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CALL-NET ENTERPRISES INC.

PART VII APPLICATION OF BELL CANADA

TARIFF 7516 ITEM 105 4(b)(2)

DIAGNOSTIC MAINTENANCE CHARGE AND THE

INTRODUCTION OF CO-ORDINATED

HOT CUT AND CONNECTING LINK

CHANGE TARIFFS

HELD AT: TENUE À:

1 Promenade du Portage 1 Promenade du Portage

Salon Rhéal Therrien Salon Rhéal Therrien

Gatineau, Quebec Gatineau (Québec)

December 13, 2004 Le 13 décembre 2004

Transcripts

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

Transcription

Afin de rencontrer les exigences de la Loi sur les langues

officielles, les procès-verbaux pour le Conseil seront

bilingues en ce qui a trait à la page couverture, la liste des

membres et du personnel du CRTC participant à l'audience

publique ainsi que la table des matières.

Toutefois, la publication susmentionnée est un compte rendu

textuel des délibérations et, en tant que tel, est enregistrée

et transcrite dans l'une ou l'autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l'audience publique.

BEFORE / DEVANT:

David Colville Chairperson / Président

Barbara Cram Commissioner / Conseillère

Jean-Marc Demers Commissioner / Conseillier

ALSO PRESENT / AUSSI PRÉSENTS:

Stephen Millington Legal Counsel /

Conseiller juridique

Lynne Fancy Telecom Staff Team Leader /

Chef d'équipe aux

télécommunications

Shirley Soehn Executive Director, Telecom /

directrice exécutive des

télécommunications

Scott Hutton Director General, Competition,

Costing and Tariffs / directeur

général, Concurrence,

établissement des coûts et des

tarifs

Paul Godin Director, Competition,

Implementation and Technology /

directeur, Concurrence, mise en

ouvre et technologie

Jacques Therrien Senior Analyst, Competition,

Implementation and Technology /

Analyste, Concurrence, mise en

ouvre et technologie

HELD AT: TENUE À:

1 Promenade du Portage 1 Promenade du Portage

Salon Rhéal Therrien Salon Rhéal Therrien

Gatineau, Quebec Gatineau (Québec)

December 13, 2004 Le 13 décembre 2004

PAGE / PARA

Opening remarks by the Chairperson / 1 / 1

Remarques d'ouverture par le président

Opening remarks by Call-Net / 4 / 20

Remarques d'ouverture par Call-Net

Opening remarks by Bell Canada / 12 / 52

Remarques d'ouverture par Bell Canada

Questions by Commission / 21 / 94

Interrogatoire par la commission

Closing remarks by Call-Net / 122 / 578

Remarques de fermeture par Call-Net

Closing remarks by Bell Canada / 124 / 588

Remarques de fermeture par Bell Canada

Gatineau, Quebec / Gatineau (Québec)

--- Upon commencing on Monday, December 13, 2004

at 1009 / L'audience débute le lundi

13 décembre 2004 à 1009

1 THE CHAIRPERSON: Good morning, folks. I apologize for being a few minutes late. It is probably fitting for my last, last hearing. A number of you who have been involved in hearings over the years have heard me say before about the last hearing but this is my last, last hearing.

2 So it is perhaps appropriate that the plane was late arriving in Halifax from Newfoundland. There were no taxis at the airport here and a line-up of probably 50 or 60 people. When I finally did get a cab, it got slowed up behind a snowplough coming in the road from the airport. In any event, here I am. So let us begin.

3 For the record, good morning and welcome to everyone. My name is David Colville. I am, for the next 17 days, the Vice-Chairman for Telecommunications of the CRTC and Commissioner for the Atlantic Region. I will be chairing this public hearing. Joining me on the panel today are my colleagues Commissioner Barbara Cram and Commissioner Jean-Marc Demers.

4 Over the course of the hearing, we will be assisted by a number of Commission staff, including, among others, Stephen Millington, our Legal Counsel; Lynne Fancy, Telecom Staff Team Leader; Shirley Soehn, at the back of the room, Executive Director, Telecom; and seated beside Shirley is Scott Hutton, Director General, Competition, Costing and Tariffs; next on my list is Allan Rosenzveig but I don't see him here; Paul Godin, Director, Competition, Implementation and Technology; and Jacques Therrien -- I am sorry, Jacques, I don't remember your official title. Jacques is here anyway.

5 Don't hesitate to contact Steve Millington if you have any procedural questions with respect to the conduct of the hearing.

6 The purpose of this oral public hearing is to adjudicate a Part VII Application by Call-Net Enterprises versus Bell Canada regarding the rates and terms of several service charges. We intend to issue a brief written decision by December 22nd.

7 Before we begin, I would like to say a few words about the administration of this hearing.

8 There is a verbatim transcript of the hearing being taken by the court reporter. In order to ensure that the court reporter is able to produce an accurate transcript, please make sure your microphone is turned on when speaking. If you have any questions on how to obtain all or part of the transcript, please approach the court reporter at the end of the hearing.

9 Please ensure that all cell phones and pagers are turned off at all times while you are in the hearing room.

10 As indicated in the Commission's Organization and Conduct letter of December 8th, 2004, we plan to consider this Application from 10:00 a.m. to approximately 12:20 p.m.

11 Due to the expedited nature of these hearings, interveners and the general public will not participate in the oral phase of the proceedings.

12 This hearing is less formal than traditional telecom proceedings and much narrower in scope.

13 The parties will be asked to introduce the members of their respective teams. The Applicant, followed by the Respondent will have 10 minutes each for opening remarks.

14 Following these remarks, the parties will be questioned on matters related to the Application, first by the Commission, followed by the Applicant and then the Respondent, and ending with the Commission's final questions.

15 The Commission will not entertain written final argument; rather, parties will have 10 minutes at the end of the hearing of their item to make final oral submissions.

16 We are counting on your cooperation to ensure order throughout the hearing.

17 The Notice of Public Hearing letter indicated that the parties must file all documents with the Commission and serve on the other parties prior to the hearing. We are not inclined to accept any additional documents at this hearing.

18 We will now begin with the application by Call-Net. We will begin with opening remarks by the Applicant, who will have 10 minutes to make their presentation. Before beginning their remarks, I would ask the Applicant Call-Net to introduce the members of their team. Thank you.

19 Mr. Bowles.

OPENING REMARKS / REMARQUES D'OUVERTURE

20 MR. BOWLES: Thank you, Mr. Chairman. I guess we should be somewhat honoured by being a participant in your last hearing. I think I was a participant in your first hearing as well. I hope this one is as successful.

21 I am Don Bowles, Vice-President, Regulatory Affairs for Call-Net Enterprises. With me, I have Hubert Mayo, Manager of Voice Service Centre, and Bruce Watson, Manager of Regulatory Affairs.

22 We would like to thank the Commission for their consideration of this dispute.

23 Bell and Call-Net have been discussing the issues that are the subject of this dispute for several years now, but despite the efforts of both parties, there has been no resolution.

24 These issues involve hundreds of thousands of dollars a year, which, while relatively small in the overall scheme of things, have resulted in disputed charges going back several years, and dealing with these charges is taking up an inordinate amount of time for both of our companies.

25 I would like to say that generally our relationships with Bell, our working relationships with Bell are excellent. We work with these people daily and most disputes are resolved bilaterally and to our mutual satisfaction. However, I guess it is inevitable that from time to time there are some disputes that come up which we just can't seem to agree on.

26 The issues at question here are somewhat technical, involving various functions associated with the provision and maintenance of unbundled local loops. I will try to set them out here, again, in as simple a manner as possible.

27 The issues are -- and there are three of them -- the applicability of the Diagnostic Maintenance Charge, referred to as the DMC; the second one is the applicability of Co-ordinated Hot Cut-over charges, the CHC; and the actual rate levels associated with the above items as well as the rate levels for the Central Office Link Charge, the CLC.

28 We are also requesting that any revisions, except those arising from the requested Category I rating set out below, be made retroactive to January 1st, 2002.

29 I will deal with the three issues identified above in reverse order.

30 With respect to the actual rate levels, we believe they should all be set at Category I rate levels on a prospective basis, that is, at cost plus 15 per cent.

31 The basis for this position is set out in Telecom Decision CRTC 2004-4, which states -- and I quote:

"...since the Commission considers that the functions performed by an ILEC technician on behalf of the CLEC would form part of the loop provisioning process, the Commission is of the view that any field visit services provided would be considered Category I Competitor Services."

32 Should the Commission agree with this position, new tariffs would presumably be filed for all of these services, which would be dealt with through the normal tariff approval process, and accordingly, I won't address the matter further here.

33 The second item I will address concerns the applicability of Co-ordinated Hot Cut-over charges. A Co-ordinated Hot Cut-over -- these are used to transfer business customers from Bell to Call-Net services in such a way that there is a minimum of disruption to the customer's service.

34 Typically, a CHC takes an hour or less to complete and is conducted during regular business hours, that is, from 8:00 a.m. to 5:00 p.m., unless, of course, a customer requests an after-hours cut-over. If a cut-over is requested during regular business hours, a labour rate of $80 per hour is charged for one technician.

35 However, outside of business hours, the charge climbs to $115 per hour per person for up to four people if the work is performed contiguously with business hours, that is, 7:00-8:00 a.m. in the morning or 5:00-6:00 in the p.m., and this is referred to as a continuous overtime rate. A charge of $460 minimum per person for up to four people is charged if the work is not contiguous with regular business hours, and this is referred to as the call-out overtime rate.

36 Bell, during the process of this proceeding, has reduced the last charge from $460 to $310 minimum, which is set out in their Interrogatory no. 5.

37 Call-Net has two issues regarding this charge. Regular business hours are 8:00-5:00 p.m. and most after-hour cut-overs are scheduled between 7:00 and 8:00 a.m. and between 5:00 and 6:00 p.m. Call-Net submits that it would be appropriate to apply the continuous overtime rate, i.e. the $115 per hour per person, to work scheduled in these time periods and not the call-out overtime rate, the $460 per charge.

38 Indeed, again, during this proceeding, Bell has agreed to apply the continuous overtime rate for the 7:00-8:00 a.m. period, and Call-Net submits that the same rate should apply to the 5:00-6:00 p.m. period since it is unlikely, of course, that anyone would actually be called out during this period.

39 Call-Net's second issue with this is the number of people that we are being charged for for cut-overs. Call-Net understands that some of the personnel are there in case something goes wrong and the cut-over has to be undone. It is Call-Net's experience that usually there are no problems with cut-overs, and accordingly, it is inefficient and expensive to have these extra staff available for all cut-overs.

40 If something were to go wrong as a result of Call-Net's activities, Call-Net would, of course, be liable for bringing in the necessary Bell Canada personnel at presumably the call-out overtime rate. Call-Net, however, does not feel that it is appropriate to be charged for personnel where the fault is with Bell Canada.

41 We believe that Bell Canada can program the switch ahead of time to eliminate the need for an LNP representative and Bell Canada can also build and test the facilities prior to the Co-ordinated Hot Cut so that only one technician will actually ever be required. As well, Call-Net accepts that the availability of a CSG coordinator may also be prudent.

42 The last issue is the application of the Diagnostic Maintenance Charge or DMC. This charge is associated with situations where there is a problem with a customer's local service. A problem with a Call-Net local service may be in one of three areas: Call-Net's equipment, Bell Canada's local loop or the customer's equipment.

43 When a problem is identified by a customer to Call-Net, Call-Net checks the service to determine if the problem is in its equipment. If the problem is not in Call-Net's equipment, Call-Net conducts a metallic testing of the loop and completes a thorough check with the customer to try to ascertain if the problem is with the customer's equipment.

44 If the problem cannot be identified with the customer's equipment, the problem is referred to Bell -- and just a note that where a carrier system is used to provide a local loop, Call-Net is not in a position to perform the metallic testing and this testing is performed by Bell Canada. In any event, at this point, the problem has been isolated to either the Bell loop or the customer equipment.

45 Now, Bell, of course, also has the ability to test the loop and customer equipment to determine if there is a problem, and if there is, a truck roll is required to further isolate the problem. Should the Bell technician ultimately determine that the problem is with the customer equipment and a customer demarcation point is in place, Call-Net would, of course, pay the DMC and resolve the problem with the customer. If the technician determines that the problem is with the Bell loop, the loop is repaired and, of course, no DMC is applicable.

46 There are, however, a significant number of instances where the Bell technician finds no problems and the DMC is charged by Bell. It is these situations that are the basis of the current dispute.

47 Call-Net notes that there are two possible reasons why a problem could be cleared between the time that a trouble was reported and when a Bell technician tests the loop and customer equipment. These are either an intermittent fault in the customer equipment or some transient event on the Bell local loop.

48 Call-Net submits that it is highly unlikely that there would be an intermittent fault in the customer equipment and that, accordingly, in virtually all of these cases, the problem would be a transient event on the loop. Such events could be environmental, rain getting into the loop and then drying up, or due to Bell performing some non-related work on the cable or loop facilities. In these cases, Call-Net submits it is not appropriate to be charged the DMC.

49 This concludes our opening remarks. Thank you.

50 THE CHAIRPERSON: Thank you, Mr. Bowles.

51 We will now turn to -- Jean-François, there are unfamiliar faces to me.

OPENING REMARKS / REMARQUES D'OUVERTURE

52 MR. ABBOTT: Perhaps, Mr. Commissioner, I could start by introducing the panel. My name is Bill Abbott. I am Counsel for the Respondent Bell Canada.

53 With me today on behalf of Bell Canada are Dan Gooley, Senior Director, Operations, with the Carrier Services Group; slightly farther to my right is Rick Leroux, Association Director, Opeartions, Carrier Services Group; and even farther to the right -- well perhaps not politically -- is Mr. Sam Glazer, who is Associate Director, Business Processes, with the Carrier Services Group; and to my left is Jean-François Léger, who is Assistant General Counsel of Bell Canada.

54 Call-Net's Application raises issues with three services provided by Bell Canada under its tariffs: the Diagnostic Maintenance Charge in the Access Services Tariff, Co-ordinated Hot Cuts and the Connecting Link Change.

55 At the outset, I want to be clear that despite the billing disputes, Bell Canada has continued to provide the services in question to Call-Net and Bell Canada has also resolved many of the billing disputes raised by Call-Net in its Application.

56 Turning to the Diagnostic Maintenance Charge, the quickest way to get to the core of this dispute is to understand what is not at issue.

57 The DMC dispute is not about the interpretation of the DMC tariff. Even Call-Net has conceded in its reply of October 7th that it cannot dispute the plain wording of the DMC Wholesale Tariff.

58 The dispute is not about an alleged lack of an explicit rate in the Access Services Tariff DMC. The tariff incorporates by reference the rates set out explicitly in the General Tariff Item 4210. Call-Net has had no difficulty determining and paying this DMC rate when Call-Net agrees with the underlying policy for charging it.

59 Nor is the dispute about the reasonableness of the DMC rate. The DMC rate is 12 years old and contains no mark-up. If the costing were updated, the rate would be higher.

60 What the DMC dispute is about is an important piece of interconnection policy: Who should pay for testing done by an ILEC at the CLEC's request when the ILEC finds that there is no trouble on the ILEC's network?

