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ARCHIVED -  Telecom Decision CRTC 94-22

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Telecom Decision

Ottawa, 4 November 1994
Telecom Decision CRTC 94-22
CITY OF CALGARY - APPLICATION TO REVIEW AND VARY TELECOM DECISIONS CRTC 93-9 AND 93-18
I BACKGROUND
Prior to 4 October 1990, the Alberta Government Telephones Commission (the AGT Commission), a Crown corporation, provided telephone service in Alberta. As a Crown corporation, the AGT Commission was exempt from federal and provincial income taxes. Thus, it never claimed Capital Cost Allowance (CCA).
On 4 October 1990, following the reorganization and privatization of the AGT Commission, most telephone operations and assets were transferred to AGT Limited (AGT), a subsidiary of Telus Corporation (Telus), which then came under the Commission's jurisdiction.
In preparing for the reorganization and privatization of the AGT Commission, the Government of Alberta obtained an advance Income Tax Ruling from Revenue Canada that effectively permits Telus and its subsidiaries (including AGT) to claim as Undepreciated Capital Cost for income tax
purposes, the original cost of the assets transferred from the AGT Commission. AGT estimated that its depreciable assets had a tax basis of approximately $4.0 billion on 4 October 1990, an amount substantially exceeding the carrying (net book) value of the assets (approximately $2.2 billion) at that time. This additional CCA available from the excess of the original cost over the net book value of the assets at the time of privatization creates Additional Tax Deductions (ATDs) of approximately $1.8 billion. AGT also estimated that there were a number of transactions related to the privatization and to operations both before and after privatization that would create further ATDs of approximately $0.7 billion. AGT estimated that the total ATDs amount to approximately $2.5 billion.
In AGT - Issues Related to Income Taxes, Telecom Decision CRTC 93-9, 23 July 1993 (Decision 93-9), the Commission determined, among other things, that the ATDs were a utility asset and that a shareholder entitlement to the ATDs in the amount of $183 million would not be unreasonable. The Commission accepted $183 million as the maximum amount of the shareholder entitlement, subject to the resolution of certain legal issues related to whether recovery of the entire $183 million would in some manner constitute retrospective rate-making.
In AGT Limited - Revenue Requirements for 1993 and 1994, Telecom Decision CRTC 93-18, 29 October 1993 (Decision 93-18), the Commission concluded that full recovery of the shareholder entitlement would not lead to retrospective rate-making and that the final amount of the shareholder entitlement would be $183 million.
By letter dated 4 March 1994, the City of Calgary (Calgary) filed an application, pursuant to section 62 of the Telecommunications Act (the Act), requesting that the Commission review and vary portions of Decisions 93-9 and 93-18. Specifically, Calgary requested that the Commission (1) vary Decision 93-9 in so far as it relates to the shareholder entitlement; (2) provide full and complete reasons with regard to both the determination of the shareholder entitlement in Decision 93-9 and its application to review and vary; and (3) vary Decision 93-18 to eliminate the amount of shareholder entitlement to be recovered in rates for 1994 and/or subsequent years.
The criteria by which the Commission determines whether or not to review and vary its telecommunications decisions (see Telecom Decision CRTC 79-1, 2 February 1979) require that, in order for the Commission to exercise its power under section 62 of the Act, the applicant must demonstrate, on a prima facie basis, the existence of one or more of the following:
(1) an error in law or in fact;
(2) a fundamental change in circumstances or facts since the decision;
(3) a failure to consider a basic principle raised in the original proceeding;
(4) a new principle which has arisen as a result of the decision.
In addition, notwithstanding the lack of prima facie evidence that any of the above criteria had been met, it is open to the Commission to determine that there is substantial doubt as to the correctness of its original decision and that reappraisal is accordingly warranted. This is not so much a fifth criterion, however, as it is a statement of the residual discretion that exists within section 62 of the Act.
Calgary based its application on the following grounds:
(1) the Commission erred in law or in fact in acceding to AGT's claims for confidentiality with respect to information filed in the proceeding leading to Decision 93-9, where there was no evidence on the public record showing or intending to show that public disclosure would cause specific harm to AGT;
(2) the Commission erred in law or in fact in giving no reasons or insufficient reasons to enable the parties to understand the rationale of Decision 93-9, particularly in respect of the determination that AGT's shareholder (Telus) was entitled to a maximum entitlement of $183 million;
(3) the Commission failed to consider certain financial principles in comparing the $183 million of shareholder entitlement to the $2.5 billion of ATDs;
(4) the Commission departed from the basic concepts of utility regulation when it determined that the ATDs were a utility asset, but that the shareholder should receive compensation in addition to that normally provided under the revenue requirement/cost of service method of utility regulation; and
(5) in finding that the shareholder was entitled to $183 million of the ATDs, the Commission failed to consider all of the evidence and the implication of other determinations made in Decision 93-9.
