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ARCHIVED - Telecom Costs Order CRTC 2004-15

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Telecom Costs Order CRTC 2004-15

  Ottawa, 18 November 2004
 

Tatlayoko Think Tank - Application for costs - Telecom Public Notice CRTC 2002-6, Access to pay telephone service

  Reference: 8665-C12-18/02 and 4754-222

1.

By letter dated 15 July 2003, Tatlayoko Think Tank (TTT) applied for costs with respect to its participation in the proceeding initiated by Access to pay telephone service, Telecom Public Notice CRTC 2002-6, 5 December 2002 (the Public Notice 2002-6 proceeding). TTT served its application on Aliant Telecom Inc., Bell Canada, MTS Communications Inc., Saskatchewan Telecommunications and Télébec, Limited Partnership (collectively, the Companies) and TELUS Communications Inc. (TCI) and TELUS Communications (Québec) Inc. (collectively, TELUS).

2.

On 25 July 2003, the Companies and TELUS filed their respective comments in answer to TTT's application. TTT filed reply comments on 4 August 2003.
 

The application

3.

TTT submitted that it met the criteria for an award of costs, pursuant to subsection 44(1) of the CRTC Telecommunications Rules of Procedure (the Rules) in that it: a) represented a group of rural residential subscribers and potential subscribers who would be affected by the outcome of the proceeding; b) had acted in a responsible manner; and c) contributed to a better understanding of the issues of concern to rural subscribers from across British Columbia.

4.

TTT requested that the Commission fix its costs at $6,781.13 for Mr. John Kerr, $6,018.75 for Mr. Ken Jansen and $695.50 for Ms. Dale Kerr amounting to $13,495.38 in consultant fees. TTT's claim included the Federal Goods and Services Tax (GST) on fees. TTT filed a bill of costs with its application.

5.

TTT submitted that the appropriate respondents in this case were the incumbent telephone companies.
 

Answer

6.

In answer to the application, the Companies submitted that they had concerns regarding the relevance of TTT's submissions because, in their view, much of the evidence submitted by TTT was based on a misunderstanding of the nature of the proceeding. The Companies referred in particular to the electronic bulletin board that TTT had used to solicit comments and responses to its survey. According to the Companies, for most of the period prior to the filing of evidence, this electronic bulletin board prominently indicated that the intent of the proceeding was to consider abolishing payphone service. The Companies stated that the Public Notice did not specify that the abolition of payphones was within the scope of the proceeding and that no party made such a proposal. They submitted that the Commission should take into account the relevance of the evidence generated by TTT's misunderstanding when assessing costs, specifically whether and to what extent costs should be reduced for this reason.

7.

The Companies also submitted that TTT had claimed incorrect rates of payment for Ms. Dale Kerr, Mr. John Kerr and Mr. Ken Jansen. Referring to paragraph 20 of Tatlayoko Think Tank application for costs - Public Notice CRTC 2001-47,Telecom Costs Order CRTC 2002-14, 4 October 2002 (Costs Order 2002-14) in which the Commission divided the number of hours claimed by Ms. Kerr and Mr. Kerr by 7 to arrive at a daily rate, the Companies submitted that Ms. Kerr, Mr. Kerr and Mr. Jansen were acting as in-house consultants in the Public Notice 2002-6 proceeding and that TTT's current claim for costs should be recalculated on that basis.

8.

TELUS submitted that TTT's participation in the proceeding was not conducive to providing reliable and relevant information to assist the Commission in making a determination on the specific issues set out in the Public Notice. In TELUS' view, TTT used misleading statements that suggested that the Commission and TELUS were considering abolishing pay telephone services and that the on-line survey conducted by TTT and filed as part of its evidence was unreliable and of questionable relevance.

9.

TELUS also stated that they found the costs claimed by TTT to be excessive and non-compliant with Appendix A of the Commission's May 1998 Guidelines for the Taxation of Costs. TELUS submitted that the Commission should award fees to Ms. Kerr and Mr. Kerr at the daily rate for in-house consultants rather than at the hourly rate of $130 for external consultants.
 

Reply

10.

With regard to the concerns raised by the Companies and TELUS regarding the relevance of TTT's submissions, TTT stated, among other things, that it raised issues which the Companies spent considerable time and effort rebutting. Further, it stated that TELUS and the Companies filed interrogatories addressed to TTT, thus indicating that its submissions were relevant.

11.

TTT submitted that it did not have any salaried employees and that all functions and responsibilities are performed on a fee for service basis. TTT submitted that its costs application therefore appropriately requested compensation on an hourly basis for TTT's work in connection with the pay telephone proceeding. TTT also noted that it had not included the cost of the time that went into constructing the website and adapting the on-line survey in its application for costs.
 

Commission's analysis and determination

12.

The Commission notes that to qualify for an award of costs, an applicant must meet the three criteria set out in subsection 44(1) of the Rules. The Commission considers that TTT met the first criterion as it was representative of a group of rural subscribers who would be affected by the outcome of the proceeding. Further, TTT met the second criterion as it acted in a responsible manner in its participation in the process.

13.