61 The Access Services Tariff DMC applies only under narrow conditions where Call-Net, presumably having done its own testing, refers the trouble to Bell Canada and Bell's testing demonstrates that the trouble is not on Bell's network.

62 This allocation of testing costs is fair and good policy. It is Call-Net's customer that reports the alleged trouble, it is Call-Net who has the direct relationship with the customer and it is Call-Net who is able to avoid incurring any Bell Canada DMC charges by properly testing its own network before referring the matter to Bell Canada.

63 Interconnection is based on each LEC being responsible for its own customer and its own network. This policy was agreed to by Call-Net and approved by the Commission as the basis for interconnection.

64 With proper initial testing by Call-Net, there should be virtually zero cases referred to Bell by Call-Net where Bell finds no trouble on its network, and consequently, virtually no DMC charges. The reality is that about 25 per cent of Bell's testing at Call-Net's request results in finding either trouble on Call-Net's customer-provided equipment or no trouble at all. This strongly suggests that Call-Net is not doing reasonable testing before calling Bell Canada.

65 Bell Canada's current Access Services Tariff DMC is fair and equitable because it allocates the cost of testing and the risk of testing improperly to the party that has the direct relationship with the end-customer, the primary obligation to test in the first instance and the best ability to minimize testing costs. That party in this case is Call-Net.

66 Call-Net has also attacked the DMC as being unjustly discriminatory on the basis that Bell Canada and customers and CLECs are not treated the same. This allegation has two fatal flaws.

67 First, it assumes that the ILEC's end-customers and CLECs have the same status. The Commission has correctly noted in Decision 97-8 that:

"CLECs are not simply customers of the ILECs but are carriers of equal stature to the ILECs."

68 Call-Net has the technical expertise, the ability and the obligation to test and it owns part of the network. By way of contrast, a Bell Canada retail customer generally has little technical specification or testing capability.

69 The second flaw in the discrimination argument is the assumption that Retail Primary Exchange Service and Wholesale and Bundled Loop Service are the same. A retail customer purchases Primary Exchange Service and End-to-End Service for which Bell is entirely responsible. Unbundled Local Loop Service, on the other hand, is only one element of Call-Net's network. Call-Net adds other equipment and facilities and creates other services.

70 The difference between Primary Exchange Service and Unbundled Local Loop Service, along with the different statuses of the parties, justifies the different treatment in relation to Diagnostic Maintenance. Call-Net's Application seeks to simply shift the responsibility and cost of serving Call-Net's own customers and testing Call-Net's own network onto Bell without a compelling rationale.

71 The second issue concerns Co-ordinated Hot Cuts. As has been correctly pointed out, a Co-ordinated Hot Cut is required when a retail customer or a CLEC wants to move a large number of lines with minimal interruption of service.

72 Bell Canada recognizes that there have been some errors in how overtime rates have been charged to Call-Net for CHCs in the past. Bell has responded by providing credits where appropriate.

73 Call-Net claims that Bell deploys too many personnel and that the number of personnel could be reduced if Bell Canada did more pre-work. Call-Net also objects to the rate for CHCs done on a call-out overtime basis.

74 As set out in Bell Canada's response to the Commission's Interrogatory no. 7, there are various types of CHCs which involve different combinations of specialized personnel and significant pre-work is carried out prior to a CHC. Moreover, Bell personnel participating in a CHC are doing work that cannot be realistically completed ahead of time.

75 It should be emphasized that Bell Canada uses the same personnel and levies the same charges whether it is doing a CHC for its own retail customer or for a CLEC such as Call-Net. It also uses the same types and number of personnel for CHCs as TELUS does for similar varieties of CHCs.

76 With respect to the TELUS invoices provided by Call-Net, they don't indicate the type of CHC being carried out and cannot really be relied on as proof of anything in this proceeding.

77 Notably, when Call-Net has been given the option of eliminating certain Bell Canada personnel from CHCs, they have declined to do so. An example of this is a Local Number Portability or LNP representative.

78 In April of 2004, the parties agreed that if Call-Net indicated on its Local Service Request that it did not require an LNP representative, Bell Canada would not have one present. There have been over 500 CHCs since April involving Call-Net and only once have they requested that the LNP individual not be there.

79 With regard to the tariff rate for CHCs, CHCs are primarily labour. Bell Canada charges the labour rate found in General Tariff Item 4960.

80 In Decision 97-15, the Commission approved the use of the rates in Item 4960 for a range of labour services provided the CLECs on a wholesale basis. The rates were last updated in 1996.

81 As the Commission noted in 2003-11 at paragraph 80:

"Labour rates tend to increase over time and it is not appropriate to apply a productivity offset to labour rates."

82 The rates reflect Bell Canada's reasonable and unavoidable costs caused by Call-Net's request that certain CHCs be done outside of normal business hours. Bell Canada involves in CHCs only the personnel, based on extensive experience, necessary to ensure successful CHCs and to minimize service interruption to the end-customer should the CHC fail.

83 With respect to Connecting Link Change, Call-Net's complaint is similar to its CHC complaint: there are too many personnel and they cost too much.

84 Bell Canada relies on the arguments that it has already put forward in relation to CHCs. However, I would like to point out that Call-Net's complaint in relation to Connecting Link Changes is moot. Call-Net has agreed to pay the charges that arose prior to Order 2001-838 and no charges have validly arisen since that Order. Consequently, there are no CLC charges in dispute.

85 The real issue is Call-Net's failure to engage in mandatory cooperative testing. Bell Canada continues to carry out Connecting Link Change work at Call-Net's request but Bell Canada cannot charge for this work because there are no cooperative tests, despite Bell's request for one on each CLC.

86 The Commission should at least allow Bell Canada to charge for CLC work when a cooperative test has not taken place within a reasonable amount of time.

87 Finally, I would just like to say a few words with respect to relief, the relief requested by Call-Net.

88 Call-Net has asked the Commission to create new tariffs. The Company submits that this is unnecessary. There are valid Commission-approved tariffs with reasonable rates for all the services in question. Unique services and business processes that the Company would have to develop to accompany new tariffs are expensive to develop and should not be ordered if they are unnecessary.

89 If the Commission determines that one or more tariffs are required, Bell Canada submits that the Commission should simply direct Bell Canada to file a tariff via the normal tariff notice process without predetermining either the rates or the terms.

90 Call-Net has also requested that the Commission waive or eliminate all disputed amounts and make new rates and conditions, if they come to pass, retroactive. The basis for this is somewhat baffling. Call-Net has provided no source for the Commission's power to either eliminate valid debts or to impose retroactive rates.

91 This concludes Bell Canada's opening remarks. We would be pleased to take any questions.

92 THE CHAIRPERSON: Thank you very much, Mr. Abbott.

93 I will turn now to the Commission's Legal Counsel, Mr. Millington.

94 MR. MILLINGTON: Thank you, Mr. Colville.

95 My first questions will be for the Applicant and we will start with DMC. I would like to start with a point raised by Mr. Abbott in his opening remarks which basically frame the issue with respect to DMC as a basic interconnection policy question.

96 Bell Canada takes the position that when Call-Net purchases Unbundled Local Loops from Bell Canada, it is acting as a co-carrier and therefore is treated differently and this treatment is non-discriminatory with respect to a retail end-customer buying from Bell basic PES service. I would like to get Call-Net's position on that point.

97 MR. BOWLES: Well, to a certain extent, I would agree with Bell. I think the whole point of this is that clearly, if the fault is at the CLEC end, obviously, CLEC is responsible for paying the DMC, ultimately.

98 Again, as I was saying before, the situation is where there is no fault found on the line. When Call-Net gets a trouble ticket from a customer, we can do a certain amount of testing. If there is metallic continuity to the customer on the local loop, we can isolate our equipment from the loop and customer equipment side so we can check to see if the dial tone is being fed out over that loop. If there is dial tone going out over the loop, we conclude our equipment is working properly and then we try to determine the problem on the other side.

99 We do talk to the customer and do go through a checklist with the customer to try to determine if the problem is with the customer equipment. Obviously, many customers are not in a position to really help out on this. Sometimes it involves disconnecting equipment from the demarc and things like that and some people don't know where the demarc is, et cetera. So it is not conclusive. There is no way we can, at that point, conclusively determine if the problem is with the Bell loop or the customer equipment, and it is at that point we refer it to Bell.

100 At this point, presumably Bell can now determine -- they can do a similar test. They can actually isolate their loop and the customer equipment from our equipment, and presumably at that point if Bell finds that there is some problem in that part of the network, they end up having to roll a truck. At that point, if they don't find any faults, I mean all that has happened at that point is a technician has checked the loop, which is not a very extensive process.

101 But presumably if they do roll a truck, which, of course, is an expensive operation, they have already determined that there is some fault out on the loop or the customer equipment, and at that point they have to do the same thing as if a customer of theirs phoned, and they go out and they have to disconnect the customer equipment from the demarc and do testing on site.

102 If at that point they find no problem with the customer equipment and there is no fault with their own loop presumably, it just has to indicate that at some point something has happened between the time they dispatched and the time they started testing. Something has changed with the loop. I mean there is no other real logical answer to what may have happened.

103 So it is not that we are suggesting they treat us or we want to be treated exactly like a customer. Obviously, we are different than a retail customer because we have a whole network on the other side of the loop and we certainly have certain responsibilities that a retail customer wouldn't have.

104 I guess the point we are trying to make is that there are circumstances where the only rational explanation is that a loop has been -- something has gone wrong with a loop. Somehow, some situation has changed and now the loop is working again and we just don't think we should get charged for those types of situations.

105 MR. MILLINGTON: Okay.

106 In paragraphs 13 and 14 at page 3 of Bell Canada's argument, the whole process for testing and trouble reporting, as set out in O'Malley and the ITMG, are set out and the section 9b) -- well, first of all, would you agree that Call-Net did participate in the negotiation and the execution of both of those documents, as was asserted by Bell in its argument?

107 MR. BOWLES: Yes.

108 MR. MILLINGTON: And would you -- what would be your position with respect to the section 9b) of the O'Malley that is set out at paragraph 14? Is it your view that the process in section 9b) is consistent with Bell Canada's Wholesale DMC Tariff?

109 MR. BOWLES: Well again, certainly, to a certain extent, it is, and I guess one thing we have to say is that these things, of course, were all done before there was a huge, a vast compendium of actual practical experience with what some of these problems might be.

110 So I think, you know, certainly, there is some consistency with what Bell is doing with respect to this tariff, but as I was saying before, you know, we do our work on our end to determine it is not our network, and then at that point, it is only at that point that we hand it over to Bell, and presumably Bell does similar testing to make sure that -- I mean they can see whether or not it is in our network.

111 So I think, to a certain extent, both parties are doing, you know, reasonable -- undertaking reasonable efforts to determine where the problems are. As I say, it is in these rather strange cases where they actually get out to the site and there is no fault found that these difficult situations arise.

112 MR. WATSON: May I add something to that?

113 MR. BOWLES: Yes, certainly, Bruce.

114 MR. WATSON: Actually, it might be helpful also just to put this in context to understand the volumes that we are dealing with here. In a typical month, we may have 6,000 end-customers call us with some sort of trouble, and approximately 50 per cent of those we close out to either troubles on our network or troubles that we have identified with the end customers inside wire or equipment.

115 That leaves the other 50 per cent that we open tickets with Bell Canada. So, that is about 3,000 tickets a month we open with Bell Canada for troubles that we think are in the Bell Canada network, you know, in their loop or somewhere in their network.

116 Probably 90 per cent of those are closed... I shouldn't say probably, definitely 90 per cent or more. I only have a month sample, but 90 per cent of those are typically closed to trouble on Bell's side. So, we are talking about 10 per cent of the trouble tickets that are either closed as proven to the end customer's inside wire or equipment in which case we pay the DMC charge on those or that there is no trouble found on those. So, the volume of these has been whittled down to, you know, 100 a month typically.

117 And just to add to Don's comment too on that section 9B of the MALI, we are of the opinion that the language in that section is flexible enough to accommodate our position as well, that we are not being unreasonable in our approach here and that the costs of those repairs may be assessed by the second party, but not definitively. We are of the view that they are assessed to the second party when the trouble is proven to the second party.

118 MR. MAYO: Another point on that is the per cent closed and I know the trouble found is where have the issue. Bell is confirming there is a trouble in the loop when they test it. Because when we report a trouble to Bell, they route it through their test stat first to see if there is trouble. When they roll a truck they are confirming there is a trouble on that loop and, when they get out there, what happened to that trouble.

119 My analysis on this is that it is network problems, because there is a delay, sometimes 24, 36, 48 hours before Bell rolls that truck from the time we report the trouble. They do close out a percentage, probably a higher percentage, on the retail side to no trouble found rolling a truck than we close out on the wholesale side. Bell collects analysis stats on this monthly and they should have those numbers, and we track ours on our side.

120 Plus, there is an element on the network which is the carrier system, it is a non-metallic loop. We do not have access to a test on that. Bell chooses not to give us access to their test equipment at the far end of the remote to be able to test that copper loop towards the customer. So, we have to give that to Bell to do that testing.

121 MR. MILLINGTON: Just so I am sure I understand your numbers, I would just like to go over them again.

122 Based on your one month's data you have about 6,000 complaints per month from customers with respect to line problems. Fifty per cent are dealt with and closed out by Call-Net, 50 per cent are open that you work with with Bell, that would make 3,000. This is the part where I am not sure, what percentage of the 3,000 then are divided between those that are in dispute, which is trouble not found essentially, and what percentage are resolved and you pay the DMC for?

123 MR. WATSON: Let me phrase it this way. Ninety per cent there is no dispute, because Bell has found the trouble on their side and fixes the problem, in which case there is no DMC applied. So, there is 10 per cent that are remaining that either -- I don't have the breakdown with me. Of that 10 per cent a certain fraction are closed to trouble with the end customer's inside wire or our network, but are closed to us. The ones that are closed to us are because of customer equipment or inside wire problem, we pay the DMC on those ones.

124 So, Hubert, do your numbers have that fraction?

125 MR. MAYO: Yes, basically. I did look at the numbers, I looked at the month of October and actually the numbers are a little different for that month. We looked at two months. In November we gave Bell 2,021 troubles -- this was Bell Ontario, we took the Bell Quebec out of it because we have most of the issues with Bell Ontario. We took out the Bell Quebec piece and we gave them 2,021 troubles, which was 40 per cent of our total troubles reported from customers. Of those, nine per cent fell into the no trouble found. There was 85 per cent that Bell cleared through their network and 5.8 per cent we couldn't determine because they never called us to tell us what they did, we didn't get any return from the technician and basically found it was cleared by calling the customer, doing following-up testing. Their 5.8 per cent they closed as no trouble found.

126 Almost 100 per cent of those Bell rolled a truck. They agreed with us there was a fault on that loop, because they dispatched a technician. These are the ones, as we said, we have the issue with, because if you worked in the industry, you would know that the environment... Bell is doing network grooming, they are moving around cabling and things like that. These are the ones that we have the dispute with. Plus another over 5 per cent had no demarcation point. So, in this case, Bells says we are no allowed to disconnect from their network, it is hardwired, and we have to give those to Bell. In those cases, they agree they won't apply the diagnostic maintenance charge, because the customer does not have access to a plug and jack type demarcation.

