ARCHIVED -  Telecom Order CRTC 97-1926

Ottawa, 23 December 1997

Telecom Order CRTC 97-1926

Stentor Resource Centre Inc. (Stentor) (on behalf of and with the concurrence of BC TEL, Bell Canada, The Island Telephone Company Limited, Maritime Tel & Tel Limited, The New Brunswick Telephone Company, Limited and NewTel Communications Inc.) Tariff Notice (TN) 527 and TELUS Communications Inc. (TCI) TN 949, both dated 11 August 1997, proposed revisions to co-location tariffs.

File Nos.: Stentor TN 527 and TCI 949

1. In Co-location, Telecom Decision CRTC 97-15, 16 June 1997 (Decision 97-15), the Commission approved tariffs for co-location access to central offices (CO) and directed Stentor and TCI to file tariffs for additional co-location service options. Stentor TN 527 and TCI TN 949 provide the additional options and propose other revisions to the initial co-location tariffs and Central Office Lease Agreements (COLAs).

2. Call-Net Enterprises Inc. (Call-Net) and Rogers Network Services (RNS), by letters dated 5 September 1997 and 17 October 1997, respectively, raised co-location implementation issues on behalf of several parties. The Commission has dealt with those issues which relate to the tariff filings in this Order. The Commission will indicate separately its determinations on the appropriate disposition of the remaining co-location implementation issues raised.

3. In their submissions relating to the tariff filings, some parties expressed concerns with the requirements imposed by the Stentor operating companies (SOCs) for interconnection agreements in order to obtain access to co-location and, in the case of TCI, the CO services and facilities to which co-location would provide access. The Commission notes that, by letter dated 24 October 1997 in response to a complaint filed on 30 July 1997 by Shaw FibreLink Ltd., it addressed the issue of interconnection agreements in relation to co-location. The Commission stated that it considers the Carrier Access Tariff (CAT) to contemplate the interconnection of services for the interchange of traffic, generally whether switched or non-switched, local or interexchange, and to fulfil the requirements for co-location. The Commission is of the view that its determinations in that letter apply generally to all SOC co-location arrangements. Accordingly, the condition in TCI's proposed tariff pages and COLAs whereby an Interconnecting Carrier (IC) would be limited to interconnecting with TCI's Public Switched Telephone Network (PSTN) is to be revised to indicate that the primary purpose of co-location is for an IC to interconnect with TCI facilities at the CO.

4. Decision 97-15 indicated that there is to be a six-month maximum on the procedures to obtain physical co-location and a three-month maximum to obtain virtual co-location. Stentor, in its proposed COLA, interpreted this period to commence with acceptance by the IC of the Secondary Report. Some parties noted that this could delay access to co-location since, under the currently approved co-location application procedure, there is no limitation on the time period to prepare the Secondary Report. The Commission finds that the maximum time period to obtain co-location is to be measured from the acceptance by the IC of the Initial Report. In this way the preparation of the Secondary Report is to be included in the maximum time period to obtain co-location.

5. RNS objected to the requirement in Stentor's co-location tariffs for prior written consent from the SOC where a cross-connection is to be made with another IC co-located at the same CO. The Commission finds the control which Stentor proposed to impose on cross-connection arrangements to be acceptable on the condition that such control provision be limited to assuring compliance with the criteria for cross-connection indicated in Decision 97-15. Stentor is directed to add the following wording to its co-location tariffs: "The co-located IC, after interconnecting its Transmission Equipment with the SOC's facilities, is permitted to connect to the Transmission Equipment of another IC co-located in the same SOC premises via an IC to IC cross-connection. In co-locating the transmission equipment in the SOC premises, the IC shall ensure that the primary purpose of co-location is to interconnect with the SOC facilities. The SOC reserves the right to require the IC to demonstrate that the capacity dedicated to interconnection with the SOC facilities is greater than that dedicated to IC to IC cross-connection".

6. Stentor and TCI proposed to apply a cross-connection link charge. The Commission approves such a charge but directs that the proposed references in the co-location tariffs to a link charge in other tariffs are to be made specific. For Stentor, the link charge reference in its co-location tariffs is to indicate National Services Tariff, DNA tariff, Item 301.3, part b, DS-1 link. The TCI co-location link charge tariff reference is to indicate Competitive Network Services Tariff Item 1406.4, Link Charge. Both of these rates are currently $60 per month.

7. Pursuant to Decision 97-15, Stentor and TCI provided migration plans for existing space and power Special Facilities arrangements to which the co-location tariffs would apply. The Commission approves the proposed migration plans.

8. RNS, in its letter of 17 October 1997, raised a concern that Special Facilities Tariffs (SFTs) for space and power arrangements should have rates which are consistent with the co-location tariffs. The Commission notes that this issue will be addressed in its disposition of several space and power SFTs currently before the Commission.

9. RNS submitted that the liability and indemnity provisions of the proposed COLAs do not reflect the spirit of Decision 97-15 and that the general thrust is one of absolute indemnity by the IC and very limited liability by the SOC.

10. In Decision 97-15, the Commission determined that the SOC's liability should not be limited in cases of death, physical injury or damage to property where the damages are caused by the company's negligence and, in cases that involve other types of damages resulting from the SOC's negligence, the SOC should be permitted to limit, but not exclude, its liability. In addition, the Commission determined that the IC should not be liable for third party claims where the claims arise out of the negligence or deliberate fault of the SOC or its employees. In section 12.05 of the Stentor COLA, the SOC proposes to exclude its liability, even in cases involving its negligence. Stentor is directed to amend this provision in accordance with Decision 97-15 to eliminate the exclusion of liability in cases involving negligence. In addition, Stentor and TCI are directed to amend section 12.03 and section 12.08 of their respective COLAs, to reflect the principles stated above by adding at the end an exception for liability for death, physical injury or damage to property caused by the company's negligence. In addition, the liability can only be limited, and not excluded, where negligence is otherwise involved.

