|
|
|
|
Telecom Costs Order CRTC 93-7
|
In re: Newfoundland Telephone Company Limited - Revenue Requirement for 1992 and 1993, Telecom Decision CRTC 92-15: Application for Costs
|
Application for costs by the Office of the Consumer Advocate (OCA).
|
|
|
In its answer to the application of OCA, Newfoundland Telephone Company Limited (Newfoundland Tel) noted that subsection 117(3) of the Public Utilities Act (PU Act) provides that all costs relating to the OCA shall be borne by the Newfoundland Public Utilities Board (PUB). The company submitted that in view of this provision, the Taxing Officer (sic) should determine that no costs should be awarded.
|
In reply, the OCA submitted that the PU Act governs the activities of the PUB, which has no jurisdiction over Newfoundland Tel. The OCA further submitted that subsection 117(3) applies only to recovery of costs from utilities over which the PUB has jurisdiction; since Newfoundland Tel now falls within federal jurisdiction, the OCA submitted that the legislation is inapplicable.
|
|
|
In addition to the criteria set out in subsection 44(1) of the CRTC Telecommunications Rules of Procedure (the Rules), when making awards of costs the Commission has been guided by the principles established in CRTC Procedures and Practices in Telecommunications Regulation, Telecom Decision CRTC 78-4, 23 May 1978; namely that, in order to meet the objective of informed participation in public hearings, costs awards are to be made available to responsible interveners who lack sufficient funds to properly prosecute their cases, particularly where such interveners represent the interests of a substantial number or class of subscribers. Consistent with this principle, even those interveners that meet the criteria set out in subsection 44(1) of the Rules will generally not receive costs, to the extent of any specifically-directed outside funding.
|
In the present case, the Commission notes that while subsection 117(3) of the PU Act provides that all costs relating to the consumer advocate shall be borne by the PUB, subsection 13(1) of the same statute provides that the expenses of the PUB are to be borne pro rata by all public utilities with annual gross earnings over a certain level. The Commission also notes that subsection 90(2) provides that the PUB may order payment of the PUB's own costs for a particular hearing by the utilities concerned. Section 4 provides that the Act applies only to public utilities that are subject to the legislative authority of the province.
|
On a cursory reading of the PU Act, it would appear that, as submitted by Newfoundland Tel, the PUB is legally responsible for the costs of the OCA in this proceeding; however, the Commission is of the view that subsection 117(3) of the PU Act is to be read down, for the purpose of this application, so as to apply only to those costs of the OCA that relate to interventions before the PUB with respect to utilities under PUB jurisdiction. The Commission considers that to hold otherwise would lead to the absurd and inequitable result that the various provincially regulated public utilities of Newfoundland and Labrador, and in turn their subscribers, would be required to fund an intervention before a federal tribunal relating to a rate case for a federally regulated utility.
|
Accordingly, the Commission finds that the OCA is eligible for an award of costs.
|
|
|
1. The application of the OCA for an award of costs in respect of the above titled proceeding is hereby approved, on the following terms.
|
2. The Commission considers that the OCA has not fully met the criteria set out in subsection 44(1) of the Rules. In particular, the Commission is unable to conclude that all aspects of the OCA's participation were responsible or contributed to a better understanding of the issues by the Commission. Specifically, the Commission is of the view that a portion of the OCA's cross-examination was designed to further the knowledge of OCA counsel rather than to shed light on the issues before the Commission. Counsel also appeared to be ill-prepared at times. In the Commission's view, some of the participation of the OCA led to unnecessary transcript time, which Newfoundland Tel subscribers should not be called upon to fund.
|
3. At the same time, the Commission considers that the portion of the OCA's intervention dealing with the establishment of an appropriate rate of return for the company was generally of assistance to the Commission. The Commission notes in particular that, unlike some other financial witnesses that appear before the Commission from time to time, the OCA's witnesses included in their evidence a helpful critique of the evidence submitted by the company's rate of return witnesses.
|
4. The Commission has therefore concluded that the OCA is entitled to all of its costs for fees and disbursements of its financial witnesses and 75% of its other costs. In making this award, the Commission is making allowance for the fact that this was OCA Counsel's first hearing before the Commission, and that, with the exception of its financial witnesses, counsel alone was responsible for the preparation of what attempted to be a broadly-based, consumer interest-oriented intervention.
|
5. Costs awarded herein shall be payable to the OCA by Newfoundland Tel.
|
6. Costs awarded herein shall be subject to taxation in accordance with subsection 44(6) of the Rules.
|
7. Costs awarded herein shall be taxed by David Elder.
|
8. The OCA shall, within thirty days of the issue of this order, submit a Bill of Costs and an Affidavit of Disbursements to the Taxing Officer, serving a copy on Newfoundland Tel.
|
9. Within two weeks of receipt of these documents, Newfoundland Tel may file comments with the Taxing Officer with respect to the costs claimed, serving a copy on OCA.
|
10. The OCA may, within two weeks of receiving comments from Newfoundland Tel, file its reply, serving a copy on the company.
|
11. In all cases, documents must actually be received, not merely mailed, by the dates indicated.
|
Allan J. Darling
Secretary General
|