127 MR. WATSON: Just to clarify, I, independent of what Hubert did, looked at the month of September and then I guess Hubert looked at the month of October. So, we are talking about 10 per cent of all of our end customer troubles are either the fault is proven to the end customer or there is no trouble found in the month of September.

128 MR. MAYO: And, in October, it was 6.4.

129 MR. MILLINGTON: Could you send this by the end of the day in writing, exactly... a breakdown of those troubles and how you resolved them for the two months in question so that we have nice clear stats on this, including what percentage were... what is your starting number, percentage you resolve, percentage you don't resolve and how the other ones ended up being finally worked out, including the ones that Bell resolved because there was no demarcation?

130 MR. BOWLES: Yes, I think we will --

131 QUESTION: I think you have all the numbers.

132 MR. BOWLES: I think we have all the numbers here, we just have to go through it and see --

133 MR. MILLINGTON: Just put them up on a grid for us.

134 MR. BOWLES:  -- by the end of the hearing here. Okay.

135 MR. MILLINGTON: And if you can extrapolate what that would be on an annual basis and I would also like to know -- if you have it here now it would be great, if you don't you could send it with the materials -- how much money are we talking about with respect to what you would end up paying to Bell for those DMCs that you end up having to pay for?

136 MR. BOWLES: We will do so.

137 MR. MILLINGTON: Do you have that now or...?

138 MR. WATSON: We have some of that information available now and some we would have to --

139 MR. MILLINGTON: Well, if it is easy for you to put it together in one place and send us to us by the end of the day, that would be great.

140 MR. WATSON: Okay.

141 MR. BOWLES: Yes, that is fine.

142 MR. MILLINGTON: I would like to talk for a minute about CHCs. Is there a typical CHC? Are they all very very different or can you sort of say a typical CHC would involve X number of lines?

143 MR. BOWLES: I am going to ask Hubert to answer that one:

144 MR. MAYO: Usually there are two types of CHCs. One would be analogue loops, non-bundled loops, which his the majority of them. Usually involves a number of lines, usually a hunt group where we want to make sure all the lines are cut at the same time so that the customer does not lose service or the impact on service is minimal.

145 We want those cut over to make sure they are done at a set time to ensure that the Telco does not miss any of the loops, that we get them all cut. So, we have a call at the beginning, just say okay we have 10 loops we are cutting over, we want you to start and they would follow the process. At the end we would call them back and say okay, everything is okay and drop the call. Basically, we are looking for the tech who has access to the copper loop do that cutover, that could be at the host wire centre or, if there is a remote involved, it would be out at the remote location.

146 Our position is the facilities before that taking it to the remote basically is just extending our dial tone out to that remote location, so Bell can do that ahead of time an they can test it to make sure Sprint's dial tone is there. And the Bell dial tone is in parallel, so they simply take the customer's loop from the Bell dial tone, tie it down on ours, dial the 555, report the number and that completes that transaction, that is the basic process.

147 The only other one we involve would be a PRI, like a digital trunk where we are reporting the telephone numbers only. We build a parallel, we order a new T1 from Bell, we put that in and test and then the process to do then is just to migrate the telephone numbers from the Bell PRI to Call-Net.

148 MR. MILLINGTON: What percentage of CHCs are done within normal working hours?

149 MR. MAYO: A high percentage of them. We do have the stats on that, I don't... Did we bring the --

150 MR. WATSON: 75 to 80.

151 M2:  -- about 75 to 80 per cent are done between the hours of eight and five.

152 MR. MILLINGTON: And, over an annual 12 month period, how many CHCs would be done outside of normal working hours and what cost would be associated with that? Just so we get a how big is the basket kind of answer.

153 MR. WATSON: We have sort of typically seen around $15,000 a month in after hour CHCs, so we are talking over $100,000 but less than $200,000 a year. Some trends would suggest that number is growing, I guess as our market penetration increases.

154 MR. MAYO: As our base grows, that number is going up. We just got the Bell invoice for Ontario in November, it was $22,000. So, because our base is growing, this becomes a bigger expense as we go. So, it started off small, but now it is becoming a significant expense.

155 MR. MILLINGTON: If we turn to --

156 MR. BOWLES: Would you like us to pass on some more detailed stats on that too, at the same time we are doing the other...?

157 MR. MILLINGTON: If you have them, that is great. We are trying to quantify how big the issue is.

158 MR. BOWLES: Obviously, yes. We can put that together too.

159 MR. MILLINGTON: If we turn to Bell Canada's responses to the Commission interrogatories dated 12 November, 2004, Interrogatory No. 4, page 1 of 3, last paragraph on the page... and I will let everybody find that if they like. It is a pretty simple statement, it says Bell Canada asserts that the ILECs and CLECs negotiated the labour rates and the labour rates associated with CHCs were in fact approved in the course of those negotiations and comment would have been part of those negotiations.

160 I am just wondering what your position is with respect to that statement?

161 MR. MAYO: No, we did not agree with the rates. As a matter of fact, as back as the middle of last year we have... we have been disputing these rates from our launch back in 1999/2000. We have been sending those disputes to Bell monthly. Bell has not addressed and come back to us. We did have meetings with Bell early last year and we did raise it there and we did never agree that with these rates were overtime or callouts.

162 MR. BOWLES: I guess, just to clarify, I don't think... Obviously, I mean, Bell has agreements with its employees and they have to charge, you know, certain charges pursuant to those agreements. We are certainly not suggesting that Bell has to rip up its agreements and get new rates. It is more the applicability of the rates and the number of people and the particular overtime rate that is being charged for a particular hot cut that at issue.

163 MR. MILLINGTON: Okay. Finally, on CLCs, in Bell Canada's argument at paragraphs 41 and 42, Bell costs out that a CLC costs or charges come at $240. Is that a number that you would agree with? How many CLCs are performed annually at that rate?

164 MR. WATSON: Go ahead.

165 MR. MAYO: Actually, there is a number of them that are done, we don't keep stats on the total number. There are, I would way very low, as a percentage probably would be less than one per cent or even lower than that. We haven't had any at that rate since the decision -- Bell has agreed to not apply that after the decision 2001, 38 I believe it was, at that rate. So, there is not a high number of those right now. We agree that with the direction, doing cooperative testing, that would apply then. This was where we were looking for something what would be a standard and we did still feel that the $240... we didn't want that to fall into the cooperative testing... going forward.

166 MR. MILLINGTON: Well, Bell says that there haven't been any cooperative testing since that decision and, you know, they are not getting paid for that work. What is your reaction to that statement?

167 MR. MAYO: I noticed in Bell's opening remarks, they said that we are uncooperative and not doing cooperative testing. That is not true. As a matter of fact, in most incidents we don't have access to talk to the frame technician, we usually go through a CHC coordinator or tester and they just tell us there is no dial tone on the pair and give us a new one. That is basically the direction. We don't do cooperative testing to roll a truck, because that would be for two reasons: financially, all our Co-los are unmanned; and the delay to restoring the customer's service.

168 The process is to change the link and, when we reach a percentage of defective links in a Co-lo, then we ask Bell to do cooperative testing and try to recover those links, because we have those links dedicated to our shells, equipment and that is expensive, we want to recover that equipment, put it back in service. We go through that process, we have done a number of those, we didn't start tracking them until this became an issue with this hearing.

169 As a matter of fact, we have done two in the last week in Bell Quebec where binder groups were reversed on the Bell frame colour coding and, in both the incidents, the trouble proved to be the Bell side. We have done a number with Bell where they tell us it is a bad link, we change the link on an individual basis and the trouble follows. Meaning, Bell is not disconnecting their facilities from the connecting link to prove the trouble to us.

170 The way the switch operates is technically it will monitor the loop and if there is some fault on the loop it takes away the dial tone. That is there to protect a switch from back-ups or overloading in case they have a cable cut and those types of things. So, it does a routine audit, comes back round, says oh that fault is restored, I will give the dial tone back.

171 In a lot of cases Bell personnel are going on the link without removing that loop. There is no dial tone there, because the fault on their loop has taken the dial tone away. We have proven this to them in several incidents and we have put those loops back in service with no trouble on them. We would prefer that Bell have a process, if there is no dial tone on the link, they call us. We can put up a test on that loop, we can test metallic, we can see, as Don identified, that we poll dial tone from the shelf and we look out on the loop. If they open that up, we would be able to see if that metallic fault goes away or not, before we change the loop. Bell has refused to do that. They give us a new loop and we will assign it, so that is the reason we go through that process.

172 MR. WATSON: Just for clarity, I think the process that Hubert is describing is something that, you know, we can address in the CISC process on how to, you know, the correct test procedures when there is trouble found. Our point in this trial here is just to get clarification about what the cost would be when there is a cooperative connecting link change, cooperative test carried out, which is generally done in sort of a batch process. So, they are not done on one --

173 MR. MAYO: No, and our position that should be like an hourly rate. We have the two technicians that were there for two hours. More appropriate would be an hourly rate between the two if the fault falls on the Bell side we would bill Bell, if it came on our side they would bill us, not on an individual link basis.

174 MR. MILLINGTON: Mr. Chairman, those are my questions for the applicant.

175 THE CHAIRPERSON: Commissioner, Cram.

176 COMMISSIONER CRAM: Thank you. Do I understand that on the CHCs that the real issue between yourselves and Bell is the 5:00 to 6:00 p.m.?

177 MR. MAYO: That would be one of the issues, there was two. It is between the  --

178 COMMISSIONER CRAM: Yes, and a number of people.

179 MR. MAYO:  -- and a number of people involved.

180 COMMSSIONER CRAM: Who do you think shouldn't be there?

181 MR. MAYO: Well, on our side, we have one person that has access to all assistance, but basically with Bell we feel that at least the person that is swinging the loops is the critical person, because he is the one that is doing the physical work. We have submitted that because of the (inaudible) our coordinator is there because we don't have access to talk directly to those technicians. They have a representative in the office who relays the messages. So, we would agree with two, maximum.

182 COMMISSIONER CRAM: And you heard I think Mr. Abbott talking about since you had the agreement in April of 2004 that there would be no LNP rep there, that you have only sort of asked that one time out of 500.

183 MR. MAYO: Yes, we didn't want to go that way. Basically, that was Bell telling us that if you want that... We had requested that as a default we would not want LNP representation, provided they would provision their switch to eliminate the need for that. There is --

184 COMMISSIONER CRAM: So, this is this 10 digit dialler issue?

185 MR. MAYO: 10 digit dialling. If they use the 10 digit dialing there is no need for the LNP person.

186 MR. WATSON: Otherwise we would have to put on every single LSR that we send to Bell, that person is not required and that would clutter up the LSRs and require, you know, further system development and that sort of thing and we thought that would be easier just to have the default position, no LNP person providing the switch numbering as preconditioned, and move forward in that way.

187 MR. MAYO: Our LSRs are mechanized, so that means that somebody has to kick that in manually, to type that into the remarks, it is not a field on the LSR that we could program to do that. So, once we create an order the LSRs generate it automatically, so it is mechanized. We do not have manually people creating these things. So, for someone remembering to take that out and put it in it is... Like I say, our position and what we requested from Bell was the default be no.

188 COMMISSIONER CRAM: On the DMCs, you said when there is no demarcation procedure or demark point Bell agrees not to charge you?

189 MR. MAYO: That is correct.

190 COMMISSIONER CRAM: What about the non-metallic loop?

191 MR. MAYO: The non-metallic loop, no, they charge it on that. We put those in dispute, because we do not have access for testing, those would be part of the dispute.

192 COMMISSIONER CRAM: Okay. And, are you saying that in all of the ones where a truck has rolled you are in fact saying that they are... your argument is that based on that there was initially trouble --

193 MR. MAY: Yes.

194 COMMISSIONER CRAM:  -- and this ends up in one of the two circumstances Mr. Bowles was talking about where there was trouble, but then there subsequently ended up to be no trouble?

195 MR. MAYO: Correct. And, in some cases on those we have examples we have identified to Bell where they send a technician out and the technician says he has referred it to another department, ie. their cable department or their central office, and then they dispatch a subsequent technician who closed it to no trouble found and they want to bill us for that even when their technicians had identified there is a network problem.

196 Also, on our metallic testing, we have some examples where we showed a loop open in, we test it, it is no loop connected in the office to the connecting link. They closed it to no trouble found, we subsequently test the loop and then it is testing with a loop distance and CPE. So, the test changes on the loop after we have given it to Bell and they have closed their trouble out.

197 COMMISSIONER CRAM: Okay, thank you.

198 COMMISSIONER COLVILLE: Commissioner Demers, any questions for the applicant?

199 COMMISSIONER DEMERS: Thank you, Mr. Chairman. Just on that point, all this has been raised with Bell and there is a dispute. Could you identify rationally, in a sense, the type of disputes that they don't agree with? My understanding is that in some cases they have not charged you for it.

200 MR. MAYO: Yes, we have identified these monthly. We get a monthly invoice from Bell, so we identify those on it with an explanation as to dispute, it is not applicable. Bell did not respond to those. Mid last year we had a meeting with them. Really, we had several meetings going forward from that, but we could not get agreement from Bell on the issue of the no trouble found. We did identify basically the delays from the time we referred trouble to them until they tested to roll a truck.

201 They have an opportunity here, when they are rolling the truck they are agreeing with our decision that there is a problem on the loop. And, in some cases, we gave them detailed spreadsheets with chronic reports on these customers up to 30 days where basically we have given them four or five reports. In some instances they closed previous tickets to the network and then they closed it no trouble found. We just couldn't get them to move on the... they kept referencing the wholesale tariff, that they can charge us for test okays and they are playing, as they reference the tariff 4210 on the retail side, but on the retail said that says the trouble has to be proven to the customer's equipment.

202 COMMISSIONER DEMERS: Thank you. Thank you, Mr. Chair.

203 COMMISSIONER COLVILLE: Counsel, you have no questions for Bell?

204 MR. MILLINGTON: Yes, I definitely have some questions for Bell. I would like to return to your opening statement and your comments with respect to the DMC basically being an interconnection policy issue. I would like to explore that just a little bit more and get your view on an idea, that is that an unbundled loop, a local loop is not really an interconnection service where you are dealing with a carrier on a co-carrier basis, because you are not really exchanging on an equal footing. But rather, when a local exchange carrier, CLEC, is buying a local loop it is acting as a customer buying a network, a discreet network element, very much in the same manner as a large enterprise customer would be buying other network elements. Therefore, the treatment of a CLEC acting customer buying a discreet network element such as an unbundled loop is very much the same as any end customer buying network elements and therefore their treatment should be the same and therefore the service description of DMC should be the same.

205 MR. ABBOTT: I think interconnection at sort of a broad level has to be seen as a continuum and, you know, not all co-carriers are the same. I would say that an unbundled local loop situation falls, you know, around the centre of that continuum. We have to recall that Call-Net is more than just a retail customer, they have a switch co-located at one end, they have their own retail customer at the other end. So, I think we can differentiate it both in relation to the service being purchased... Even if we are looking at, compared to a large enterprise customer who may buy network elements, I think that the unbundled local loop situation is still much more like interconnection than it is like a large enterprise customer.

