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Ottawa, 16 August 1993
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Telecom Costs Order CRTC 93-8
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In re: Telecom Public Notice CRTC 92-64, The New Brunswick Telephone Company Limited - Incentive Regulation
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Application for Costs by the New Brunswick Anti-Poverty Association and the Consumers' Association of Canada (NBAPA/CAC)
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Background
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By letter dated 23 November 1992, the New Brunswick Telephone Company Limited (NBTel) advised the Commission that it wished to withdraw its application for incentive regulation, which was to be considered by the Commission in a public proceeding announced in The New Brunswick Telephone Company Limited - Incentive Regulation, Telecom Public Notice CRTC 92-64, 19 October 1992, (P.N. 92-64). The Public Interest Advocacy Centre (PIAC), counsel for the applicants NBAPA/CAC, wrote to the Commission on 23 November 1992 requesting that the Commission make the reimbursement by NBTel of NBAPA/CAC's properly incurred expenses relating to this proceeding a condition of NBTel's withdrawal of its application for incentive regulation.
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By letter dated 27 November 1992, the Commission approved the withdrawal by NBTel of its proposal for incentive regulation, and cancelled the public proceeding associated with P.N. 92-64. In addition, the Commission set out a process for filing submissions on whether, to what extent, and on what basis NBAPA/CAC should be reimbursed for the costs it incurred in the proceeding, prior to its cancellation.
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Submissions of the Parties
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In its comments filed on 9 December 1992, NBAPA/CAC submitted, among other things, that costs should be awarded based on the criteria set out in paragraphs 44(1)(a) and (b) of the CRTC Telecommunications Rules of Procedure (the Rules). The applicants argued that paragraph 44(1)(c) of the Rules should not apply since there is no way of measuring the contribution of the interveners at this stage of the proceeding. In the alternative, NBAPA/CAC submitted that the Commission could consider whether the interveners would likely have contributed to a better understanding of the issues by the Commission, had the proceeding continued. The applicants suggested that they could file in confidence their draft evidence. Finally, the applicants submitted that the standard rules of taxation should apply. NBAPA/CAC concluded that it has met the criteria in paragraphs 44(1)(a) and (b) of the Rules in that it is representative of a body of subscribers that would have been affected by the decision, and that it participated responsibly in the proceeding.
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In its response filed on 23 December 1992, NBTel, among other things, questioned the need for NBAPA/CAC's intervention and the basis for the claim that NBAPA/CAC represents New Brunswick telephone subscribers. NBTel expressed its concern that certain interveners view an award of costs as automatic. The company submitted that interveners must be required to justify the basis for their intervention, and their requirement for expenditures, in each proceeding. In addition, while the company agreed with the applicants with respect to the criterion for evaluating the evidence, NBTel argued that the evidence should not be filed in confidence and the company should have the opportunity to evaluate the evidence and to comment on the potential value of the evidence to the Commission.
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In their reply dated 30 December 1992, the applicants noted that CAC has a long history of representing residential telephone subscribers in CRTC proceedings, and that NBAPA, while a relatively new group, is closely associated with the National Anti-Poverty Organization, which also has a long history of representing low income residential subscribers before the Commission. The applicants submitted that they chose to participate in the proceeding established in P.N. 92-64 given its enormously important implications.
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Pursuant to the Commission's direction in its letter dated 15 April 1993, NBAPA/CAC filed the draft evidence that it was in the course of preparing when NBTel withdrew its application for incentive regulation. In its comments filed on 27 April 1993, NBTel submitted that the issue to be determined is whether the information provided by the applicants would have assisted the Commission in its deliberations and whether this information provided any additional information or insight to the Commission which was not readily available or not already in the Commission's possession. The company addressed the quality of draft evidence and concluded that the applicants' claim is neither reasonable nor appropriate and should be dismissed. In addition, NBTel commented on the specific amounts being claimed by the applicants. NBAPA/CAC filed its reply on 5 May 1993.
