspected and copies of them obtained;

Whereas, under section 13 of the Act, the Minister of Industry has provided the provinces with an opportunity to consult with the Minister;

Whereas the Governor in Council has considered Bell Canada's petition together with all of the information and advice received with respect to it;

Whereas, on August 13, 2024, the Commission is‐ sued Telecom Regulatory Policy CRTC 2024-180, entitled Competition in Canada's Internet service markets, which requires Bell Canada, Bell Aliant, Bell MTS, Saskatchewan Telecommunications and TELUS Communications Inc. to provide access to aggregated FTTP services, subject to certain conditions, no later than February 13, 2025;

Whereas the Governor in Council considers that, in accordance with section 47 of the Act, the Commission exercised its powers and performed its duties with a view to implementing the Canadian telecommunications policy objectives and in accordance with any orders made by the Governor in Council under section 8 of the Act;

Whereas mandated wholesale access is a proven regulatory tool and the Governor in Council considers access to aggregated FTTP services critical to supporting healthy competition in the retail Internet services market;

Whereas the Governor in Council considers that FTTP technology is an increasingly important element of the retail Internet services market and that a lack of access to aggregated FTTP services has been a barrier to competition;

Whereas the Governor in Council is of the opinion that the Commission moved expeditiously in launching a comprehensive review of the wholesale high-speed access service framework with a view to improving consumer choice and increasing competition;

Whereas the three largest telecommunications ser‐ vice providers in Canada - Bell Canada, Rogers Communications Canada Inc. and TELUS Communications Inc. - are of a disproportionate size relative to other Internet service providers;

Whereas those three providers are also national mobile wireless service providers and have been found to collectively exercise market power in the provision of retail mobile wireless services in all provinces except Saskatchewan and the territories;

Whereas mobile wireless services are frequently bundled with Internet services;

Whereas the return on investment and the costs of maintaining broadband infrastructure in less densely populated communities fluctuate according to the penetration rate for the retail Internet services market;

Whereas the Governor in Council has concerns about future and ongoing investments in broadband infrastructure and services in Ontario and Quebec, including in rural, remote and Indigenous communities, and concerns that those investments could, if they are unprofitable, lead to a decline in quality and consumer choice in the retail Internet services market;

Whereas the Governor in Council has concerns about the viability of small and regional Internet service providers;

Whereas the Governor in Council considers it appropriate to take a prudent approach in these matters;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, under subsection 12(1) of the Telecommunications Act, refers Telecom Decision CRTC 2023-358 back to the Canadian Radio-television and Telecommunications Commission to reconsider, no later than 90 days after the day on which this Order is made, whether Bell Canada, Rogers Communications Canada Inc. and TELUS Communications Inc. and their affiliates should be prohibited from using aggregated FTTP services in Ontario and Quebec further to tariffs approved by the Commission.