206 The other characteristic I think we have to look at is the relationships involved. In the context of a retail relationship we have a direct relationship with the end customer, we have the... we being Bell, as the primary responsibility to do the testing. And, in fact, because of that direct relationship we have much greater ability to do that testing and to eliminate either trouble not found situations or customer provided equipment problems.

207 If you look at the other side, this interconnection relationship, we have a relationship with Call-Net, Call-Net takes a discreet piece of network from Bell Canada, puts it into a larger network that they have -- and, as I mentioned, they had services in other facilities -- and then services their end customer with whom Bell Canada has no relationship and no ability to do this sort of primary initial testing.

208 So, both the service being bought is different and the relationships are much different. And I would suggest to you that the relationships and the services are much more like interconnection than they are like retail relationship with a large customer.

209 MR. MILLINGTON: Okay. In your argument dated 23^rd November, 2004 there is, at Attachment 5, a schematic of the network that shows the relationship between the lays of the network elements going from the customer premise through the unbundled loop into the main distribution frame or through the other route. I am just looking at where Bell Canada sits in that paradigm. You have the CLEC being responsible from the co-location back through its own network, Bell Canada sitting in the middle and the CLEC being responsible for the customer premise, both the equipment and the infrastructure or the facilities within the customer premises.

210 When Bell Canada does a DMC for its own end customer isn't the paradigm essentially the same as it is for the CLEC in the sense that it is testing that part of the network that runs out from the central office through, across the copper or the other route, up through the fibre and the remote and the OPI, and then stops again at the customer premise where, again, even in a retail situation the customer premises or in the case of an unbundled loop bought by Call-Net the responsibility ends. I am just looking at that paradigm and wondering to what extent is the testing and the work really different as between those two scenarios?

211 MR. ABBOTT: I would like to pass this question to Mr. Leroux who is much more versed in the technical area. But, there is one thing I can speak to before I pass it to Mr. Leroux and that is the fact that when we are dealing with our own end customer we are able to interact directly with that end customer and, for the most part, eliminate frequently customer provided equipment problems or the trouble isn't found. I mean, we have extensive scripts where they, you know, unplug extensions and faxes and things like that in order to eliminate unnecessary truck rolls. We have a much greater ability to do that than we would in the context of a Call-Net end customer who is not our end customer and we can't really be, you know, calling out to in the first instance. But, perhaps I will let Mr. Leroux dive deeper into your question.

212 MR. LEROUX: Okay, thank you. If I can then refer to the diagram. I will speak first with regards to when we are dealing with our own end customer.

213 All of the equipment belongs to us, the central office is our facility, it is our switch and our testers have the capability to see to the end customer by using the test cabinets and putting the customer's telephone number up on tests so that they can see right through to the end customer. They also communicate with the end customer to, and with them, test and have them remove their sets from the inside wire so that we can determine whether the fault is with the customer provided equipment or not and we can isolate the problem with the customer at that point.

214 So, in the case of our own customer we have end to end visibility to the service that we are providing to the customer.

215 In the case of an unbundled loop situation where we are providing an unbundled loop to Call-Net, we do not have that capability. It is not our switch, the customer is not on our switch any longer and we only perform or provide a piece of the total network and that piece is the unbundled loop. In order to be able to test that unbundled loop, we need to have a central office technician put up a two-way connecting link, if I can call it that... I won't call it connecting link, a two-way cord so that it allows our tester to look out on the cable pair out to the customer end.

216 So, the difference between our own customer and when it is an unbundled loop that is leased to Call-Net, is there is the need for the central office technician to put up that two-way. Because without putting up that two-way the tester has no means of being able to test that unbundled loop. With the two-way, he is able to look towards, in this case, Call-Net's equipment as well as towards the end customer equipment.

217 MR. MILLINGTON: When this two-way cord is installed you can then see right to the customer premise and you can tell that your loop is okay then? You can't see beyond the demark point I assume?

218 MR. LEROUX: Absolutely, we can see through the demark if everything is still connected and we can see the customer sets if they are in fact plugged into the jack. So, we can determine, you know, we can see right through to the end customer equipment. What we can't determine is whether the trouble is with the end customer equipment or on the loop. That should have been done by Call-Net with their scripting with their end customer. They could have determined if the trouble is with the customer provided equipment or the inside wire. We can't determine that unless we roll a truck.

219 MR. MILLINGTON: But, what I am confused with is it is clearly not in Call-Net's interest to get a DMC charge which isn't validly found within either, you know, which doesn't belong to their part of the network, either on the customer side or their own side. And we have to assume that Call-Net is doing the testing on their part of the network prior to calling and, in fact, they indicated that they resolve roughly 50% of those calls before they bring Bell into the picture, and that would also involve dealing with their own end customers.

220 So, what is hard for me to understand is if that is the case, why is it that there is such a high percentage of faults that continue once they have tested both their end and the customer premise end? I mean, does this track with your own statistics?

221 MR. ABBOTT: If I might comment briefly on that and perhaps give Mr. Leroux a chance as well. I think you probably put your finger on something, in that our statistics indicate that... A DMC normally involves a truck roll for Bell, and about 20 per cent of the time when we roll a truck we determine the problem to be customer provided equipment. That number should be zero if Call-Net was doing proper testing. And I think probably the gap in Call-Net's testing is that they don't bother rolling a truck, they would rather have Bell do that for them. And, Mr. Watson has indicated that there is a certain amount of customer provided equipment faults that they end up paying out on. The point is, if they did proper testing... Call-Net did proper testing and rolled a truck, they would identify the situations where there is customer provided equipment at fault and they would never refer them to Bell Canada. We can only infer that they don't bother doing this truck roll, they would much rather have Bell Canada do it, and that is what is giving rise to a lot of these charges.

222 MR. MILLINGTON: So, are your stats different in terms of faults that are associated with customer premise equipment than Call-Net's? Like, when you sort out your own customers and you believe it is the customer premise equipment? Are you able to resolve them using your protocols and the questions of unplugging and plugging again?

223 MR. ABBOTT: I think I would have to leave that particular question either to Mr. Leroux or Mr. Glazer.

224 MR. LEROUX: Certainly, our stats are somewhat different than what Call-Net has presented earlier. Call-Net's stats are based on October/November results and I think September as well. We have status up to I believe July of this year where we have tracked, for instance, the number of troubles that we proved to be towards the CPE or inside wire. And on those, we found that over 20 per cent were in fact CPE or inside wire troubles.

225 MR. ABBOTT: I am not sure if we have answered your question yet. Is your question to contrast percentage of CPE trouble results on the wholesale side versus our retail customer, is that your question?

226 MR. MILLINGTON: Well, I guess I am troubled by the fact that there is a category of faults that seem to be present and then disappear and nobody knows where the trouble was resident when it was there. There seems to be some difference in terms of the way the Call-Net arrives at -- or the results of Call-Net's statistics end up being different from Bell's statistics when in fact they should be -- if all things being equal, should be roughly the same that customers are making mistakes ex percentage of time.

227 I mean, I am not going to -- I would think it would be unlikely that Bell Canada's customers and Call-Net customers would be significantly different in terms of being the cause of the problem. So if we will accept that as a commonsense proposition, then, the faults should generally fall statistically into the same sort of buckets, and it doesn't seem to be the case and I am looking for some help in terms of trying to understand why that isn't the case.

228 MR. ABBOTT: Okay. As I believe I understand your question, you are particularly focussing on situations where there is no trouble found when Bell Canada does the testing?

229 In fact, I believe our statistics more or less match on that particular subset. I believe I heard Mr. Watson indicate that around 5 per cent or less end up in trouble, not found in one of his answers, and that would roughly accord with our experience. Do DMC work about 5 per cent of the time, perhaps a bit less? We simply find absolutely no trouble. We can't find it on our network and we don't -- we are sure to be able to find the presence of any trouble anywhere on the network end to end.

230 There are a number of possible causes. Certainly, as suggested by Call-Net, there may be an intermittent fault in the Bell Canada network caused by, say, environmental factors. But what I would like to point out there is that where there are repeated faults on the same circuit, Bell Canada refunds the DMC.

231 When those are brought to our attention by Call-Net -- and Call-Net is the only party that can really track those because they know the single circuit and they can say, "Gosh, we have gotten six complaints in two months, there must be something wrong with the cabling in Bell's local loop". When they bring those to our attention, we refund those. We refund the DMC because you can pretty well infer that there is an environmental problem.

232 However, I think it's important not to focus too heavily on the environmental issues or, say, the possibility of installation in the rare instance where there might be installation repair work by Bell that could cause a short outage.

233 I think the real factor to concentrate on here is that there are a number of other causes for intermittent problems or transfer problems that would come from either Call-Net's facilities or the customer-provided equipment. If the dog knocks the extension off the phone downstairs, the customer thinks it doesn't work, they phone in a problem, they go downstairs later on and find the phone off the hook and it goes back on and the problem disappeared.

234 There are a number of situations -- I mean, it is equally if not more likely that those transitory, truly transitory situations, arise out of Call-Net's portion of the network. The other situations that arise out of Bell's, if we can track them as truly intermittent, we refund.

235 MR. MILLINGTON: Okay.

236 MR. ABBOTT: Actually, was there anything anyone wanted to add to that?

237 MR. MILLINGTON: I would like to move on to CHCs now. In the sections of the collective agreements that Bell filed in response to our interrogatory -- I think it was number 3 -- there was references to the scheduled work week and overtime work. The normal workday is between 8:00 and 5:00, and we talked about the contiguous hours of 7:00 to 8:00 and 5:00 to 6:00.

238 Is there any flexibility in those collective agreements or do any of your craft workers work shifts that overlap the normal working hours such that there might be a group that starts at, say, lunchtime, 12:00, and works till 8:00 p.m. or is there a group that starts earlier in the day and finishes at noon, such that you could allocate the work to people who are on normal work hours, as defined in that collective agreement such that the overtime rates would not apply?

239 MR. ABBOTT: I will ask Mr. Glazer to respond to that.

240 MR. MILLINGTON: He is still working on a question from Mr. Leroux so he doesn't feel --

241 MR. GLAZER: I think the thing to keep in mind about CHCs is the variability of them, the number of people that you need, the types of circumstances and the customers involved, and the fact that they occur over a wide geography for that matter. To be able to match staffing, if you describe it in sort of a shift-work type fashion, to the ad hoc receipts of a request for a CHC across our territory would be a very, very difficult thing to match up.

242 So I think that, and we have heard some numbers talked about here today, and our experience you know over the last number of months, approximately 500 or more CHCs, if you take that across the territory where Call-Net is serving and try and match those according to their requirements for the specific time of day, the specific type of staffing required, that it would be very difficult to do that.

243 So I think under the circumstances what we are trying to do is, I think, the most reasonable possible.

244 MR. MILLINGTON: But there are shifts that overlap the 8:00 to 5:00 working day?

245 MR. GOOLEY: I was waiting for a chance to get to use this mike. I knew I would get a chance if I waited long enough.

246 It is true that Bell doesn't run staff just 8:00 to 5:00 but we do, and as a general purpose, we run the company, maintaining 8:00 to 5:00 as normal working days for the majority of work. Clearly, there is staff on after hours and you would find somebody at Bell 7/24 365 days a year, but these people aren't in to do installation work and what might be deemed as "optional" work. They are in to do maintenance level work to ensure that the network is up and stable and running. So the staffing is set 8:00 to 5:00 for the majority of work functions that occur.

247 I think it is just -- I would also like to point out that it was mentioned earlier the 5:00 to 6:00, being one area of contention, and Bell has agreed with Call-Net at the April sessions that 5:00 to 6:00 would be charged as continuous overtime. So I just wanted to make sure that's clear that it is after 6:00 that we have deemed to be call out.

248 MR. MILLINGTON: Well, when I read the argument, Bell Canada's argument on that point, it did seem to me that that's what you were saying, that it was supposed to be contiguous, you were including both ends, the morning and the evening. But I don't know, maybe in their reply comments they might have some positions on that.

249 I wanted to get the same kind of stats from Bell with respect to the CHCs and how many lines and how much money and how much would be in dispute as a percentage, if you can provide that same sort of data? We have got some of it in confidence but I would like to be able to deal with it outside of that framework.

250 MR. ABBOTT: Certainly. We were hoping that you would request that. We will be more than happy to provide our breakdown in relation to the types of problems that come up in relation to DMCs. I believe there was a grid you asked for in relation to CLCs and cooperative tests. We have all sorts of tables we would be more than pleased to provide you.

251 MR. MILLINGTON: Great. My final question is to pick up on what Commissioner Cram raised, which has to do with the local number portability question.

252 Call-Net in its reply, dated October 7^th, 2004 in paragraph 3, page 8, suggested that you could use a 10-digit LNP trigger, thereby removing the need for an LNP RIP. I am not sure what all that means, but is that a viable solution to the LNP personnel being required for the CHCs?

253 MR. ABBOTT: Without a shadow of a doubt, this is a question for Mr. Leroux.

254 MR. LEROUX: Yes, thank you. If I can refer you to our November 26 interrog number 7?

255 MR. MILLIONGTON: Yes.

256 MR. LEROUX: And if I can take you -- ask you to go to page 3 of 6? This is near where --halfway through the page there where it talks about work completed at the time of a CHC. It is referring here to a port only, so there is only a telephone number porting. There are no unbundled loop facilities involved in this particular hot cut. We in fact do put the ten-digit trigger on the telephone number that is being ported to Call-Net, okay, and that is done prior to CHC.

257 Call-Net is also indicating that if we did that all the time there would be no need to have the LNP personnel there.

258 If I can take you to bullet number 4, and bullet 4 indicates that -- and this is part of our local procedures:

"The CLEC will call the Local Migration Centre to advise that the porting has been completed along with the outcome of the activation and test results, and will request to have the numbers removed from Bell Canada's digital switch." (As read)

259 Well, the removal of the telephone numbers from our switch is performed by the LNP admin folks. Without performing that activity, there may be instances where the services associated with the service being provided by Call-Net may not work with some of the functions associated with that particular service they are providing, because that number is still resident in our switch and until we remove it from our switch, all those functions may not work.

260 MR. MILLINGTON: Just so that I understand, in some cases then you can use the 10 digits and some cases you can't?

261 MR. LEROUX: In all cases the 10-digit trigger would be placed on a telephone number that is being ported to another carrier.

262 MR. MILLINGTON: But the LNP RIP is still required?

263 MR. LEROUX: To remove the number from the switch once the telephone number has been accepted by the carrier and then we get a notification by the LNP database that identifies to us that the number has been taken by the other carrier. That's when we would perform the removal of the telephone number from the switch.

264 MR. ABBOTT: I would like to add to that. There is actually another sort of important element, which is the LNP acts as a safety net. If we are going to swing the number back, as described by Call-Net, it can only be swung back without LNP if the number is still on the DMS switch. Once it has been removed only the LNP person can add it back onto the switch.