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Commission's conclusions
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The Commission has carefully considered the submissions of NBAPA/CAC and NBTel and has disposed of this application pursuant to its power under section 76 of the National Telecommunications Powers and Procedures Act.
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As the Commission stated in CRTC Procedures and Practices in Telecommunications Regulation, Telecom Decision CRTC 78-4, 23 May 1978, the purpose of an award of costs is the encouragement of informed public participation in Commission proceedings. In order to ensure that this objective is met, the Commission considers that interveners who have incurred expenses in preparation for a proceeding, and who would otherwise qualify to apply for costs, should not be effectively penalized where a proceeding has been discontinued at the request of the applicant.
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The Commission is of the view that both CAC and NBAPA are representative of a class of subscribers, residential and low income residential, with an interest in the outcome of the proceeding.
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The Commission notes that the performance of CAC in past Commission proceedings has, subject to very few exceptions, been satisfactory, and that CAC has received its full costs in respect of the vast majority of proceedings in which it has participated. NBAPA, while a recently-established organization, has also performed in a satisfactory manner before the Commission to date and has been awarded full costs.
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With respect to the present proceeding, the Commission considers that NBAPA/CAC participated in a responsible manner in the sense that it filed its notice of intention to participate and was preparing evidence to be filed.
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The Commission notes, in passing, the topics that the applicants intended to address in their evidence, as set out in the draft evidence filed with the Commission, were generally relevant to the subject matter of the proceeding. The Commission considers, however, that given the particular circumstances of this case, it would be inappropriate to assess whether the applicants contributed, or would likely have contributed, to a better understanding of the issues by the Commission. This criterion is normally applied based on the final record of the proceeding. Since the applicants' evidence was at a preliminary stage when the proceeding was discontinued, it is not possible to know what the final document would have contained. Moreover, the Commission had not yet received the company's response to the Commission's interrogatories, the additional evidence requested by the Commission, or any evidence from interveners when NBTel indicated its intention to withdraw its application. As a result, there is little context in which to evaluate the applicants' draft evidence.
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Finally, the Commission notes that the proceeding initiated by P.N. 92-64 was established in order to properly review NBTel's proposal for incentive regulation, which was originally included in the company's evidence filed pursuant to Telecom Public Notice CRTC 92-42, 24 July 1992.
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In light of the foregoing, the Commission is satisfied that an award of costs in this particular case would further the objectives of the Commission in encouraging full and informed participation in its proceedings.
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DIRECTION AS TO COSTS
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1. The Commission hereby approves the application for costs by NBAPA/CAC in respect of the discontinued proceeding established by P.N. 92-64.
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2. Costs awarded herein shall be paid to the NBAPA/CAC by NBTel.
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3. Costs awarded herein shall be subject to taxation in accordance with the Rules.
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4. Costs awarded herein shall be taxed by Carolyn Pinsky.
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5. Pursuant to the Commission's request in a letter dated 5 April 1993 to Ms. Phillipa Lawson, counsel for NBAPA/CAC, the applicants filed, on 15 April 1993, a copy of their draft evidence as it stood when NBTel withdrew its application, as well as its Bill of Costs and Affidavit of Disbursements. The Commission notes that, in its comments filed on 27 April 1993, NBTel addressed matters relating to the taxation of the applicants' costs, and, by letter dated 5 May 1993, the applicants replied thereto.
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6. NBTel may, by 30 August 1993, file any additional comments, not already covered in its 27 April 1993 submissions, with respect to the costs claimed by NBAPA/CAC with the Taxing Officer, serving a copy thereof on NBAPA/CAC.
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7. NBAPA/CAC may, by 13 September 1993, file a reply to the company's additional comments, and serve a copy thereof on NBTel.
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8. All documents to be filed or served by a specific date must be actually received, not merely mailed, by that date.
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Allan J. Darling
Secretary General
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