AGT responded to Calgary's application on 4 April 1994. Calgary filed its reply on 18 April 1994.
II ISSUES
A. Denial of Natural Justice
Calgary submitted that the Commission erred, and denied Calgary natural justice, when it acceded to AGT's claim of confidentiality on a significant portion of the record of the proceeding leading to Decision 93-9. Calgary argued that the extensive use of confidential documents severely limited the effectiveness of its participation in the public proceeding. Further, Calgary submitted that the Commission denied it the opportunity of knowing, on the record, the reasons for AGT's claim, contrary to section 19 of the CRTC Telecommunications Rules of Procedure (the Rules).
AGT noted that, in an "off the record" meeting with Calgary, it made the reasons for its confidentiality claims known to Calgary. AGT further noted that the Commission constantly revised its procedures specifically to take into account Calgary's concerns regarding confidentiality and, in fact, reversed several of its determinations respecting confidentiality in favour of disclosure. AGT emphasized that, of the four interrogatory responses addressing the issue of shareholder entitlement that were filed in confidence, Calgary did not request disclosure of two, while the Commission ordered partial disclosure with respect to the other two. In addition, AGT rejected Calgary's assertion that the failure to put the confidentiality claim on the record can be viewed as an error of law.
In reply, Calgary objected to AGT's reference to the "off the record" discussions. Calgary stated that, while it was apprised of AGT's position in the "off the record" meeting, it did not concur with the view that the information could not be placed on the public record. Further, Calgary submitted that it did not know whether the Commission relied on confidential information in its determination, as in Calgary's view, there was no indication in either of the two Decisions as to whether the Commission did rely on such information.
The Commission notes that it is entitled to rely on confidential information in arriving at its decisions, subject to the requirement that it consider requests for disclosure. Calgary's concern, that it was denied natural justice (i.e., prevented from effectively participating in the public proceeding) due to the use of confidential information, must be weighed against the Commission's statutory authority (pursuant to the Railway Act, at the time of the proceeding) to maintain the confidentiality of information.
The Rules state that, when a claim for confidentiality is challenged, the document shall be placed on the public record where the Commission is of the opinion that no specific direct harm would likely result from disclosure, or where such specific direct harm is shown, but is not sufficient to outweigh the public interest in disclosing the document. Where the Commission is of the opinion that specific direct harm would likely result from public disclosure, the Commission may (among other things) order that the confidential document not be placed on the public record.
In dealing with AGT's requests for confidentiality in the proceeding leading to Decision 93-9, the Commission concluded that to place the information that is the subject of Calgary's application on the public record would result in specific direct harm to AGT that would outweigh the public interest in disclosure. The Commission notes in addition, that almost all of the information with respect to shareholder entitlement was placed on the public record.
As to Calgary's argument that it was not permitted to know, on the record, the reasons for AGT's, claim of confidentiality, the Commission notes that this case was exceptional, in that to have placed the reasons for the claim on the record would, in itself, have caused AGT specific direct harm that would have outweighed the public interest in disclosure.
In light of the above, the Commission finds that it did not err or deny Calgary natural justice in acceding to AGT's request for confidentiality or in not placing AGT's reasons for that request on the public record.
B. Failure to Provide Reasons
Calgary recognized that the Act imposes no obligation on the Commission to provide reasons. However, Calgary stated that the desirability of providing reasons has been repeatedly stated by the Courts, in legal texts and in expressions of regulatory policy. Further, Calgary argued that the Rules, including the objectives of the Rules, require the provision of full and complete reasons in order to enhance the ability of interveners and the public to participate in an informed way in Commission proceedings.
Calgary stated that the Commission may have considered that it was providing some explanation of its reasoning in Decision 93-9 in reciting the arguments of AGT with respect to a premium of $183 million and then accepting $183 million as not unreasonable. However, Calgary noted that, at a later point, the Commission specifically denied that it had adopted the premium approach with respect to determining the amount of the shareholder entitlement (at page 33 of Decision 93-18).
