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Ottawa, 4 October 1993
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Telecom Public Notice CRTC 93-62
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EXEMPTION OF RESELLERS FROM REGULATION
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In Application by TWU - Status of Resellers Under the Railway Act, Telecom Decision CRTC 92-11, 11 June 1992 (Decision 92-11), the Commission found that:
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... where a reseller offers end-to-end basic telecommunications service by means of interprovincial services or facilities that it configures, and where it exercises control over the carriage and routing of its traffic, it falls within federal jurisdiction and is operating a telephone system or line. Accordingly, it is a "company" within the meaning of section 334 of the Railway Act.
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In considering whether or not a reseller could be considered to be operating a system or line, the Commission stated that it was:
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... not persuaded that it is only carriers who are responsible for the operation of telecommunications systems. In the Commission's view, resellers may determine which services or facilities to lease in order to provide their services and may aggregate and switch the traffic to be sent over their systems. Furthermore, in certain circumstances, resellers do control the routing of messages over their leased services or facilities. Resellers typically lease services and facilities from carriers and program their switches to determine how to route their traffic over these services and facilities. In such cases, it is the reseller, not the carrier, who determines the routing, thereby operating the system carrying the traffic.
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Pursuant to Decision 92-11, those resellers that the Commission found to be "companies" within the meaning of section 334 of the Railway Act have been filing tariffs for the prior approval of the Commission.
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In June 1993, Parliament enacted the Telecommunications Act, S.C. 1993, c.38 (the Act), which is to come into force on 25 October 1993. The Act will repeal telecommunications-related provisions of the Railway Act. In order to satisfy, among other things, the intent of Parliament that resellers who do not have basic transmission facilities should not be subject to Commission regulation, a series of related definitions were included in section 2 of the Act, as follows:
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"Canadian carrier" means a telecommunications common carrier that is subject to the legislative authority of Parliament;
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"telecommunications common carrier" means a person who owns or operates a transmission facility used by that person or another person to provide telecommunications services to the public for compensation;
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"transmission facility" means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus;
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"exempt transmission apparatus" means any apparatus whose functions are limited to one or more of the following:
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(a) the switching of telecommunications,
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(b) the input, capture, storage, organization, modification, retrieval, output or other processing of intelligence, or
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(c) control of the speed, code, protocol, content, format, routing or similar aspects of the transmission of intelligence.
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In the Commission's view, resellers would not be subject to the provisions of the Act applicable to Canadian carriers, including the requirement to file tariffs for prior Commission approval. Therefore, under the Act, resellers, including those that were required to do so pursuant to Decision 92-11, will not be required, among other things, to file tariffs for Commission approval, and any reseller tariffs approved by the Commission prior to 25 October will cease to have effect on that date.
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However, any reseller subject to the legislative authority of Parliament that becomes a hybrid interexchange carrier and provides telecommunications services by means of transmission facilities interconnected under the terms established for the interconnection of facilities-based carriers in Competition in the Provision of Public Long Distance Voice Telephone Services and Related Resale and Sharing Issues, Telecom Decision CRTC 92-12, 12 June 1992, would be considered by the Commission to be a "Canadian carrier" under the Act, and would be subject to Commission regulation, including the requirement to file tariffs for the Commission's prior approval. For example, in TelRoute Communications Inc. - Interconnection with Bell Canada, Telecom Decision CRTC 93-13, 3 September 1993, the Commission approved the application by TelRoute Communications Inc. (TelRoute) to interconnect with Bell Canada as a facilities-based carrier and noted that TelRoute would be required to file tariffs for Commission approval once its facilities were in place.
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Allan J. Darling
Secretary General
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