265 So if the CHC fails, if for some reason Call-Net isn't able to complete it and they don't want to leave their end customer without service for 12, 24 hours, however long it would take, it's necessary for the LNP person to be there, to swing the numbers back. You can't just rip off the jumpers or switch them. The number has to go back on the DMS.

266 In a sense, the LNP is a very important safety net. It's a bit like an insurance policy and, you know, no one likes to pay for house insurance except when their house is on fire. We have the LNP there as an insurance policy for the CLECs, and the fact that they have not decided to do without the LNP suggests that they believe it's a very good insurance policy.

267 As previously discussed, we have created an option that if a CLEC, Call-Net for example, doesn't want the LNP there or ought not to have them there, they have to indicate that on the local service request form. I don't think that's a particularly high burden. I know that Call-Net has indicated they would like to have that as a default, that the LNP is not there.

268 The reality is that Bell Canada serves a number -- the CSG side serves a number of different customers and in order to serve everybody consistently and fairly we need consistent practices. We can't have a default for Call-Net and then all the other CLECs definitely don't want the default. So we need to try and keep our internal processes as consistent as possible and having the LNP there, which is what the majority of the industry wants, is the best practice.

269 I do admit that we do create an exception, that if someone writes on the LSR, "Don't have LNP", then we will take it out, but that's sort of -- rather than creating different processes for different CLECs, that is an exception that any CLEC can exercise. No one does, but anybody could. I think the facts speak for themselves. In a sense you have got to walk the talk. If you don't want to -- and it's fine to complain about the LNP being there but if you are not willing to turn down the LNP when you are given the option, I think that has to speak for itself.

270 MR. MILLINGTON: Those are my questions, Mr. Chairman.

271 COMMISSIONER COLVILLE: Thank you, Counsel.

272 Commissioner Cram.

273 COMMISSIONER CRAM: Thank you.

274 I just wanted to follow up, Mr. Abbott, on the LNP person. You said if the switch fails you need an LNP guy there -- person there. What is the percentage of switches failing?

275 MR. ABBOTT: I am sorry, it is not the switch that fails --

276 COMMISSIONER CRAM: It's --

277 MR. ABBOTT: Yes, sorry, the migration of the service.

278 I think I am getting a nod "no" from the other end of the table. Mr. Glazer, can you?

279 MR. GLAZER: I was just going to say we don't have any statistics on that in particular but, I guess, in this case you would say that whenever it does occur, however frequently or rare that, again, back I think to Mr. Abbott's point, is that it is really an insurance situation where you want to have somebody to be able to look after the customer's needs, ensure that they are not out of service and be able to put them back into service on one network versus the other.

280 COMMISSIONER CRAM: Mr. Leroux, I have been reading bullet number 4 and to the porting in this interrogatory that you referred to. Help me with this.

281 Is an LNP person limited -- but why couldn't the technician do this, the same technician that is there at any time anyway? Is there an LNP union that I am unaware of?

--- Laughter / Rires

282 MR. LEROUX: Well, certainly, there are two different unions, that the LNP admin person is under a different union contract than the central office technician. It is a function that is performed -- it's an administrative function that's performed by the LNP group and they have been mandated or it's part of their instructions, part of their work program to perform those activities. They get the service order and that's part of their job function, is to do the 10-digit trigger prior to the due date. It is the technician, in this case the frame technician's duty, to swing the jumpers and do the framework and do the testing and report to completion to the carrier that has migrated the service.

283 COMMISSIONER CRAM: So is it a union, actual contractual issue that would prohibit Bell from having the technician to back up porting at the time of a hot cut? Is that it?

284 MR. GOOLEY: If I could just help on this question, Commissioner Cram?

285 What it comes down to, really, is there is a lot of functions where it would seem one person could just add it to make it work effectively. What we have to keep in mind is with over 30,000 personnel at Bell Canada and handling 600,000 to a million loops a year, let alone all the other services, it really is important to have people specialized in area performance, and the LNP team is specialized in working the local number portability databases, getting numbers in for the port and ensuring they go successfully. The technicians are trained specifically to be able to do the work inside the central office, moving the wires and ensuring that part works.

286 So you could look at it and say, "Well, surely one person could add one more thing and do it". It's just simply the number of times repetitively these things have to occur and the skill sets required and the training required, that it's just not feasible to cross-functionally train everyone at Bell Canada for all functions.

287 COMMISSIONER CRAM: The only reason I raise it is that this was the one issue that I believe Mr. Leroux said that's why we needed to have or you needed to have the LNP person there. So it doesn't seem to me that retraining one person or a couple of technicians to do one more thing, because it's particularly that's what he said. That was all I was trying to do.

288 MR. GOOLEY: And that's fine. It is just important to note too these technicians, they are scattered everywhere. If all the hot cuts were always going to be in the same CO again it may be possible, but they are scattered throughout the two provinces.

289 COMMISSIONER CRAM: Yes. On DMC I noticed that you were talking, and I had it marked, in your argument of 23 November at page 5, about wholesale and retail. At paragraph 22 you talk about the cost of testing and the retail tariff being recovered in the local access rate. That's about line 4 -- oh, sorry, 27 September '04. I flipped over -- yes, that's my fault.

290 And you talk about the cost of testing primarily related in local access rate. Really, the cost of testing and the local access rate is probably the maintenance amount that is put in the local access?

291 So that's on --

292 MR. ABBOTT: I believe you are correct. I am just casting my mind back --

293 COMMISSIONER CRAM: It would be maintenance.

294 MR. ABBOTT:  -- 12 months. Yes, I believe that's in relation to the local rate that a retail customer would pay.

295 COMMISSIONER CRAM: Yes. And what is the difference between that and 10 per cent maintenance in local loop costs? How can you differentiate that for me, that therefore the 10 per cent maintenance, which is 10 per cent capital costs in the local loop costing; wouldn't that perform the same objective?

296 MR. ABBOTT: I regret to say I don't have the detailed costing breakdown for those two portions. I don't have that with me, but I think something to keep in mind is that in fact the DMC testing is a different function as between retail and wholesale. There are, as Mr. Leroux described, there is a fair bit more going on when we do even just the CO testing. Forget about the truck roll in a DMC, but even just the CO testing is significantly different from what is done on the retail side.

297 Similarly, we have a much greater ability to eliminate situations where there is customer-provided equipment at fault or no trouble found before we roll -- a truck rolls. So on the retail side our costs generally would be lower.

298 I think what we are looking at here is -- I mean, there is a maintenance element on the local loop, but there is -- doing DMC is incrementally more expensive on the wholesale side because of the extra work that has to be done.

299 And I guess Mr. -- the short answer is, it's not captured in those costs.

300 COMMISSIONER CRAM: What maintenance is captured in those costs? Because I mean, if I am paying the same if I am paying for a local line, I expect to have a line that works. I sort of think that Call-Net would kind of expect that their lines would work too.

301 MR. ABBOTT: That is fair enough. They would expect that their lines would work.

302 I think one important thing to us is the difference between the two rates. I mean, your local loop rate is, I guess, between $20 and $30 a month depending on where you are -- I am sorry, your primary exchange service between $20 and $30, $20 and $40 really, depending on which rate band you are in, whereas the local loop, I think, rings in somewhere around $9, something like that. It's a significantly lesser rate and, as I described earlier, they are two very different services.

303 A Bell Canada retail customer is purchasing end-to-end functionality where Bell is responsible for everything. They expect and are entitled to a line that works as you describe. Call-Net is buying a network element, a trunk that they put into a larger network with a lot of different facilities and equipment on it that we have no idea about, or very little idea about, and no control over. So the expectations have to be quite different.

304 I mean, we are responsible not for ensuring that the Call-Net's network works end to end and that their end customer is happy. We are responsible, Bell Canada is responsible, for ensuring that the network element we provide is trouble free.

305 When we talk about no trouble on the local loop, specifically as it is indicated in the wholesale -- the access services tariff DMC -- local loop is defined as Bell Canada's portion of the network.

306 So what we are saying is if the trouble -- you know, Call-Net has referred a trouble to us. If that trouble is not on our portion of the network, if we have to go out and do testing and roll a truck, visit the customer premises, which Call-Net should have done, if we have to do that and it turns out that there is no trouble on our loop, that could mean that the trouble is on the customer-provided equipment or somewhere else on the Call-Net network, or the trouble disappeared because someone put the extension back on the hook. If there is no trouble, if we do testing and there is no trouble on our portion of what we provided to Call-Net and we have sort of basically wasted our time going out there, they should be paying the diagnostic maintenance charge.

307 COMMISSIONER CRAM: You can say the same, though, about somebody's dog knocking over the basement phone, I mean, if they were just a normal local access person and that, of course, they are totally different?

308 MR. ABBOTT: If I understand your question, you are saying that's correct, the extension I suppose could be --

309 COMMISSIONER CRAM: Yes.

310 MR. ABBOTT:  -- knocked off on either side; that's correct.

311 COMMISSIONER CRAM: I am sorry, and I have got a very simple mind. I heard Call-Net saying that if there is trouble on your line, on your portion of the line, a truck has to roll. Then I heard you, Mr. Abbott, saying DMC normally involves Bell running a truck.

312 There is a test, though, first, isn't there, Mr. Leroux? There is a test first to go from your CO to wherever Call-Net hooks in?

313 MR. LEROUX: Yes, that is correct. On receipt of trouble from Call-Net we would send that trouble to our tester and the tester would perform a test. Based on those test results, the tester will either decide a dispatch and a roll of a truck is necessary to either prove the trouble is to a CPE or inside wire or prove that it is on the unbundled loop portion of the network.

314 Certainly, in cases where there is a carrier involved and we provide the unbundled loop over carrier, we have the same inability as Call-Net to test that unbundled loop through the carrier and we need to dispatch a technician to the end customer's premise to determine where the trouble is.

315 So our point here is that in cases where a carrier is involved, certainly Call-Net could have dispatched a technician first to determine if the trouble was towards inside wires or CPE rather than us doing it. We are now performing that test on their behalf, and that's why we feel it is necessary to charge a DMC to recover our costs.

316 COMMISSIONER CRAM: Okay. Thank you.

317 COMMISSIONER COLVILLE: Commissioner Demers.

318 COMMISSIONER DEMERS: No, Mr. Chairman. Mr. Leroux answered my question.

319 COMMISSIONER COLVILLE: Thank you. Well, then we will move to questions by the parties.

320 Mr. Bowles, you have a maximum of 20 minutes.

321 MR. BOWLES: Thank you, Mr. Chairman.

322 Just a few things I would like to clear up. There was one happy thing you said, and if you could refer to your interrogatory number 5, please?

323 This talks about the appropriate overtime rate. It says in here that you have, as a result of various discussions we have had, you did agree that work performed in the 7:00 to 8:00 time period would be billed as continuous overtime. It says here "or at 5:00 p.m." but I think I heard -- I can't remember who, Mr. Abbott, I believe, or Mr. Leroux say that -- sorry -- say that in time period from 5:00 to 6:00 the continuous overtime rate would apply. I am just a bit --

324 MR. ABBOTT: If I could just clarify that?

325 MR. BOWLES: Thank you.

326 MR. ABBOTT: Yes. The overtime -- the fascinating world of Bell labour rates I was introduced to about three months ago and it took me awhile to wrap my head around it.

327 I think what it comes down to is that the tariff clearly indicates three rates. There is the rate for regular time. There is the rate for continuous overtime, and that means a situation where the overtime starts right at the end of the business day or ends right at the end of the business day. So if you had an overtime period that ended, say, a rate at 8:00 o'clock, that would be continuous with the normal workday.

328 Similarly, if you had an overtime period that started rate at 5:00 o'clock and went to 6:00 or 7:00 or 8:00 that would also be continuous overtime and that's at the $115 rate. As soon as you have a break between the normal business hours and when the overtime starts, that's call-out overtime.

329 So to get to your specific question, if the work starts at 5:00 o'clock then it's continuous overtime. If it starts at 5:30 it's call-out overtime. That's the difference. I believe it has been suggested in a number of meetings to Call-Net that you may just wish -- if you want to start it at 5:15 or 5:05 or 5:30, it might make sense to schedule it for 5:00 o'clock and just pay the continuous overtime rate as opposed to the minimum charged that is set out of 310 for a call-out overtime for a minimum of three hours that is set out in the tariff.

330 MR. BOWLES: Well, I guess to a certain extent that is somewhat equivalent to what we are suggesting, is that if something is scheduled at 5:15, rather than having it starting -- ordering it up at 5:00 and having people sitting around and perhaps leaving when they don't get anything happening at 5:00 it would discharge the time rate.

331 But for clarification you are suggesting -- your position is still that if, for example, something is scheduled at 5:30 that would be at the call-out rate?

332 MR. ABBOTT: I guess to me that appears self-evident and that it's not continuous with regular business hours.

333 MR. BOWLES: Okay. But if something is requested at 7:00 a.m., for example, you would charge the continuous rate?

334 MR. ABBOTT: Because there is a minimum one-hour labour rate and that would end at 8:00 at the very least. Well, it would have to end at 8:00. So it is continuously -- given the way the tariff is structured, if we were to provide the continuous overtime rate in a situation where it is not continuous overtime, it would be offside our tariff. We would be in breach if we did anything else for a 5:30 start.

335 MR. BOWLES: Oh, well, thank goodness we still have a dispute, contrary to what I thought you had earlier said.

--- Laughter / Rires

336 MR. BOWLES: I just want to go over one other thing with, I guess, with the DMC and the testing. Just to make it clear, we -- first of all, you have implied that we don't do very good testing. Do you in fact know what our testing procedures are?

337 MR. ABBOTT: No, but we are aware of the results, that 20 per cent of the time when Call-Net is supposed to have done its own testing, it's supposed to have eliminated the customer-provided equipment and its own facilities as the cause of the problem and identified that the problem still exists. That's what Call-Net should have done. Presumed to the MALI that Call-Net agreed to and the ITMG which Call-NET agreed to, those are your responsibilities.

338 But yet, Bell Canada still finds that 20 per cent of the time when it rolls a truck in response to Call-Net after Call-Net has allegedly tested, we find customer-provided equipment at fault. I know we have slightly different stats but even Mr. Watson indicated that there is a significant percentage of situations where it is Call-Net's end customers' -- customer-provided equipment at fault. Quite frankly, it's a little difficult to understand how that could happen if Call-Net was doing proper testing, if it was rolling a truck to the end customer and doing a proper testing.

339 MR. BOWLES: I will reserve commenting on that until final comments.

340 So when you get a travel ticket from us on a loop, did I understand that you test that loop as well? You test from the --

341 MR. LEROUX: Yes, definitely. When we receive that travel it does go to a tester and the tester will perform the test.

342 MR. BOWLES: So before you roll a truck, you yourself have verified that either something with the loop or the customer equipment is at fault.

343 MR. ABBOTT: I don't think that is necessarily the case and the stats that we will submit will indicate that on average for -- I believe it's for every 100 tickets in, there are about 20 that are resolved by central office technician testing and then there are another 80 where either we can't find the problem that you have reported is there, or we can't determine exactly where it is, perhaps because of a remote. So 80 per cent of it -- so for 80 of them we roll a truck, and out of those 80 about 20 times we find it is CPE and about another 3 or 4 per cent we just can't find any problems.