AGT was of the view that many of the authorities cited by Calgary supporting full reasons for a decision were inapplicable to the Commission. In any event, AGT submitted that the reasons provided in Decision 93-9 did, in fact, meet the objectives cited by those authorities. AGT stated that, if Decision 93-9 was not enough, the proceeding leading to Decision 93-18 and Decision 93-18 itself clarified that the payment of a premium was not a decisive factor in determining the quantum of the shareholder entitlement. Further, AGT argued that, contrary to Calgary's submissions, a tribunal is not required to make an explicit written finding on each constituent element, no matter how subordinate, leading up to a final conclusion, let alone state whether particular evidence was of assistance in its decision-making process.
In the Commission's view, this particular ground cannot be characterized as one of fact, but is strictly a question of law. The Commission notes that there is no express statutory obligation for the Commission to give reasons for its decisions. Further, the Courts have stated that, even where a tribunal has a duty to give reasons, it is not necessary that it address each specific argument raised by the parties or that it state what evidence it considered helpful to its deliberations.
In any event, at pages 23 and 24 of Decision 93-9, the Commission set out the rationale for the shareholder entitlement and for the amount permitted. In addition, in Decision 93-18, the Commission pointed out that the shareholder entitlement was not based on any payment of a premium.
In light of the above, the Commission finds that it did not err in law with regard to the reasons provided in Decision
93-9.
C. Failure to Consider Certain Financial Principles
Calgary argued that, in comparing the $183 million of shareholder entitlement to the $2.5 billion of ATDs, the Commission failed to consider the following:
(1) the ATDs are tax deductions, not tax savings, while the shareholder entitlement is received by the shareholder after or free of tax;
(2) the ATDs are subject to the risk of adjustment by reassessment, so that the $2.5 billion is the maximum amount possible, while the shareholder entitlement is not subject to any risk of adjustment if the ATDs do not equal the maximum amount; and
(3) the ultimate tax savings from the ATDs will be realized by subscribers over many years, while the shareholder entitlement was determined at the time that Decision 93-9 was issued and the shareholder is to be compensated through interest for any delays in realizing the benefits of the entitlement.
In Calgary's view, the Commission did not recognize the time value of money and the probability of recovery of the ATDs when deciding that a shareholder entitlement of $183 million was not unreasonable compared to $2.5 billion of ATDs. Calgary noted that the ATDs are tax deductions, not tax savings, and that $2.5 billion would be the maximum amount of the ATDs, if there is no reassessment. Calgary stated that the benefit of the ATDs would be realized by customers only over a period of many years and would be subject to adjustment by reassessment. AGT, however, would recognize the benefit of the shareholder entitlement almost immediately, since (pursuant to Decision 93-18) it would receive a return on the shareholder entitlement at the long-term debt rate and thus be compensated for the delay in receiving the full amount of the entitlement. Calgary submitted that the lack of recognition of a basic financial principle, the time value of money, and the difference between tax deductions and an entitlement received tax free indicate that there is substantial doubt as to the correctness of Decision
93-9.
Calgary also stated that the evidence in the proceeding leading to Decision 93-9 indicated that the ATDs have a maximum net present value (NPV) of $532 million to subscribers (assuming maximum utilization and no reassessments) and that the shareholder entitlement has an NPV of $183 million. Since the Commission's decision did not make the shareholder entitlement subject to adjustment if there were reassessments, the subscribers bear the full risk as to whether the $532 million NPV of the tax savings will materialize.
Calgary submitted that the Commission erred when it apparently did not consider that the value to the subscribers of the ATDs in equivalent terms to the shareholder entitlement was not the $2.5 billion, but rather the ATDs adjusted for probability of reassessments, tax savings and the time value of money. Calgary further submitted that the evidence as to the probability of reassessment, and the amount of the ATDs adjusted for potential reassessment, indicate that the shareholder entitlement was more than 60% of the NPV of the tax savings from the ATDs. On that basis, Calgary considered the amount of the shareholder entitlement to be unreasonable. In Calgary's view, subscribers are being asked to pay the shareholder a present value of $183 million for the opportunity, assuming no reassessment or adjustments, to receive a maximum NPV of $532 million (not $2.5 billion) of tax savings from the ATDs.
AGT considered Calgary's argument that the Commission failed to consider financial principles to fall under the criterion of a failure to consider a basic principle raised in the original proceeding. AGT submitted that all of the financial principles raised in Calgary's application were discussed at great length and were previously considered by the Commission. AGT added that the Commission was fully aware that the ATDs needed to be multiplied by the tax rate in order to be compared to the shareholder entitlement amount of $183 million.
AGT noted that its analysis in AGT Exhibit 6 filed in the proceeding leading to Decision 93-9 (in response to the Commission's request to show a comparison between the ATDs and the shareholder entitlement) discloses that the NPV of the shareholder entitlement would be $130 million, compared to a total NPV of the ATDs of $603.4 million (i.e., 21.5%). Given that the calculation in AGT Exhibit 6 is based on a shareholder entitlement of $207.3 million (as opposed to $183 million), AGT submitted that subscribers will benefit even more under Decision 93-9 than was demonstrated to be the case in AGT Exhibit 6.
Further, AGT submitted that Calgary was wrong in stating that the NPV of the $2.5 billion of ATDs is only $532 million. AGT stated that the evidence in the original proceeding was clear that this $532 million amount excludes all of the ATDs used to reduce subscriber rates before 1993. AGT submitted that Calgary's omission of the ATDs used before 1993 is very misleading. Further, the "financial principles" identified by Calgary are a repetition of argument and issues previously placed before the Commission.
In reply, Calgary stated that it was neither re-litigating nor re-arguing, but rather attempting to point out those facts or positions that were presented to the Commission but do not appear to have been recognized in Decision 93-9, since, in Calgary's view, recognition of those items would have resulted in a discussion in Decision 93-9 and a different outcome.
Calgary stated that it was unclear whether the amount of $532 million included or excluded amounts claimed prior to 1993. Calgary stated that AGT admitted that reassessment by Revenue Canada was probable, and that, given this very real contingency, the NPV of the ATDs was probably lower than $532 million.
Calgary stated that, prior to Decision 93-9, the full benefits and risks associated with the ATDs accrued to the subscribers. Calgary submitted that, subsequent to Decision 93-9, a portion of the benefit enured to the shareholder of AGT, but all of the risk remained with the subscribers.
The Commission notes that the fact that the ATDs are tax deductions (not tax savings), while the shareholder entitlement is free of or after tax, was clearly evident from the record of the proceeding leading to Decision 93-9. Accordingly, it was taken into account by the Commission when it made its determinations in that proceeding.
With regard to Calgary's concern that the ultimate tax savings from the ATDs will be realized by subscribers over many years, while the shareholder is to be compensated through interest for any delays in realizing the benefits of the entitlement, the Commission notes that the question of the recovery of the shareholder entitlement was dealt with in Decision 93-18. In that Decision, the Commission stated that, while the amount of the shareholder entitlement relates to the total amount of the ATDs, it is not tied to any particular year. The Commission regarded the entitlement, which did not exist until the date Decision 93-9 was issued, as an obligation or liability that must be recovered by the shareholder from subscribers through rates. As such, it is not necessary that the entitlement be recovered over the same period for which tax savings will be realized.
In Decision 93-18, the Commission established a schedule for the recovery of the entitlement that would not result in serious rate fluctuations over the amortization period and that would ensure that the entitlement is recovered over a reasonable period of time. Since the liability could not be recovered from subscribers in one year, the Commission considered in Decision 93-18 that the shareholder should receive a return on the outstanding balance of the unpaid entitlement commensurate with the long-term debt rate.
In light of the above, the Commission rejects Calgary's arguments with respect to points (1) and (3) noted above. However, the Commission considers that there is merit to Calgary's second point, i.e., that the ATDs ($2.5 billion) are subject to risk of reassessment, while the shareholder entitlement is not.
In Decision 93-9, given the magnitude of the ATDs (estimated at $2.5 billion), the Commission accepted $183 million as the maximum amount of the shareholder entitlement, subject to the resolution of certain legal issues. In Decision 93-18, after dealing with the legal issues, the Commission made the determination that the "final amount for the shareholder entitlement is $183 million". In neither Decision did the Commission explicitly link the amount of the shareholder entitlement to the amount of ATDs that would ultimately be allowed by Revenue Canada.
However, when the Commission established the shareholder entitlement in Decision 93-9, and when it finalized the amount in Decision 93-18, the Commission intended that subscribers would retain the significantly greater portion of the benefits associated with the ATDs. As noted in the proceeding leading to Decision 93-9, the amount of the ATDs may not be finalized for several years because of the possibility of reassessments by Revenue Canada. If the amount of ATDs ultimately allowed by Revenue Canada is less than $2.5 billion, and the Commission's determination as to the shareholder entitlement remains unchanged, the shareholder would receive a greater portion of the ATDs than originally contemplated in Decision 93-9.