11. While TCI has provided for reasonable notice in section 12.07, it has not defined what that notice shall entail. TCI is further directed to define "reasonable notice" in section 12.07 to mean at least 6 months prior to the implementation of the change, similar to the provision in Stentor's COLA.

12. While the Commission did permit limitations on the liability of TCI, as described above, the Commission does not consider the limitations provided for in section 12.12 to be reasonable. TCI is directed to clarify section 12.12 to provide, in a manner similar to section 12.04 of the Stentor COLA, that the aggregate liability of TCI cannot exceed, on a cumulative basis, the total monthly amount of recurring charges paid by the IC during the 12-month period immediately preceding the date of the cause of action. In addition, reference in the seventh line to "in this section 12.12" shall be replaced by "in this article 12" and the words "solely and" shall be deleted from the eighth line.

13. With respect to the indemnification provisions in the Stentor and TCI COLAs, the Commission considers that clarification is required to ensure that they relate to actions or claims resulting from an act or omission attributable to the IC. The Commission therefore directs that Stentor and TCI modify section 12 of the COLA to that end, including the following: section 12.01 of Stentor's COLA be amended by adding at the end of the provision "by the IC" and that the second to last line of section 12.01 of the TCI COLA be amended by adding "by the IC" following "transmission equipment" and that section 12.02 (c) and 12.02 (h) of each COLA be amended to say "the performance of this Agreement by the IC" and "by the IC" following "Transmission Equipment", respectively. Stentor and TCI are further directed to delete the last sentence in section 12.14 of Stentor's COLA and section 12.12 of TCI's COLA which requires the IC to save the SOC harmless from any claims of third parties. Stentor is further directed to amend section 12.17 of its COLA to state "section 12" in place of "sections 12.03 to 12.16" and to insert "and any rights to indemnification" following "liability" in the second line. Similarly, TCI is directed to delete "limitation of liability" from lines 1 and 2 of section 12.15 of its COLA.

14. In Decision 97-15, the Commission concluded that the SOCs could require co-located equipment to comply with CSA and Bellcore generic standards as necessary to ensure a safe and reliable environment within the CO. Several parties objected to the terms of the proposed COLAs which would allow the SOC, at its discretion, to change and require compliance with equipment standards. Specific standards were not identified in the COLA.

15. In approving the principle that the SOCs could establish equipment standards, the Commission noted that the SOCs proposed that equipment must meet "pre-determined industry standards". The COLA indicates that the SOC will provide reasonable notice of a change to standards or network specifications. RNS alleged that the COLA would permit the SOCs to change equipment specifications at their discretion and then to require equipment to be removed on 15 days notice for non-compliance. Stentor replied that its intention was to enable non-compliant equipment to be removed, and to permit standards to evolve over time with appropriate notice of changes. Stentor indicated that it does not intend to arbitrarily change industry technical standards.

16. The Commission shares the views of parties who argued that uncertainty concerning equipment standards should be reduced. The Commission also accepts the need for standards to evolve over time. The Commission determines that six months notice of changes to equipment standards or network specifications affecting co-location equipment is to be provided. In the event that the SOC requires a shorter notice period, the matter may be referred to the Commission.

17. The Commission directs that the co-location equipment standards and proposed changes to standards are to be identified and made publicly available, together with the list of suitable equipment, through the Carrier Services Groups of the SOCs.

18. Decision 97-15 indicated that a list of equipment suitable for co-location "should be developed and maintained through consultation with the ICs to reduce uncertainty with respect to the approval of equipment proposed for co-location." In its letter of 5 September 1997, Call-Net indicated that the proposed list of suitable equipment filed by Stentor on 28 August 1997 was developed by Stentor without consultation with the parties. Call-Net, on behalf of several carriers, submitted that this list should be withdrawn and that the Commission should convene a consultation process to resolve the equipment list issue. AT&T Canada Long Distance Services Company (AT&T LDS) also provided comments supporting Call-Net and indicating that, at a minimum, asynchronous transfer mode (ATM) transmission equipment should be added as acceptable equipment for co-location. AT&T LDS proposed that the equipment list should be included in the SOCs' co-location tariffs.

19. Stentor replied that the equipment list which it provided was intended to be an initial list and that it expected to make changes to the list as co-location customers requested the addition of other equipment. Concerning ATM equipment, Stentor indicated that it would be willing to co-locate equipment of any kind if it is used for transmission only.

20. As stated in Decision 97-15, the SOCs must consult with the ICs to develop a list of appropriate equipment for co-location. The Commission considers the CRTC Interconnection Steering Committee (CISC) process to be appropriate for undertaking such consultation and, accordingly, requests CISC to do so and to recommend to the Commission a list of appropriate equipment and a process for making ongoing revisions to the list.

21. To resolve other co-location implementation issues that are not addressed in this Order, the Commission will ask CISC to examine them and make recommendations or it will establish a separate dispute resolution process as it deems appropriate.

22. Stentor TN 527 and TCI TN 949 are approved, as modified by this Order. Stentor and TCI are directed to issue forthwith revised tariff pages and COLAs to give effect to the revisions required by this Order.

Laura M. Talbot-Allan Secretary General

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