344 Actually, this goes to something that Mr. Mayo said earlier, that because we roll a truck we must have seen a problem and that is proof positive that Bell sees a problem there and therefore there should be no "trouble not found". That is simply incorrect.

345 MR. BOWLES: Well, now I am confused. You say you test and if you see a problem you roll a truck.

346 MR. ABBOTT: I don't think that's what we said.

347 MR. BOWLES: Well, you are not going to tell me you roll a truck if you don't see a problem. So I am confused.

348 MR. LEROUX: Well, sorry. In a case when the unbundled loop is in fact provisioned over a carrier, we have no choice but to roll a truck. So once it is determined that the unbundled loop is provisioned over a carrier, we will roll a truck, because we are unable to determine where the trouble is. We have no testing capability in a lot of our remotes to be able to test out to the end customer, so we have to roll a truck.

349 MR. MAYO: Mr. Abbott, you said that about 20 per cent of the troubles we give you are either proved as CPE and another 3 or 4 per cent no trouble found. What are your stats on the retail side for where you roll a truck and no trouble found or proved CPE? What percentage of your retail troubles would fall into that, just to compare your test results to ours.

350 MR. ABBOTT: I am afraid we don't have those comparative stats for retail.

351 MR. MAYO: I know Bell tracks that monthly. In my experience working with Bell that was something we tracked religiously and you have those in your operation.

352 MR. ABBOTT: Unless you are planning on giving evidence on behalf of Bell, I think our evidence is that those documents are not currently with us right now.

353 MR. MAYO: I just want to ask a couple of questions on the LNP. You indicated the LNP person was there for insurance against something failing. Isn't it really insurance against the person for not activating a trigger? Because if the trigger is active you could leave that number in your switch forever and it would have no impact, report numbers from other CLECs and basically they said a trigger is active, you can take the lines whenever you want. You could take those numbers out next week, next month and it would have no impact?

354 MR. LEROUX: Yes, you are probably correct that it has no impact but, quite frankly, the order is not complete until we have removed the telephone numbers from the switch and we have a requirement to complete the order. We can't leave the order in suspension until we do that work.

355 MR. MAYO: But don't we pay for the order costs under the LSRs? Could that not be done under regularly scheduled hours the next day or the next business day?

356 MR. LEROUX: That is work that is normally performed once you have accepted the telephone number and we have notification from the LNP administration database that you have taken a number and that's when our work could in fact be performed. And if our LNP personnel are there they will perform that work.

357 MR. MAYO: We would be okay with you doing that the next day.

358 MR. GOOLEY: I guess -- I mean, Hubert, what it comes down to is we have made the option available to not have the LNP present. We do use the ten-digit trigger and we do put them on and populate them. If the LNP is not required it's simply a matter of stating on the LSR you don't require the LNP personnel.

359 MR. MAYO: As I identified, our LSRs are automated, so that would be manual intervention and we would have to do some systems updates on the LSR sub-system to intercept those LSRs. We would prefer, as we stated, that our default position not to have it, and without having to do any development changes through programming and not to be able to implement that.

360 MR. GOOLEY: I'm sorry, is there a question?

361 MR. BOWLES: There is no question in there.

362 MR. GLAZER: If I can just add, I think there are many other situations where there are remarks that are required on LSRs that are ad hoc in nature and I think you have that capability today to put those on there. I'm not sure I see the distinction between indicating when LNP is not required, versus telling us there is DSL on the line or that there is -- the customer has specific requirements of one sort or another.

363 MR. MAYO: That is true, that there are exceptions on it, but we like to keep it to the minimum. Our preference would be to not have to, but to avoid remarks whenever possible.

364 COMMISSIONER COLVILLE: Mr. Bowles.

365 MR. BOWLES: I think that's all. Thank you very much.

366 COMMISSIONER COLVILLE: That's all on any of the three items?

367 MR. BOWLES: Yes.

368 COMMISSIONER COLVILLE: Okay. Mr. Abbott.

369 MR. ABBOTT: I am just going to take a second to reflect on what has been provided so far.

--- Pause

370 MR. ABBOTT: Mr. Bowles, would you agree that when a Call-Net end-customer reports a problem, Call-Net has the obligation to do reasonable testing and to verify that the problem exists and if possible to locate the problem before calling Bell Canada?

371 MR. BOWLES: Absolutely.

372 MR. ABBOTT: And does Call-Net always fulfil its obligation to do reasonable testing?

373 MR. BOWLES: Yes, we do. As a matter of fact, it's hard to imagine what our interests would be in not doing testing. I mean, it's obvious that if we don't test properly and we end up having -- calling Bell to resolve some of these problems without doing testing, all we are doing is inviting the -- incurring this DMC charge. So it's at our strong interest to try to -- go to as great a length as possible to resolve the problem before we get in touch with you.

374 As I said, obviously, and you know very well that Bell obviously has the same problems. Sometimes it is difficult to tell if the problem is the loop or the customer's premises' equipment. It requires taking the customer through a script which we do, and I would be surprised if it was far different than the script that you people use to deal with the same problem.

375 But absolutely, we test in all cases where we can. There is the case with the carrier systems that we both have a problem with but we go through as extensive testing as possible to make sure we don't -- we aren't going to be hit with these charges.

376 MR. ABBOTT: Now, when a Call-Net end-customer reports a trouble and Call-Net's testing, initial testing cannot locate the problem, does Call-Net always roll the truck to the customer premises so they can eliminate customer-provided equipment as the problem?

377 MR. BOWLES: I don't think...

378 MR. MAYO: Not in all cases. We look at the test results. If it is in the case like it is a receiver off hook or something like that, basically, we have a script we go through. We ask the customer, do you have -- if Bell has identified where the demarc is, we ask the customer to disconnect the inside wire at the demarc. We then conduct a metallic test. If the fault is still on the loop, we refer it out to Bell.

379 We also look at the type of test. If it has got a voltage on it and the customer has only got one line, that voltage would be outside the house, indicating a loop.

380 We also have open in the wire centre. We can also tell if one side of the loop is longer than the other, indicating it is either open on the ring or the tip side. So we can measure the distance from the wire centre out to the customer and back. So that would tell us that that line is open, say, 200 metres from the house or 300 metres from the Bell CO on one side, and the other side, the loop is going 2000 metres. So we would say, well, that is a cable trouble.

381 So we do do some analysis. We have testers who are experienced in that field at being able to troubleshoot. We go through scripting with the customer on disconnecting all CPE and -- so yes, we do due diligence on that.

382 MR. ABBOTT: Thank you.

383 Now, I am interested in the very first thing you said, which is that you don't roll a truck in all circumstances.

384 MR. MAYO: No. If you look at the stats, about 90 per cent of the troubles are cleared in Bell's network. So if we were to roll a truck, we would be going out 90 per cent of the time. That would also delay us getting that trouble to Bell 90 per cent of the time because we have a 24- or 48-hour window that Bell requires us to do it.

385 So we -- through the analysis and testing, we will do that. So that is the position we take.

386 MR. ABBOTT: So basically what it comes down to is Call-Net cannot in all situations be bothered to roll a truck in response to its own end-customer's problem but it is perfectly happy and expects Bell Canada to roll a truck to narrow down the problem and prove it to CPE or somewhere else; is that...

387 MR. MAYO: No.

388 MR. ABBOTT: That sounds like your evidence.

389 MR. MAYO: No, that is not what we are saying. Basically, if I know it is a cable trouble or the loop is open in the Bell CO, what would be the point in rolling a truck? It is just going to delay the recovery on that customer's loop. I will have to give it to you in the end.

390 MR. ABBOTT: Mr. Watson has indicated that there are a number of situations where Bell rolls a truck, does the testing and improves to the customer-provided equipment; is that not correct?

391 MR. MAYO: That is correct.

392 MR. ABBOTT: And if Call-Net did its own testing and rolled the truck to the end premises, as it expects Bell to, to sectionalize the problem, Call-Net would have found those situations were in the CPE; isn't that correct?

393 MR. MAYO: That is correct.

394 MR. ABBOTT: Thank you.

395 Mr. Bowles, can I turn you to paragraph 11 of your initial Application, please?

396 Now, at paragraph 11 of your initial Application dated August 27th, you have a quote from Decision 2004-4. I believe it is from paragraph 68 of that decision.

397 Is it correct that this quote that you have provided is there to support the idea that retail and wholesale customers should be treated the same way?

398 MR. WATSON: I would say yes, it is true in this particular instance of the DMC charge.

399 MR. ABBOTT: Okay. Now, are you aware that the quote you are using here for that rather broad principle, that retail and wholesale customers should be treated the same way, that it comes from a section of that decision that is strictly limited to the scheduling of appointments for installation and repair?

400 MR. WATSON: Well, I think the -- I am not a hundred per cent sure, to be honest with you, on the context of that. I thought, you know, reading it as it is stated, clearly, it talks about installation -- yes, you are right -- installation and repair appointments. Fair enough.

401 MR. ABBOTT: And beyond that, would you agree with me that it comes from a section of the decision titled "Scheduling of Service Calls to CLEC Customers"?

402 MR. WATSON: I trust you are correct.

403 MR. ABBOTT: Okay. Now, there is nothing in this quote that I can see -- and perhaps you can help me there -- that suggests that this is a general principle that should apply to all services provided by an ILEC to a CLEC, is there?

404 MR. BOWLES: I wonder if I could maybe cut through some of this. There is obviously going to be a difference between the treatment of a CLEC and a residential customer and you have laid it out very clearly in your evidence that obviously when you provide the end-to-end service, it is obviously a different situation than when you are providing service to a CLEC, and I don't think we have to delve into the philosophy behind that. I think we would obviously agree.

405 I guess the point we are talking about is here -- and I think some of the references in here is that, you know, it goes to a question of proof. We have done the testing on the circuit. As far as we can see with the information we have, the problem is not in our equipment, it is out in the loop or with the customer equipment.

406 We go through an extensive testing to go through the customer equipment side of it and we ascertain to the best of our ability that it is not in the customer equipment. Then we send the order -- the trouble ticket to Bell basically on the assumption that there is no other place where the fault can reasonably be found, and if Bell goes out and finds no problem in the loop, the logical deduction that we have concluded is that, in fact, the problem was an intermittent or some transient event in the Bell loop and that we shouldn't pay the charge.

407 If, in fact, Bell demonstrates that it is in customer equipment -- the Residential Tariff, I think, reads somewhat similar, you know, if Bell determines when they roll a truck for a retail subscriber that the fault was in the end-customer's equipment, the end-customer has to pay the charge. We certainly would -- if the same thing happened to us, obviously, we wouldn't dispute the charge there.

408 These are situations though, as I say, where the fault has been sectionalized to the Bell loop or potentially the customer equipment. You people have looked to the extent you can and found the same thing and then somehow the fault disappears, and as I think we have stated, the only logical conclusion or the most reasonable logical conclusion is it was some sort of transient event on the Bell loop that since had cleared itself up or whoever was working on the loop finished their job.

409 MR. ABBOTT: You had earlier indicated that if there is a transient problem that it is most likely something on the Bell local loop.

410 Could you explain to me why it is most likely on the Bell local loop as opposed to either something on the Call-Net switch or the customer-provided equipment at the other end? I don't understand why the probabilities favour Bell.

411 MR. MAYO: Sure, I will answer that. Basically, there is a delay, as I indicated, from the time we give you a trouble, sometimes up to 24 or 48 hours before you roll the truck. On a day like today where it is wet snow falling, there would be a lot of troubles in the Bell Call Centre, noisy lines, static. If the sun comes out tomorrow, that dries up, the trouble goes away.

412 You are agreeing with us there is a trouble on the loop when you test it, before you roll the truck, there is a metallic there, and from analysis on Bell's network, you guys know there is a high percentage of troubles that do go away through environmental. There is also cable patterns open for damaged cables. You are doing network throws, rearranging the network. All those types of things put troubles on the network. A high percentage of those are then closed to no trouble found or test okay and you do the same on your retail side.

413 MR. ABBOTT: You haven't actually answered my question. My question was why is it that Call-Net has provided evidence that the trouble is more likely on the Bell side? I mean certainly, aren't there a number of problems that could happen with customer-provided equipment or with Call-Net's equipment?

414 MR. MAYO: We would have determined that through the test results, the test that was on the loop when we gave it to you, and then the outcome after you close the trouble out, the condition would have changed.

415 MR. ABBOTT: But you don't always roll a truck, so you don't always --

416 MR. MAYO: No.

417 MR. ABBOTT:  -- sectionalize the problem; isn't that correct?

418 MR. MAYO: That is correct.

419 MR. ABBOTT: I would like to turn to the issue of CHCs quickly. I throw this open to any of you.

420 Is it correct that a CHC is primarily made up of labour, from what you expect from Bell?

421 MR. MAYO: Yes.

422 MR. ABBOTT: Would you agree that ILEC labour services should be billed through an ILEC labour tariff?

423 MR. MAYO: Yes.

424 MR. ABBOTT: Could I turn you to Call-Net's reply of October 7th, paragraph 29?

425 MR. BOWLES: What paragraph was that, sorry?

426 MR. ABBOTT: Sorry, it was paragraph 29.

427 Now in the last sentence there, Call-Net indicates that it does not oppose Bell Canada's request to follow normal tariff procedures to allow other parties to participate. And this is in the context of if and only if a new tariff were to be directed for a CLC; is that correct?

428 MR. BOWLES: Yes.

429 MR. ABBOTT: Would Call-Net have any objection if the Commission were to deem a Co-ordinated Hot Cut, a special Co-ordinated Hot Cut tariff was necessary, having that proceed by way of the normal tariff notice process?

430 MR. BOWLES: Yes, I don't think we would have any problem with that.

431 MR. ABBOTT: Those are my questions. Thank you very much.

432 THE CHAIRPERSON: Thank you, Mr. Abbott.

433 Do you have any more questions, Counsel?

434 MR. MILLINGTON: No, I don't, thank you.

435 THE CHAIRPERSON: Commissioner Cram?

436 COMMISSIONER CRAM: No.

437 THE CHAIRPERSON: Commissioner Demers?

438 COMMISSIONER DEMERS: No.

439 THE CHAIRPERSON: I just have one or two maybe.

440 At the outset, I guess Mr. Abbott indicated that the real issue here is who pays when no trouble is found. He then went on to mention that carriers are not just customers but co-carriers and I guess I would like to put this question to you, Mr. Bowles.

441 As I understand it -- unless I am confused and I must say this process did confuse me somewhat -- in relation to the DMC, I take it the tariff is as indicated in 105, Access Service Tariff for Interconnection with Carriers and Other Service Providers; is that correct? I mean do you understand that to be the case?