With regard to the third criterion set out in subsection 44(1) of the Rules, that the applicant contributed to a better understanding of the issues by the Commission, the Commission notes that the Companies and TELUS questioned the relevance of the evidence that was submitted by TTT. In this regard, the Commission is of the view that TTT submitted evidence that was relevant to the proceeding and contributed to a better understanding of the issues by the Commission. For example, TTT submitted information regarding the heavy reliance that rural and First Nations communities place on payphones.

14.

The Companies and TELUS argued that TTT's electronic bulletin board indicated that the intent of the Public Notice 2002-6 proceeding was to consider abolishing payphone service. The Companies and TELUS submitted that the Public Notice did not specifically state that the abolition of payphones was within the scope of the proceeding. As a result, they questioned the relevance of the information that was gathered and submitted as evidence by TTT. The Commission notes that the Public Notice invited parties to provide their views on, among other issues, the impact of the removal of pay telephones on consumers. While the headline on the electronic bulletin board may have been unnecessarily provocative, the information obtained from the website was relevant to the issues identified in the Public Notice, such as the extent to which consumers rely on pay telephone service and the availability of pay telephone service. The Commission further notes that TTT is not requesting compensation for the time taken to construct the website or to adapt the online survey.

15.

In light of the circumstances, the Commission considers that TTT's application met the criteria set out in subsection 44(1) of the Rules in that a) TTT represented a significant body of subscribers who will be affected by the outcome of the Public Notice 2002-6 proceeding; b) TTT participated responsibly in the proceeding and c) TTT contributed to a better understanding of the issues by the Commission.

16.

TTT has claimed $6,337.50 (48.75 hours@$130.00/hour) for Mr. John Kerr, $5,625.00 (75 hours@$75.00/hour) for Mr. Ken Jansen and $650.00 (5 hours@$130.00/hour) for Ms. Dale Kerr, amounting to $12,612.50 plus 7% GST. The full amount claimed, including GST, is $13,495.38.

17.

The Commission has considered the Companies' submissions that pursuant to paragraph 20 of Costs Order 2002-14, the fees for Ms. Kerr, Mr. Kerr and Mr. Jansen should be recalculated at the daily rate for in-house consultants. The Commission also considered TELUS' submissions that the costs claimed by Ms. Kerr and Mr. Kerr are, on that basis, excessive and non-compliant with Appendix A of the Commission's May 1998 Guidelines for the Taxation of Costs. While the Companies are correct in stating that the Commission awarded costs to TTT at the daily rate for in-house consultants in Costs Order 2002-14, the Commission notes that in the costs application that led to Costs Order 2002-14, TTT did not provide any evidence to support its request for costs at an hourly rate. The Commission further notes that in Service to high-cost serving areas proceeding - Telecom Public Notice CRTC 97-42, Taxation Order CRTC 2000-8, 26 July 2000, TTT  requested and was granted costs at an hourly rate. The Commission considers that the evidence provided in this application, that TTT does not have any salaried employees and performs all functions and responsibilities on a fee for service basis, justifies an hourly rate for Ms. Kerr, Mr. Kerr and Mr. Jansen.

18.

The Commission notes that the rates claimed in respect of consultant fees are in accordance with the rates set out in the Legal Directorate's Guidelines for the Taxation of Costs, revised as of 15 May 1998. The Commission also finds that the total amount claimed by TTT was necessarily and reasonably incurred and should be allowed.

19.

The Commission is of the view that this is an appropriate case in which to fix the costs and dispense with taxation, in accordance with the streamlined procedure set out in New procedure for Telecom costs awards, Telecom Public Notice CRTC 2002-5, 7 November 2002.

20.

The Commission notes that it has, in previous decisions, allocated the responsibility for the payment of costs among respondents on the basis of the respondents' telecommunications operating revenues (TORs), as an indicator of the relative size and interest of the parties involved in the proceeding. The Commission is of the view that, in the present circumstances, it is appropriate to apportion the costs among the respondents in proportion to their TORs, as reported in their most recent audited financial statements. Given the relative differences in telecommunications revenues between the Companies and TELUS, the Commission finds that the responsibility for the payment of costs should be allocated as follows:
    The Companies 76%
    TELUS 24%

21.

The Commission notes that Bell Canada filed submissions on behalf of the Companies and TCI filed submissions on behalf of TELUS. Consistent with its general approach articulated in Action Réseau Consommateur, the Consumers' Association of Canada, Fédération des associations coopératives d'économie familiale and the National Anti-Poverty Organization application for costs - Public Notice CRTC 2001-60, Telecom Costs Order CRTC 2002-4, 24 April 2002, the Commission makes Bell Canada responsible for payment on behalf of the Companies and TCI responsible for payment on behalf of TELUS and leaves it to the members of the Companies and TELUS to determine the appropriate allocation of the costs among themselves.
 

Direction as to costs

22.

The Commission approves the application by TTT for costs with respect to its participation in the Public Notice 2002-6 proceeding.

23.

Pursuant to subsection 56(1) of the Telecommunications Act, the Commission fixes the costs to be paid to TTT at $13,495.38.

24.

The Commission directs that the award of costs to TTT be paid forthwith by Bell Canada on behalf of the Companies and TCI on behalf of TELUS according to the proportions set out in paragraph 20.
  Secretary General
  This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca

Date Modified: 2004-11-18

Date modified: