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Ottawa, 11 June 1992
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Telecom Decision CRTC 92-10
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BELL CANADA V. ROGERS CABLE T.V. LTD. CARRYING ON BUSINESS AS ROGERS NETWORK SERVICES - APPLICATION TO REQUIRE THE FILING OF TARIFFS OF TOLLS BY ROGERS CABLE TV LTD.
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I BACKGROUND
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On 27 March 1990, Bell Canada (Bell) filed an application requesting that the Commission issue interim and final orders requiring Rogers Cable T.V. Limited (Rogers) carrying on business as Rogers Network Services (RCTV), to file for the Commission's approval tariffs of tolls for the telecommunications services it provides or offers, and to comply with all other provisions of the Railway Act. In addition, Bell requested an order directing RCTV to cease provision of any services interconnected to the public switched telephone network (PSTN), unless and until the interconnec-tions are brought into compliance with the Railway Act.
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RCTV filed its answer to Bell's application on 26 April 1990. Bell filed its reply on 7 May 1990.
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On 25 July 1990, the Commission issued Bell Canada - Application to Require the Filing of Tariffs of Tolls by Rogers Cable T.V. Limited, Carrying on Business as Rogers Network Services, CRTC Telecom Public Notice 1990-67, (Public Notice 1990-67), inviting comment on Bell's application.
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The following parties filed comments in support of Bell's application: AGT Limited (AGT), BCE Mobile Communications Inc. (BCE Mobile), British Columbia Telephone Company (B.C. Tel), Canadian Daily Newspaper Publishers Association (CDNPA), the Government of British Columbia (British Columbia), Integrated Network Services Inc. (INSINC), Southam Inc. (Southam) and Telecommunications Workers' Union (TWU).
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The following parties filed comments supporting RCTV's position: Canadian Cable Television Association (CCTA), Call-Net Telecommunications Ltd. (Call-Net) and the Government of Ontario (Ontario).
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Canadian Satellite Communications Inc. (Cancom) filed comments as to the applicability of the Railway Act with respect to resellers in general, but did not specifically support the position of either Bell or RCTV.
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II BELL'S APPLICATION
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Bell based its application on its view that RCTV is subject to federal jurisdiction and is a "company" within the meaning of section 334 of the Railway Act.
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Bell filed RCTV advertising brochures indicating that the following telecommunications services are offered by RCTV:
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(1) high speed digital facilities in primary Canadian business environments;
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(2) intra-city fibre networks;
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(3) DS-1/1.54 MB/S and DS-3/45 MB/S links;
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(4) metropolitan and wide area networks;
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(5) custom data/voice/audio/video networks;
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(6) interconnects across major Canadian centres; and
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(7) teleconferencing.
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In addition, Bell stated that RCTV is providing the following particular services:
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(1) Toronto-Vancouver networks for Wood Gundy and Canada Life;
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(2) a fibre optic facility providing the equivalent of T1 and T3 service between various locations of the Royal Bank in Toronto;
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(3) three 64 Kbps channels and one 128 Kbps channel for Crown Life between two locations in Toronto; and
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(4) a network for Petro-Canada providing the equivalent of a Megastream service linking Toronto, Montréal and Calgary.
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Bell noted that, with respect to RCTV's services between Toronto and Vancouver, traffic is delivered from a Toronto customer's PBX by fibre optic link to Rogers' satellite teleport facilities in Toronto and is then sent via a leased Telesat Canada (Telesat) RF channel to Rogers' satellite teleport facilities in Vancouver, from which it is delivered via Rogers' broadband local loops to the customer's premises in Vancouver.
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In addition, Bell noted that, in the 1989 public hearing into Rogers' capital expenditures (see Decision CRTC 89-901, 21 December 1989), Rogers indicated that the following telecommunications services were being provided:
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(1) nine private T-1 circuits in the Toronto system of RCTV leased to business users;
and
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(2) three private-use circuits using 2.7 MHz leased to business users of RCTV in Vancouver.
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Based on these facts, Bell submitted that RCTV, through the use of its fibre optic, coaxial cable and microwave facilities, has established and is operating an undertaking for the provision of telecommunications services, including interprovincial telecommunications services. Bell submitted that such an undertaking falls within the class of undertakings held by the Supreme Court of Canada in Alberta Government Telephones v. CRTC et al, [1989] 2 S.C.R. 225 (AGT v. CRTC), to be within federal jurisdiction by virtue of paragraph 92(10)(a) of the Constitution Act, 1867. Bell also argued that RCTV is a "company" within the meaning of section 334 of the Railway Act and charges "tolls" as defined in section 2 of the Railway Act.
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Bell submitted further that RCTV jointly uses and plans its facilities with those of Rogers' cable television undertakings and its cellular affiliate Rogers Cantel Inc. (Cantel), a "company" under the Railway Act. Bell also stated that RCTV uses its own facilities, combined in various cases with the facilities of existing federally regulated common carriers to provide voice, data and video services in various metropolitan centres in several provinces. In addition, Bell stated, RCTV interconnects these facilities with those of federally regulated carriers such as Telesat or Unitel Communications Inc. (Unitel). Bell argued that any services, including local services, provided on an integrated basis with or as part of a continuous system of a federal work or undertaking are part of the interprovincial system or undertaking and subject to federal jurisdiction.
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Bell concluded that RCTV is a telecommunications undertaking subject to federal regulatory jurisdiction and is a "company" under the Railway Act. Bell submitted that, in light of the judgment of the Federal Court of Appeal in Telecommunications Workers' Union v. CRTC and CNCP Telecommunications, [1989] 2 F.C. 280 (the TWU case), the Commission is under an obligation to require RCTV to file tariffs of tolls for its approval.
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In addition, Bell requested that the Commission order RCTV, to the extent that services offered by RCTV are interconnected to the PSTN, to cease provision of such interconnected services or to bring the interconnections into compliance with the Railway Act. Bell noted that other carriers are subject to contribution payments for the support of the local PSTN when they obtain such interconnection in the course of providing interexchange services.
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In concluding, Bell stated that its application was not directed towards Rogers' programming services regulated under the Broadcasting Act, but directed solely towards the telecommunications services offered by RCTV.
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III RCTV's ANSWER
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RCTV stated that it provides local telecommunications channels in Ontario and British Columbia. In addition, RCTV resells the inter-city exchange facilities of federally regulated carriers such asTelesat or Unitel. RCTV stated that the local services provided by RCTV are often combined with the resold facilities to offer a customer an end-to-end inter-city circuit. RCTV stated that the vast majority of services provided are used for data and video applications, although there are some voice applications. RCTV added that the revenue from and the resources devoted to its telecommunications operations are very small in comparison with the total revenue of Rogers.
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RCTV argued that it is an undertaking regulated pursuant to the Broadcasting Act and not an undertaking regulated pursuant to the Railway Act. RCTV referred to the principle in constitutional law of the indivisibility of undertakings, arguing that it is not two separate undertakings, but one. RCTV argued that, given that its telecommunications activities are minor in comparison with Rogers' cable television operations, the telecommunications activities can be seen as incidental to Rogers' broadcasting activities and regulated, accordingly, under the Broadcasting Act.
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RCTV cited several Commission public notices and decisions to show that the Commission has encouraged, under both the Broadcasting Act and under the Railway Act, the development of the telecommunications services it provides.
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In addition, RCTV submitted that in 1986 the Commission effectively decided, under the Broadcasting Act,to forbear from regulating the non-programming services offered by cable licensees. RCTV argued that this decision to forbear from regulating under the Broadcasting Act does not transfer jurisdiction to the Railway Act.
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With respect to the application of the Railway Act, RCTV argued that, in Interexchange Competition and Related Issues, Telecom Decision CRTC 85-19, 29 August 1985 (Decision 85-19), the Commission allowed the interconnection of private intraexchange systems with the PSTN, and that the telecommunications services RCTV offers are private intraexchange systems within the meaning of Decision 85-19. RCTV stated further that the Commission has stated that, whether or not companies offering telecommunications services wholly within a local area are "companies" within the meaning of section 334 of the Railway Act, their activities will not be regulated under that Act.
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In RCTV's view, the definition of "company" in section 334 of the Railway Act is so broad that it could include every person in Canada and that, therefore, the operative portion of the regulatory scheme deals with the charging of "telephone tolls". RCTV submitted that the definition of "telephone tolls" is also very broad, and could encompass the activities of equipment vendors, lessors, installers, resellers and enhanced service providers, as well as the provision of paging and mobile radio services. In RCTV's view, it is not the legislative intent of the Parliament of Canada to regulate all these providers. RCTV submitted that those carriers currently regulated by the Commission are indeed the type of telephone andtelegraph companies that Parliament intended be regulated under the Railway Act.
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RCTV noted that, in Enhanced Services, Telecom Decision CRTC 84-18, 12 July 1984 (Decision 84-18), the Commission interpreted the definition of "company" to include only those that may be considered to be operating a telephone or telegraph system. RCTV argued that it cannot be considered to be operating a telephone or telegraph system, since its facilities are entirely within a toll free calling area and it can only interconnect to the PSTN public data services and private line circuits for the private use of its customers. In addition, RCTV submitted that its resale of private line inter-city circuits of federally regulated carriers does not make it a "company" within the meaning of the Railway Act. RCTV argued that, if neither the provision of local channels nor the reselling of inter-city circuits constitutes the operation of a telephone system, then combining the two activities cannot make the service provider a "company" within the meaning of the Railway Act.
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RCTV argued in the alternative, that, if it can be separated into both a telecommunications and a broadcasting undertaking, and if the telecommunications undertaking can be considered to be a "company" within the meaning of the RailwayAct, then it is subject to provincial and not federal jurisdiction. RCTV stated that its facilities lie totally within the boundaries of the province, and are not an integrated part of the Canadian telecommunications system, as they are composed only of private circuits. RCTV argued that, where the degree of operational integration of an intraprovincial facility with the interprovincial system is such that the intraprovincial facility is not vital, essential, or integral to the interprovincial facility, the intraprovincial facility is subject to provincial regulation. By way of analogy, RCTV submitted that "bypass" facilities are not integral to the operation of the interprovincial work and therefore intraprovincial bypass facilities are typically subject to provincial regulation.
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Furthermore, in RCTV's view, the joint use and planning of facilities by RCTV and Cantel is not relevant to the issues in question. RCTV noted that many provincially regulated electrical power utilities share poles, conduits and other facilities with federally regulated telephone companies. RCTV stated that this sharing, which involves joint planning, does not bring provincial power utilities under federal jurisdiction.
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With respect to Bell's argument that an interconnection order is required, RCTV submitted that, inDecision 85-19, the Commission provided for the interconnection of intraexchange systems. Moreover, RCTV argued that, in accordance with the Commission's rulings in Tariff Revisions Related to Resale and Sharing, Telecom Decision CRTC 87-2, 12 February 1987, and Resale and Sharing of Private Line Services, Telecom Decision CRTC 90-3, 1 March 1990, this is not a case where contribution payments are appropriate, since its interexchange services are provided only through resale and do not permit joint use.
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RCTV also disputed Bell's statement that RCTV's provision of telecommunications services, where interconnected to the PSTN through customer PBXs, leads to the loss of contribution for the support of local service provided by Bell and other members of Telecom Canada (now Stentor Canadian Network Management).
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Finally, RCTV argued that this is not an appropriate case for the Commission to grant interim relief.
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IV BELL'S REPLY
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Bell stated that the fact that Rogers is authorized or permitted to provide non-programming services under the Broadcasting Act does not derogate from, or contradict, the fact that Rogers, through its division Rogers Network Services has also established and is operating an interprovincial telecommunicationsundertaking that is subject to the Railway Act.
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Bell submitted that RCTV misinterpreted Decision 85-19. According to Bell, that Decision dealt with undertakings providing intraexchange or local services other than primary exchange voice service, whereas RCTV is providing end-to-end interexchange circuits and services. Bell submitted further that the Commission expressly refrained in Decision
85-19 from deciding whether undertakings providing solely intraexchange services are "companies" within the meaning of the Railway Act.
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In Bell's submission, the fact that a company or undertaking may limit its offerings to private line services has no bearing on whether or not it is a "company" within the meaning of the Railway Act. Bell noted that the Railway Act was amended to include charges for the use or lease of private lines.
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Bell challenged RCTV's reliance on the constitutional law principle of indivisibility of an undertaking, in support of RCTV's position that it is regulated under the Broadcasting Act and not under the Railway Act. Bell stated that its application does not suggest that RCTV's operations are divided between provincial and federal regulatory jurisdiction.
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According to Bell, there is no rule of constitutional law, common law or statutory interpretation that the various activities of a single corporation cannot be subject to more than one federal statute. For example, Bell noted that both cable licensees and federally regulated telecommunications carriers are subject to the licensing requirements of the Radiocommunication Act.
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In Bell's view, RCTV's suggestion that its telecommunications operations could be subject to provincial jurisdiction violates the constitutional principle of indivisibility cited and relied upon by RCTV.
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According to Bell, the regulation of Rogers under the Broadcasting Act, including any authorization permitting Rogers to offer non-programming services, does not grant RCTV an exemption from the Railway Act or any statute generally applicable to federal telecommunications undertakings. Bell submitted that the size of Rogers telecommunications activities, as compared to its cable activities, is irrelevant in determining the Commission's jurisdiction under the Railway Act.
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Bell disagreed with RCTV's argument that the definitions of "company" and "telephone toll" contained in the Railway Act do not apply to its telecommunications operations. Bell submitted that, as a matter of constitutional and statutory interpretation, it is improper to examine the operations or services of RCTV on a piecemeal or segmented basis in order to determine whether it is a "company" within the meaning of the Railway Act. Bell argued that the principle of indivisibility holds that such an approach is incorrect in law. In Bell's view, the correct approach is to examine the services that are actually provided.
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Bell stated that federal jurisdiction with respect to RCTV's telecommunications operations is supported by the evidence of RCTV's control and operation of an integrated interprovincial telecommunications system providing service between Toronto and Vancouver delivered by combining and operating various facilities across Canada.
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Bell argued that RCTV's telecommunications operations are not analogous to "bypass" pipeline facilities, given that RCTV operates an integrated telecommunications system or network of facilities across several provinces providing end-to-end service. Bell added that, for this reason, RCTV is also distinct from resellers and enhanced service providers who do not have their own facilities.
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Bell also pointed out that there is a significant difference between, on the one hand, cooperation among arm's length power, telephone, gas, water or other utilities regarding the placement of facilities and, on the other hand, close joint operation, planning, management and use of common facilities by two integrated interprovincial communications companies, that is, Rogers and Cantel.
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Finally, Bell submitted that the protection of the public interest requires that an interim order be issued.
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V COMMENTS IN RESPONSE TO PUBLIC NOTICE 1990-67
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A. Interveners
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AGT, B.C. Tel, CDNPA, British Columbia, TWU and Southam were of the view that the respondent is subject to federal jurisdiction on the grounds that it is providing interprovincial services by means of an integrated local and interprovincial system. Several of these interveners pointed to RCTV's provision of end-to-end interprovincial services, while AGT noted the integrated nature of RCTV, Cantel and Unitel. Those that commented on the need for approval of any interconnection with the PSTN agreed with Bell's position. All concluded that the respondent is a "company" within the meaning of the Railway Act.
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Call-Net and Ontario agreed that the respondent is not a "company" within the meaning of the Railway Act. Call-Net submitted that RCTV does no more than provide customers with a means to access the telecommunications carriers, an activity sanctioned by Decision 85-19. In Call-Net's view, the definition of "company" cannot be read as applying to all companies who supply equipment or facilities that are no longer considered by the Commission to be integral to the telephone companies' network operations.
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Ontario submitted that the Commission can make no finding that RCTV is subject to the Railway Act unless the telecommunications services it provides are practically and realistically severable from Rogers as a whole and complete undertaking. In Ontario's view, the telecommunications activities of Rogers appear to be subsidiary and incidental to those of Rogers as an organization, which exists primarily to hold and operate licensed broadcast receiving undertakings.
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CCTA submitted that the Commission has dealt with the issue raised in Bell's application appropriately and legally within its mandate under the Broadcasting Act.
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B. RCTV's Response to Interveners' Comments and to Bell's Reply
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Among other things, RCTV denied that it provides facilities-based telecommunications circuits on an interprovincial basis. RCTV stated that its telecommunications facilities are local and that all interprovincial circuits are provided by RCTV by reselling the facilities of Telesat or Unitel. RCTV added that its local facilities are sometimes combined with resold interexchange circuits to provide customers with an end-to-end interexchange service. RCTV stated that no telecommunications facilities owned by Cantel are used by RCTV to provide telecommunications services. RCTV also denied that it operates intraexchange facilities in Alberta for the purpose of providing telecommunications services to customers.
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RCTV stated that the fact that the Commission has decided to forbear from rate-setting under the
Broadcasting Act does not mean that it could not exercise such powers. RCTV submitted that the Commission can exercise rate-setting powers for the telecommunications services of RCTV under the Broadcasting Act, or, if Bell is correct, under the Railway Act. RCTV stated that, in order to determine which Act or whether both Acts apply, one must look at the undertaking as a whole and ask what type of undertaking it is.
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RCTV submitted that there is one corporate entity that uses facilities to deliver cable television service and employs unused capacity to deliver non-programming services. RCTV thus concluded that there is one undertaking that cannot be severed and that should be regulated under the legislation applicable to cable undertakings.
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RCTV rejected Bell's submission that it can be subject to both the Broadcasting Act and the Railway Act just as Bell is subject to the Railway Act and the Radiocommunication Act. RCTV argued that Bell's analogy fails to recognize the true nature of the Commission's powers under the Broadcasting Act, which,unlike the Radiocommunication Act, creates a complete regulatory framework.
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RCTV added that, if its facilities attract federal regulation because they are interconnected, it would request permission to operate on a non-interconnected basis, given that interconnection is not generally required.
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RCTV denied Bell's submission that the sharing of facilities by Rogers and Cantel involves the joint operation and use of common fibre optic facilities. Rather, RCTV stated that there is joint planning for the fibre optic transmission facilities, joint usage of the cable sheath and support structures, and sharing of hub sites.
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C. Bell's Final Comments
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In response to the interveners' comments and RCTV's response to interveners, Bell stated, among other things, that RCTV, unlike resellers and enhanced service providers, owns and operates its own network of facilities, including fibre optic transmission lines, teleports and switches in several provinces, which it combines in an integrated manner to provide customers with an end-to-end interexchange service between cities such as Toronto and Vancouver. Therefore, Bell argued, Decision 85-19 does not provide support for the position that RCTV is not a"company".
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Bell stated that the fact that two regulatory statutes may be applicable does not require a tribunal or a court to choose one over the other. Under the rules of statutory interpretation, Bell submitted, two regulatory acts or statutes may apply unless there is a clear and unavoidable conflict between the two. In Bell's view, regardless of whether or not the Commission has powers under the Broadcasting Act to regulate the rates, terms and conditions of RCTV's telecommunications services, there is no conflict between the requirements of the Broadcasting Act and the requirements of the Railway Act in respect of the telecommunications services of Rogers, particularly where the Commission has not exercised any such powers. Accordingly, Bell argued that there is no basis to suggest, as RCTV does, that the Broadcasting Act must prevail and that the Railway Act is inoperative in this case. Moreover, there is no rule of statutory interpretation, in Bell's view, to support the application of the notion of "severability" in these circumstances. Bell stated that, on the contrary, this is a case of a federal corporation that is required to conform to several federal statutes respecting its various activities.
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Bell submitted that RCTV's argument, that it is a single cable undertaking that is simply utilizing unused capacity for its telecommunications activities, is at odds with the evidence in the proceeding leading to Decision CRTC 89-901. Bell noted that the evidence in that proceeding was that the determination as to the number of fibres required for Rogers' telecommunications purposes is made independently from the determination by the cable side of the company of its fibre requirements.
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Finally, referring to Canadian Pacific Railway as an example, Bell noted that there is nothing unusual about a corporation establishing several undertakings within the corporation.
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VI CONCLUSIONS
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A. General
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The Commission has reviewed the submissions made by the parties and concludes that Rogers is a "company" within the meaning of section 334 of the Railway Act, given that RCTV is offering end-to-end interprovincial telecommunications services using its own local facilities in Toronto and Vancouver, combined with resold interexchange services. In arriving at this conclusion, the Commission has examined the following legal issues:
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(1) Is RCTV operating a telecommunications undertaking that falls within federal jurisdiction pursuant to subsection 91(29) and paragraph 92(10)(a) of the Constitution Act, 1867?
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(2) If it is within federal jurisdiction, is RCTV a "company" within the meaning of section 334 of the Railway Act?
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B. Is RCTV Operating an Inter-provincial Telecommunications Undertaking Within the Meaning of Paragraph 92(10)(a) of the Constitution Act, 1867?
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Before the Commission can determine whether RCTV is subject to federal jurisdiction, it must address the question of whether RCTV is in fact operating a telecommunications undertaking. The Commission rejects RCTV's argument that it is not carrying on a telecommunications undertaking, but rather that its telecommunications activities are part of the broadcasting undertaking carried on by Rogers.
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The Commission notes that, as Bell points out, an undertaking is,
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... not a physical thing, but is an arrangement under which of course physical things are used. Re Regulation and Control of Radio Communication, [1932] A.C. 304 at 315.
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Based on this definition of "undertaking", the Commission agrees with Bell that RCTV has established and is operating an undertaking for the provision of telecommunications services, through the use of its fibre optic and coaxial cable facilities, combined in some cases with resold facilities. The Commission accepts Bell's submissions that a single corporate entity can establish several undertakings within its corporate structure.
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Turning to the constitutional issue, subsection 91(29) and paragraph 92(10)(a) of the Constitution Act, 1867 provide that Parliament has authority over telecommunications undertakings that connect one province with another or that extend beyond the limits of one province.
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The Commission recognizes that there is no single comprehensive test to apply in determining whether an undertaking falls within federal jurisdiction by virtue of these provisions. The Commission does not, however, accept RCTV's position insofar it is based on RCTV's physical facilities. RCTV argued that, if there is a separate undertaking, it is subject to provincial regulation on the grounds that its facilities lie totally within the boundaries of the province and are not an integrated part of the Canadian telecommunications system, being composed only of private circuits. In the Commission's view, the fact that the physical structures of an undertaking are located entirely within one province does not mean the undertaking is necessarily local in nature. In any event, as Bell pointed out, RCTV uses its own facilities in more than one province to provide telecommunications services that cross provincial boundaries.
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In determining the constitutional issue in this case, the Commission has relied on the Supreme Court of Canada's approach suggested in AGT v. CRTC, supra. In that case, theCourt emphasized that the constitutional issue will depend on the particular facts in each situation. It suggested further that,
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The primary concern is not the physical structures or their geographical location, but rather the service which is provided by the undertaking through the use of its physical equipment. (AGT v. CRTC, supra, at pp. 258-259).
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As noted above, RCTV has taken the position that, since it carries customers' traffic across provincial boundaries on facilities that it leases and does not own, RCTV cannot be said to be carrying on an interprovincial undertaking. The Commission notes that, while RCTV leases facilities to carry traffic from one province to the other, the service offered by RCTV is more than mere access to the leased facilities. As RCTV stated in its answer, RCTV provides local telecommunications services in Ontario and British Columbia. However, these local services are often combined with resold inter-exchange facilities to give the customer an end-to-end inter-exchange circuit. The record of this proceeding establishes further that, in some cases, the services provided by RCTV involve the transmission of messages between exchanges in more than one province, for example, between Toronto and Vancouver. As Bell stated in its application, RCTV describes its services in its brochure as follows:
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Integrating state-of-the-art technology and facilities, fiber optics, broadband coaxial and satellite networks are used to service data, voice, broadcast radio, video and business television applications. Acting as one point of contact, we service what we sell with the same dedication and commitment to excellence. We provide complete end-to-end service.
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In its brochure, RCTV also describes the configuration of its Toronto-Vancouver service, which is presented as an example of an integrated voice/data network.
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Based on the record of this proceeding, the Commission finds that RCTV offers and provides end-to-end telecommunications services, including interprovincial end-to-end telecommunications services, using its own local distribution systems in more than one province.
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On the basis of these facts, the Commission concludes that RCTV is operating an interprovincial telecommunications undertaking that falls within the scope of paragraph 92(10)(a) of the Constitution Act, 1867.
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C. Is RCTV a "Company" Within the Meaning of the Railway Act?
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The Commission has the jurisdiction to regulate "companies" charging telegraph or telephone "tolls" as defined, respectively, in section 334 and subsection 2(1) of the Railway Act. Section 334 of the Railway Act provides that a "company" includes
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:... every company and person within the legislative authority of Parliament having power to construct or operate a telegraph or telephone system or line and to charge telegraph or telephone tolls.
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As stated in Decision 84-18 at pages 30-31:
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... the jurisdiction granted to [the Commision] by the Railway Act may properly be viewed as extending only to those companies within federal jurisdiction that may be considered to be operating a telephone or telegraph system.
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The Commission disagrees with RCTV's conclusion that it cannot be considered to be operating a telephone or telegraph system. As noted above, the record of this proceeding establishes that RCTV offers and provides end-to-end data, video, and voice telecommunications services using its local distribution systems located in several provinces, in combination, in some cases, with resold interexchange circuits. RCTV owns and controls the fibre optic and coaxial local loops that it uses at the originating and receiving ends to transport the customer's traffic. The telecommunications servicesprovided by RCTV thus depend on transmission facilities that are actually operated by RCTV. In light of these facts, the Commission finds that RCTV is operating a telephone or telegraph system. Moreover, by charging its clients for the transmission of messages by telephone or telegraph, RCTV is charging "tolls" as defined in subsection 2(1) of the Railway Act. The Commission therefore finds that RCTV is a "company" within the meaning of section 334 of the Railway Act.
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Finally, the Commission rejects RCTV's argument that Rogers' cable activities and its telecommunications activities can be subject to regulation under the Broadcasting Act. The Commission is not granted the jurisdiction under the Broadcasting Act to regulate the telecommunications activities of cable licensees directly. Moreover, section 335 of the Railway Act states explicitly that the requirement of a "company" to file tolls applies notwithstanding any other Act, subject to subsection 335(1.1). Subsection 335(1.1) exempts companies from the requirement to obtain the Commission's approval merely in respect of tolls "for the delivery of programs" charged to subscribers by companies licensed under the Broadcasting Act.
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The Commission is of the view that section 335(1.1) of the Railway Act does not exempt Rogers from the requirement to file tariffs of tolls for Commission approval for the telecommunications services it offers.
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Accordingly, the relevant sections of the Railway Act and the Broadcasting Act do not present, explicitly or implicitly, any unavoidable conflict in respect of the regulation of the rates for the telecommunications services offered by RCTV. The Commission, therefore, concludes that the regulation of Rogers' cable operations pursuant to the Broadcasting Act does not preclude the application of the Railway Act to Rogers' telecommunications activities.
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In addition, the Commission agrees with Bell that the size of RCTV's telecommunications activities relative to Rogers' broadcasting activities is not a relevant factor in determining whether RCTV is a telecommunications undertaking that is subject to the Railway Act.
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D. Disposition
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In light of the above, Rogers is ordered to file by 9 October 1992, tariffs of tolls for the Commission's approval, and to comply with the relevant provisions of the Railway Act relating to interconnection.
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Allan J. Darling
Secretary General
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