442 MR. BOWLES: Yes.

443 THE CHAIRPERSON: And then -- do you have a copy of the tariff there?

444 MR. BOWLES: We do have a copy somewhere here but maybe you can proceed, I think.

445 THE CHAIRPERSON: Well, perhaps I can just...

446 MR. ABBOTT: I am sorry, the tariff you are looking for is 105?

447 THE CHAIRPERSON: 105.

448 MR. ABBOTT: I believe that is an attachment -- if it is of assistance, it should be in our materials.

449 THE CHAIRPERSON: It was.

450 MR. BOWLES: Okay, we have...

451 THE CHAIRPERSON: So if we go over to page 2 of 2 --

452 MR. BOWLES: Yes.

453 THE CHAIRPERSON:  -- under rates and charges, diagnostic maintenance charge -- can you see that?

454 MR. BOWLES: Yes, I do.

455 THE CHAIRPERSON: So what does it say underneath there then? Can you read that next four lines?

456 MR. BOWLES:

"A Diagnostic Maintenance Charge or Maintenance of Service Charge applies for each test made in response to each CLEC's or DSLSP's request for repair or testing of a trouble when no trouble is found in the Local Loop."

457 THE CHAIRPERSON: So it seems clear.

458 Now, is it your view that this is not the tariff that should apply?

459 MR. BOWLES: Well, I guess certainly, this is the appropriate place for the tariff, for a tariff involved in this. I guess our point is that -- certainly, the implication is here if there is no problem in the local loop and there never was a problem in the local loop, obviously if we send a Bell truck out to test the local loop, obviously we should pay.

460 I guess the point we are making here is that we believe in many of the cases when there is no trouble that is found in the local loop, there was, in fact, a trouble in the local loop that has subsequently been cleared by actions that are totally outside of our control.

461 And hence, I suppose there are two ways to approach it just from the point of view of the words in this tariff. Either the words in the tariff could be clarified or, I suppose, re-interpreted. I guess that is basically the reason we are here.

462 THE CHAIRPERSON: So well then I am lost here now. How would you interpret this? How would I interpret this to satisfy the point of your concern because -- let me put it this way. I thought -- I had understood that your position would likely be somewhat along the lines that Counsel Millington was questioning in terms of the distinction between a retail customer, a pure CLEC and a CLEC which is using an unbundled loop.

463 So we have three different scenarios here and we might have true co-carrier status if we weren't being involved with unbundled loops, and we are not a pure retail situation because Call-Net is in the middle here. So here we have a CLEC using an unbundled -- wholesale unbundled loop. So you are a little bit like retail but not quite.

464 Now, I thought that maybe you would be arguing that that is a distinction we want to make, but then I thought I heard you say that we are not really making that distinction here, that we are not really a wholesale customer. So if we accept that this is the tariff that should apply, then it is not clear to me how I would interpret this clause to satisfy the concern that you have raised here.

465 MR. BOWLES: I guess in fairness it would be a little hard to interpret this clause in a way that would satisfy our particular concerns in this case and I guess, as I say, that is part of the dispute, is the fact that it is not clear that this clearly discusses the situations that we are talking about and disputing.

466 I certainly would agree -- I mean as a CLEC, we certainly have more responsibility and we have a different relationship with Bell than a retail customer does. Obviously, since we are a carrier, we have the obligation to conduct as much testing as possible to sectionalize problems. There is no question about that and we accept that.

467 When Bell does launch a truck, they themselves have also determined that there is a fault out there. There is a lingering question about whether it is in the customer premises' equipment or in the loop. We have already gone through extensive testing to try to the best of our ability to make sure it is not in the customer equipment.

468 So when the truck is -- or when we do send the ticket over to Bell, the presumption is that the trouble is in the local loop, and as we have discussed, Bell does equivalent testing and presumably finds a similar result. When the truck actually gets out to the customer's premises, it is gone away, and then certainly, if you just took these at face value at that point, then this would say, charge the tariff, but we are saying that, in fact, probably the fault was in the loop and between the time of sending the ticket over and the time the truck gets there, it has been cleared.

469 Do you want to add something, Bruce?

470 MR. WATSON: Yes. I was just going to add that it is our position that in the majority of cases, Bell, by their actions, through their actions, have indicated that there was a trouble on the loop. So how can they -- you know, the fact that they are rolling a truck indicates that there is a trouble on the loop. So how can they then turn around and say that there is no trouble found?

471 THE CHAIRPERSON: I am sorry, how would -- when, I think, earlier responding to a question from Mr. Abbott, Mr. Bowles, you indicated that in these situations we either have the situation where it was CPE or whether due to environmental or other work being done by Bell somehow or other this line is cleared. I guess, how can we know what the relative balance or where, in fact, in those cases that situation really was the case, of whether it was in fact CPE or somehow magically this loop that had a fault on it became cured?

472 MR. BOWLES: Well, there are a number of situations. As Hubert pointed out there, we can actually test the loop and in certain cases we can actually see the fault out in the loop and we can measure distances to various faults and presumably Bell can do the same thing. So, there are a certain number of situations where we think there should be no question about that the fault in the local loop or was originally in the local loop, whether or not it is clear at the time of the truck roll.

473 As I say, as for the customer equipment, we do the extent of testing to make sure that there is no problem there.

474 MR. MAYO: If I could add to that too. If there is a demark in place, we ask the customer to disconnect the inside wire from the demark. So, Bell is responsible up to the demark. We test the fault, then we give that trouble to Bell, because the customer has removed the inside wire at the jack or wherever the interface is. So, we do do that.

475 And as I identified earlier, in some cases we are giving Bell a trouble where it is open in a CO, and they are rolling a truck out there after. But someone has fixed that trouble by placing the jump or either through some activities they have done. Our test results indicate the fault is in their wire centre and this is the ones we do see through the testing and the scripting with the customer, we do a very good job of eliminating those and bringing them down to a low number.

476 What we are questioning in the tariff is they are saying there is no trouble found. But, as Don indicated, they are agreeing with us there is a fault on that loop when they roll a truck. Almost 100 per cent of those where the DMC is applied they roll a truck.

477 COMMISSIONER COLVILLE: Okay, thank you. I want to take a bit of a nature break here. I have another question or two, so I want to just take about a five minute break until 12:30 and then, as I say, I have another question or two and one or two for Bell. Then if the parties feel they need it, we will take a short break before you prepare your reply. So, we will take a short break right now.

--- Upon recessing at 1223 / Suspension à 1223

--- Upon resuming at 1230 / Reprise à 1230

478 COMMISSIONER COLVILLE: Mr. Abbott, can we proceed without Mr. Leger, or would you rather have him here?

479 MR. ABBOTT: On the organizational totem pole, I am at --

480 COMMISSIONER COLVILLE: Is this a career move if you say we can?

481 MR. ABBOTT: I believe --

482 COMMISSIONER COLVILLE: Any chance of promotion is eliminated if you say we can deal without him?

483 MR. ABBOTT: I believe he will reappear momentarily. I have sent some of our best people out to find him.

484 MR. ABBOTT: Apparently, I have --

485 COMMISSIONER COLVILLE: I wouldn't want to stifle your future development in Bell, so maybe we better --

486 MR. ABBOTT: Especially since Mr. Leger isn't retiring. But no, I think we are in good shape, thank you very much.

487 COMMISSIONER COLVILLE: So, are you prepared to proceed now, seriously?

488 MR. ABBOTT: Yes, in all seriousness, yes.

489 COMMISSIONER COLVILLE: Okay. So, to be clear let me just finish up, Mr. Bowles, with you on this issue. Can you in fairly simple words indicate for us how you think that four line phrase, and in particular the last line of this tariff item, should be interpreted?

490 MR. BOWLES: Well, certainly there is a couple situations where I think it is perfectly clear how it should be interpreted. One, is where we are both... Call-Net and Bell, through their own independent testing, are realizing trouble is on the loop. Whether or not the trouble goes away by the time the truck actually is rolled, it seems to me that in those situations that we should not be charged the DMC.

491 There is the other situation where it is definitely determined that the fault was on the customer premises, also there is no disagreement there. We would certainly accept the responsibility to pay for the DMC when it is the customer's equipment that is at fault. We just think that the remaining circumstance is where we have determined there is a fault, the telephone company has determined there is a fault and when at the end of the day it has not been possible to determine whether... the fault is cleared, but it has not been possible to determine whether in fact the intermittent or whatever the problem was was in the customer's premise equipment or the local loop. Our point is that as far as we are concerned it seems unlikely that an intermittent would occur in the customer loop. Remember, it has been tested twice now in two different time periods and, you know, the fault has been there both times over a certain period of time. We just think that by far the most likely problem or likely situation was the default was in fact in the customer loop.

492 So, it seems to me that... and again, just off the top of my head, one way to change this of course would be to... One way to interpret this thing is when it is demonstrated the trouble is in the customer premise equipment, obviously the DMC applies. But otherwise, if no trouble is found, it wouldn't apply. That is not very sophisticated, but that is generally the approach I would propose.

493 COMMISSIONER COLVILLE: Essentially, doesn't that just reverse what is said here? I mean, the situation you describe, isn't that what is generally understood to be in this business of no trouble found when there may have been a trouble at some point? There must be a trouble, the customer called and complained. Somewhere in the network there is a trouble and through your testing, or if it is just pure retail customer, Bell test doesn't find any problems so no trouble is found so they don't bill the retail customer.

494 And in this case, you have tested, Bell has tested, no trouble is found. Bell is saying, in this case... in that circumstance we are going to bill you.

495 MR. WATSON: Just to try to take a stab at this. In a request for repair, testing of a trouble, when no trouble is found during the initial test by the Bell CO tester in the local loop... of course, there would have to be a combination when an intermittent test reappears in a month or in the next rainy day or whatever and the trouble reappears and eventually at some point it, I guess in our experiences, it turns out that there is a problem in the local loop, in that case a DMC wouldn't be applied. But, I mean, I guess it is really when, you know, if no trouble is found by the CO tester, ie. no truck roll is done, then --

496 MR. MAYO: That test would apply.

497 MR. WATSON:  -- and I think they call it a test OK in sort of the --

498 MR. MAYO: Yes, bell uses different --

499 MR. WATSON: -- layman's terms.

500 MR. MAYO: Basically test OK would be the tester puts the two-way up, as Rick described, there is no metallic fault on the loop, he closes that as a test OK. What they are billing the DMCs on is what they call clear on arrival or no trouble sound, that is different than a test OK. On a test OK in a Bell environment they do not dispatch a truck. In almost 100 per cent of these situations they have tested the loop and identified a trouble, agreed with our analysis and have rolled a truck, so it does not fall into the category of a test OK.

501 COMMISSIONER COLVILLE: So, we have two situations here from your point of view. They either do or do not roll a truck?

502 MR. MAYO: Correct.

503 COMMISSIONER COLVILLE: So, if they don't roll a truck what happens with this charge?

504 MR. MAYO: If they don't roll a truck, then the interpretation of the test... the tariff would apply.

505 MR. WATSON: We would pay --

506 MR. MAYO: We would pay the diagnostics if we gave them a trouble, it came back and they did not dispatch a truck, there was no trouble on --

507 COMMISSIONER COLVILLE: No trouble found, they would bill you?

508 MR. MAYO: With the exception of the carrier facility where we can test because of the loop make-up if it is not metallic.

509 COMMISSIONER COLVILLE: So, your view would be if they have to roll a truck and trouble was found --

510 MR. MAYO: If they have to roll a truck, their tests identified there was a trouble and therefore that trouble --

511 COMMISSIONER COLVILLE: They should bear the cost?

512 MR. MAYO: They should bear the cost unless they prove it to the inside wire, then we would agree, which his the same guidelines as they use on the retail side in 4210.

513 MR. WATSON: Notwithstanding repeat intermittent problems that crop up again a month down the road where the test OK, say next week, the same customer calls in a trouble and this time it is not a test OK situation and Bell does roll a truck. Then we would say, well that first DMC was sort of the initial symptom of the problem and there really was a problem on the line, it just cleared intermittently.

514 COMMISSIONER COLVILLE: Okay thank you, Mr. Watson.

515 Now, Mr. Abbott, if I can ask you a couple of questions. Perhaps I can just start by picking up on that last point that was made by Mr. Watson. Did I understand you earlier in the day to indicate that when those kinds of situations happen and you do find that that intermittent repeat problem crops up that you do or you will credit the customer, Call-Net in this case?

516 MR. ABBOTT: Yes, most certainly that is the case. The only other thing I added to that was that it is really only Call-Net that can identify those to us. I mean, we do a large number of... we do a fair bit of testing. It is Call-Net who can keep track of how many tests apply to a given circuit. So if they come to us and say, "Look, you have gone out testing four times on the same circuit in the last month or two months or quarter", we will in most cases have good reason to think, well, there is some sort of intermittent fault. We will refund the DMC and we will get out there and fix it.

517 COMMISSIONER COLVILLE: Now, Mr. Bowles indicated earlier a couple of situations that could happen, either there is a trouble, they have checked their network, they report it to you; it may either be CPE, and you asked some questions about that in terms of Call-Net's own testing, or it's a problem in your network and somehow or other the problem in the network gets cured. I guess you have no way, and I would take it this is not -- this may happen for these kinds of situations somewhat frequently?

518 I mean, within this subset of problems, that being either the problem was in your network and got cured or it is CPE; that it's not insignificant, the amount, where it may be your network that it gets cured. It may be weather, it may be other problems, it may be somebody working on the network, it may be somebody working at the switch created a problem. Some other activity cures the problem. So there is weather and then perhaps other activities that cure the problem.

519 Have you any way of -- so when you find these repeat intermittent sort of problems you would credit Call-Net? If you were to find, or are you able to find if these were in fact problems and the network got cured, would you also offer a credit?

520 MR. ABBOTT: Certainly. Although, if you don't mind, I would like to go back on a couple of points you brought forward in your question.

521 To begin with, the situations where Bell rolls a truck at Call-Net's request, does testing and there is simply no trouble to be found anywhere, not that it's on the customer's-provided equipment that Call-Net probably should have found, but there is just no trouble that we can find anywhere, that only reflects I guess somewhere around 3 to 5 per cent of all the DMC visits that we do at Call-Net's request. So it's a relatively small percentage.

522 Within that relatively small sliver of just no trouble found anywhere, if it can be established that it's an intermittent fault on Bell Canada's network, and that would likely be as a result of it turning up repeatedly every time it snows or rains or something like that, we will address it. We will refund or credit the DMC. There is no question about that.

523 As far as other transitory events, if they can be established to be on the Bell network, of course we have no option but to refund any DMC we might have charged, but in fact there isn't a great deal of evidence other than anecdotal evidence right now about where these mysterious problems come from. There is no reason to think, and there is no evidence to think that the Bell network is the cause of it most of the time or even the majority of the time. There is customer-provided equipment at one end; there is the switch at the other end. I think, in fact, you could probably -- again, this is inference. You could probably conclude that Bell is responsible for a minority of the problems because most of our problems if they occur, transitory problems, are going to be intermittent. Call-Net identifies those to us. We refund.

524 So the ones that are left over are most likely not on the Bell network. They are the ones that aren't intermittent.

525 I would further point out -- I know Call-Net has brought up in their materials the idea that if we are doing installation or repair work on a line that that may cause an interruption. This type of work doesn't generally last very long. First of all, it's not that common that we would drop a customer's service and, further, it doesn't last very long. So one would think that by the time the trouble is called in and then there is testing it should be gone. There should be no reason to refer that to Bell Canada.

526 So once again, I come to the conclusion, largely by inference, that the majority of these are as a result of Call-Net, either they are in some fashion Call-Net's responsibility; there is customer-provided equipment, or an erroneous report from an end customer that simply hasn't been double checked through proper testing.

527 COMMISSIONER COLVILLE: I am smiling because it's been a long time, but I did do some work in the COs, so I know those kinds of things can and do happen.

528 You said when Call-Net "asked us to roll a truck" -- maybe that was just a slip of the tongue. My understanding would be that Call-Net doesn't ask you to roll a truck. They have identified a problem and want you to fix it.

529 Just focussing on where I was discussing with Call-Net at the end of our discussion in the case of whether or not his truck is rolled in terms of billing or not billing to comply with the tariff item that we were discussing there, I wonder if you could comment on that, which would be if you choose not to roll a truck you would bill; if you choose to roll a truck then you have identified a problem there so you would not bill, so that would comply with the tariff.

530 MR. ABBOTT: I would be very happy to respond to that.

531 When we do a test -- when Call-Net reports a problem, we do testing from the central office to identify -- hopefully, to sectionalize as far as possible where the trouble is. If we can't sectionalize the problem -- the central Bell Canada central office technician can't centralize the problem either because there is a remote that doesn't allow us to see to the very -- to the end of the loop, or because he just can't see any problem -- Bell Canada rolls a truck to the customer's premises in order to complete reasonable and proper testing.

532 I was afraid someone on this side of the table was going to have a stroke, actually, if I didn't deal with this -- that the rolling of a truck does not in any way provide any evidence that Bell Canada thinks there is a problem on the loop. We have taken Call-Net at its word that it has done testing and we have taken Call-Net's word that there is a trouble. Our central office technician tests and says either "I can't see to the end" or "I can see to the end, but I can't find any trouble. There is nothing turning up".

533 In those situations we roll a truck because that is part of doing proper testing. We have taken Call-Net at their word that there is a problem. We roll the truck because that's what has to be done. In fact, we frequently roll the truck if we know there is a remote on a particular loop and we know that we can't see to the end. We will roll the truck even before the CO does their testing because that is part of prompt, good customer service. We know that we can't see to the end. We know that we can't sectionalize it just from doing the CO testing.

534 So in that respect, particularly where a remote is involved, rolling a truck is absolutely essential whether Call-Net is doing the testing or Bell are doing the testing. If it is Call-Net's end customer they really should be rolling a truck.

535 COMMISSIONER COLVILLE: Okay. Last question, I think.

536 In those situations where you have looked and you decide to roll a truck -- and this may have been asked earlier and I missed the answer or perhaps it was one of the ones where you said you didn't have the statistics -- where you make that decision to roll a truck as no trouble was found insofar as you could see, so you roll the truck and you actually find it is CPE, how many of the times that you have rolled a truck in the kind of circumstances that we are discussing here today have you found it CPE or have you found that it was not CPE?

537 MR. ABBOTT: When we roll the truck, about roughly 20 times out of 80, so 25 per cent of the time, we find that it is Call-Net's end customers, customer-provided equipment.

538 COMMISSIONER COLVILLE: Twenty-five (25) per cent of the time?

539 MR. ABBOTT: That's correct, 25 per cent of the time, and that should be zero if Call-Net was doing proper testing.

540 About another 3 to 5 per cent, I think, roughly speaking, is we get there and there is no trouble found. As we have discussed, there are a number of possible causes for that. Maybe the end customer realized the extension was left off, hung it up. Maybe they didn't phone back into Call-Net. Maybe they did and Call-Net didn't phone us. There is so many possibilities. We can really just work on the inferences I suggested that would say that it's more likely Call-Net's responsibility than a failure in Bell's loop.

541 COMMISSIONER COLVILLE: How can you conclude that? Wouldn't that be just the same as your own customer where you found there was no trouble found?

542 MR. ABBOTT: Well, earlier I sort of worked through certain inferences in the sense that if it was a problem on the Bell loop it would likely be intermittent, and if it was a problem then it may be environmentally related. You would expect it to continue to turn up. If that happens we can identify that and refund the DMC.

543 COMMISSIONER COLVILLE: But you have exactly the same problems with your own retail customers; right?

544 MR. ABBOTT: That's correct, yes.

545 COMMISSIONER COLVILLE: And you don't bill those.

546 MR. ABBOTT: No, but the difference there is --

547 COMMISSIONER COLVILLE: No, I understand the difference. I don't want to go through that again. I think we have been through it about three or four times.

548 In the 75 per cent of cases it would be virtually identical to the situation of you and your retail customer, wouldn't it?

549 MR. ABBOTT: Seventy-five (75) per cent of cases where we roll a truck and find that there is a problem with our network?

550 COMMISSIONER COLVILLE: There was no problem and it was not CPE.

551 You said when you roll a truck 25 per cent of the time you find it's CPE. So I take it 75 per cent of the time it's not and yet the problem got cured. So it got cured and it wasn't CPE. Now, we are in a situation that would be exactly the same as your retail situation, it seems to me, where you roll a truck, you went to the customer's premise, there is no problem with CPE. It's got to be on the network somewhere but it got cured, so we are not going to bill.

552 MR. ABBOTT: Well, either it got cured or we found it and repaired it. I guess it's not the problem --

553 COMMISSIONER COLVILLE: Or trouble found.

554 MR. ABBOTT: Okay. Yes, in that case I agree with what you are saying, sir.

555 COMMISSIONER COLVILLE: So 75 per cent of the cases that were involved in here would be exactly the same as your retail customer?

556 MR. GOOLEY: If I could just help clarify, I think what we are saying is in 100 tickets that would come in, clearly we would find 70 per cent of those Bell network trouble, and there is no dispute on those ones; Bell fixes those. In the 20 to 25 per cent range, return to CPE, and then in 3 to 5 it's an unknown and no trouble found.

557 So it's really in that 3 to 5 per cent that would differ from anything on the retail tariff. Roughly 95 per cent would be very consistent. If it's our network's fault we fix it. If it's CPE we bill it. So the discrepancy is really in that 3 to 5 per cent where we find no trouble on the conclusion of the testing would be the difference between what happens on the charges for a CLEC and the charges on a retail customer.

558 I'm not sure if that is the same question you were asking.

559 COMMISSIONER COLVILLE: I'm not sure if it is either. I'm getting lost.

--- Laughter / Rires

560 MR. GOOLEY: I wasn't sure where the 75 -- clearly, 75 per cent of --

561 COMMISSIONER COLVILLE: Where I was coming from was you decided to roll a truck and I asked Mr. Abbott, now, we roll a truck, and he found in 25 per cent of the cases where we rolled a truck it's CPE's problem. CPE is the problem, customer-provided equipment. So the other 75 per cent it was not CPE, we thought there was a trouble, we rolled a truck and no trouble is found.

562 MR. GOOLEY: I guess that is a point of clarification. In the other 75 per cent, 70 per cent we have found it to be Bell network at fault and fixed the problem, 5 per cent we find no trouble at all.

563 So it's not 75 per cent of them that are unknown and there is no trouble. Out of the 100 tickets, if you like, 70 Bell's network was found to be at fault. Bell fixed it. Now, in the 20 to 25 per cent range it was CPE trouble and in the 5 per cent range there was no trouble found at all.

564 COMMISSIONER COLVILLE: Mr. Bowles, would you generally agree with those numbers?

565 MR. BOWLES: Yes, in order of magnitude, yes.

566 COMMISSIONER COLVILLE: Okay.

567 MR. BOWLES: It's similar.

568 MR. MAYO: The only thing we don't agree with is on the stats that we track about 85 per cent of the troubles we give to Bell are -- they are telling us they closed them to the network.

569 Another less than 6 per cent is what they are closing as the no trouble found when they rolled the truck and there is no trouble found. So we are talking about 6 per cent or below 6 per cent. Of the total troubles we give them they are closing out to that code.

570 MR. BOWLES: So it's this sort of magnitude. It's the same level.

571 COMMISSIONER COLVILLE: Okay.

572 MR. MAYO: Their per cent proved to the CPE is higher than ours.

573 COMMISSIONER COLVILLE: All right. I don't have any further questions.

574 Anybody else here since I have raised all this, piqued anything? No.

575 All right. We will give you each 10 minutes for final positions. Do you wish to take a break before you do that? No?

576 MR. BOWLES: I don't have 10 minutes. I think most of these things have already been --

577 COMMISSIONER COLVILLE: Mr. Bowles.

CLOSING REMARKS / REMARQUES DE FERMETURE

578 MR. BOWLES:  -- covered.

579 I just wanted to go over a few things. First of all, there was -- Bell has on several occasions, I guess, suggested that our testing process is inadequate and I would like disagree with that strenuously.

580 I mean, obviously, the last thing we want to do is have Bell send out a truck because our testing process has been inadequate, because we know we are going to end up having to pay for it. So we do go through extensive testing and certainly to our technical limitations we do everything we can.

581 With respect to CPE, you know, we go through as much as we can with customers and, as I say, I am sure our testing processes is effectively the same as Bell's.

582 With respect to the coordinated hot cut, from a technical point of view we actually only, as far as we can understand, we actually only need one technician on the Bell side to actually flip the wires. So if everything goes wrong and everything that has been done ahead of time has been done ahead of time, this just requires the one technician.

583 There are situations, of course, as Bell has pointed out and as we have pointed out, where the migration doesn't go through as planned and it has to be undone. In those cases we certainly would agree that extra staff are required. We don't think that happens very often. We don't think those extra staff need to be there all of the time. If something goes wrong with the migration that is the fault of Call-Net, we would be liable for having Bell call out the required personnel at the overtime or call-in rate or whatever other rate would be applicable at the time and we would certainly take liability for that.

584 To the extent that if the cut over has to be undone because of something that is the responsibility of Bell, presumably they would need the extra staff to undo that but, I guess, our point is we don't think it's our responsibility to pay for that kind of insurance because, as was pointed out, if the problem is on our side we will pay; if Bell thinks they need insurance for their activities that's their decision, but we don't think we should have to pay for it.

585 That's really all we have to say. Thank you very much.

586 COMMISSIONER COLVILLE: Okay. Thank you, Mr. Bowles.

587 Mr. Abbott.

CLOSING REMARKS / REMARQUES DE FERMETURE

588 MR. ABBOTT: Thank you. I will try and be almost as brief as Mr. Bowles, although that isn't generally my nature.

--- Laughter / Rires

589 MR. ABBOTT: I used to be paid by the hour to talk. In any event, I think it's fair to say that the issues have narrowed a fair bit and that the parties have been able to work together on a number of these. What is still at issue are some relatively narrow points.

590 In respect of the diagnostic maintenance charge and the access services tariff, our position is the tariff there is very clear. The rate is quite reasonable. Indeed, it is in certain situations significantly lower than Call-Net's comparable rate for the same work as set out in their tariff. I think it is Item 601. We also believe it reflects good policy. It's appropriate to create an incentive for each LEC to be responsible for its own network, and that's just what that tariff does, it encourages each LEC to test reasonably and completely before involving another LEC in an unbundled local loop situation.

591 We still have the question of trouble not found and who should bear the risk for that. I think what it comes down to is it's Call-Net's customer. It is Call-Net's network. They are in the best situation because they have a direct relationship with their customer to reduce the number of trouble not found situations. Call-Net's counter argument that in fact Bell should be responsible for it is -- I would respectfully say rests on two flawed assumptions.

592 One is that they have tested reasonably. They have excluded the possibility of the trouble being on their network. Therefore, it must be Bell's. The results, the statistical results, simply do not bear that out.

593 As indicated, 20 per cent of the time that we do diagnostic testing, we find that the CPE is at fault. The customer-provided equipment is at fault. If Call-Net was testing properly, and that includes a truck rolled to the customer's premises in order to sectionalize the trouble where a remote is involved, that number should be zero.

594 Similarly, if they did that sort of testing, if the trouble wasn't there, they would determine that as well. So I think that is one issue, is doing reasonable testing, taking responsibility for your network and your end-customer.

595 I guess the second issue is -- the second assumption is that if the problem is cleared -- well that, you know, if there is no trouble there, the problem must have somehow cleared, and first of all, it is not entirely clear that that is actually the case. There may simply be a number of inappropriate or troubles that are improperly reported by the end-customer and that can be detected by proper scripting and testing with the end-customer.

596 I guess the last thing I want to deal with on this issue is, once again, to emphasize rather vehemently from our side that the fact that a truck has rolled is not evidence at all that Bell Canada has decided that there is a trouble on the loop somewhere. We roll the truck even if we don't find any -- our testing shows no trouble on the loop.

597 We roll the truck if there is a remote involved because you can't see at the end of the loop, because that is part of good testing, making sure that your network is clear, and we, in fact, take Call-Net at its word. If it says there is a trouble and we can't find it from our remote testing, we roll a truck. Because they have told us there is a trouble, we have to go find it, and 20 per cent of the time it turns out there is a trouble, it is on their network, and another sort of 3, 4 or 5 per cent of the time, there just is no trouble.

598 With respect to Co-ordinated Hot Cuts, in a way, it is sort of hard to truly understand what is still at issue here. Our position is that we involve a reasonable number of people on these Co-ordinated Hot Cuts and that the rate is reasonable. It has been -- the rate in 4960 has been approved by the Commission for use in relation to wholesale labour provided to CLECs.

599 The rate is reasonable. The number of people, based on our experience, is reasonable. We have given Call-Net the option to reduce the number of people if they are willing to take the risk related to that and we have certainly been cooperative as far as using the 10-digit trigger. They have chosen not to and I think -- well, I respectfully suggest that certain conclusions can be drawn from Call-Net's reluctance to take that option.

600 In relation to Connecting Link Change, I think the real issue here is the need for cooperative testing because since Order 2001-838, which required that cooperative testing take place before Bell Canada can charge for Connecting Link Change work, we have not been -- we still do lots of Connecting Link Changes at Call-Net's request.

601 We are not able to charge for them because in the vast majority of cases, even though Bell Canada requests that a cooperative test be conducted, Call-Net does not make itself available and it is reasonable for the Company to expect that it can recover its reasonable costs for work done at Call-Net's request. It is unreasonable and unfair to think that Bell Canada will continue to provide this service for free. Something has got to give.

602 That would be all I have to say. Thank you.

603 THE CHAIRPERSON: Well, thank you, Mr. Abbott, and to your team, and Mr. Bowles, to yours.

604 That concludes this phase of our proceeding. We will retire now to deliberate and make our decision, and as indicated in my opening comments, we hope to have our decision out by December 22nd.

605 The information that was requested and offered this morning, if you could send it directly to Paul Godin, that would speed up the process.

606 MR. ABBOTT: Could I request that we have until noon tomorrow to provide it? Some of my witnesses are from out of town and I didn't consult with them on how quickly we can produce it.

607 MR. BOWLES: We are in the same position, Mr. Chairman. These people have to catch a plane right back now.

608 THE CHAIRPERSON: Noon tomorrow is fine.

609 MR. ABBOTT: Thank you very much.

610 THE CHAIRPERSON: Okay, that is it. All right, we are adjourned.

--- Whereupon the hearing adjourned at 1305 /

L'audience est ajournée à 1305

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