The Commission also notes that, in Decision 93-9, it stated that it intended to adjust AGT's rates in future years, as necessary, to reflect any difference in the amount of ATDs used for regulatory (book) purposes and the amount permitted by Revenue Canada. In other words, if the amount of ATDs permitted by Revenue Canada is less than $2.5 billion, the Commission will require subscribers to pay for the resultant tax expense through higher rates. Since the amount of ATDs on which the shareholder entitlement was based would be lower than $2.5 billion, it would be asymmetrical not to lower the amount of the shareholder entitlement.
In light of the above, the Commission considers that, in determining in Decision 93-9 that a shareholder entitlement in the amount of $183 million would not be unreasonable, it should have related the amount of the entitlement to the final amount of the ATDs permitted by Revenue Canada. With regard to Decision 93-18, the Commission should again have made the final amount of the shareholder entitlement subject to any future reassessment of the ATDs by Revenue Canada.
D. Departure from the Basic Concepts of Utility Regulation
Calgary submitted that the provision of the $183 million shareholder entitlement provides the shareholder of AGT, i.e., Telus, with compensation on AGT's common equity in excess of the ranges found reasonable by the Commission in AGT Limited - Revenue Requirement for 1992, Telecom Decision CRTC 92-9, 26 May 1992 (Decision 92-9), and in Decision 93-18, thus creating a "windfall" for the shareholder. Calgary submitted that the portion of the shareholder entitlement to be recognized in AGT's 1994 earnings will raise the return on common equity to approximately 2% above the range found just and reasonable by the Commission in Decision 93-18.
Calgary submitted that, since shareholders and management are expected to make sound business decisions, the Commission has not generally provided shareholders with additional compensation as an incentive for sound management decisions. In Calgary's view, obtaining the ATDs was a sound business decision that should have been taken in any event. Calgary argued, that providing Telus with the shareholder entitlement for its role in the privatization process is similar to an incentive regulatory regime, which the Commission had indicated in Decision 92-9 would require careful study prior to adoption, as well as evidence that the current regulatory mechanism was no longer satisfactory or appropriate. Calgary noted that there was no evidence or discussion of matters relating to alternative or incentive regulatory regimes in the proceeding leading to Decision 93-9.
AGT stated that the Commission's decision in respect of the shareholder entitlement did not violate basic concepts of utility regulation. AGT submitted that unique circumstances, such as those noted at pages 23 and 24 of Decision 93-9, sometimes override what Calgary described as "concepts of utility regulation". AGT noted that the Commission has recognized in other decisions that it must have regard for unique circumstances (for example, Telecom Decision CRTC 90-15, 12 July 1990, and Telecom Decision
CRTC 91-21, 19 December 1991); thus, Decision 93-9 is entirely consistent with the Commission's own decisions.
Further, AGT submitted that Calgary is seeking to re-argue the windfall argument that it raised in the proceeding leading to Decision 93-9. AGT pointed out that the Commission has previously stated that a review will not be granted, even under the criterion of substantial doubt, where an applicant does not make any new arguments or produce new information that was not considered in the original proceeding. AGT argued the Commission is entitled to deny an application to review and vary on that basis alone.
In arguing that the Commission departed from basic concepts of utility regulation, Calgary is, in essence, arguing that the Commission failed to apply the correct principle. Thus, the argument falls under the criterion of an error of law.
As pointed out by Calgary, the $183 million shareholder entitlement provides Telus with compensation on AGT's common equity in excess of the range found reasonable by the Commission. However, the Commission is entitled to recognize unique circumstances in its treatment of an issue such as the ATDs and is not prevented, in law, from recognizing the role played by shareholders in those unique circumstances. It should also be borne in mind that, while Telus is obtaining a significant benefit in respect of the ATDs, so too are AGT's customers.
The Commission also notes that Calgary's application in this regard does not raise any new arguments or new information not considered in the proceeding which led up to Decision 93-9.
In light of the above, the Commission finds that it did not fail to apply the correct principles in Decisions 93-9 and 93-18 and, accordingly, that it did not err in law in this respect.
E. Failure to Consider Evidence
Calgary submitted that the Commission ignored or failed to take into account the following evidence in the proceeding leading to Decision 93-9:
(1) AGT expressed the view that, in a pure regulated utility, gains arising from the ATDs would be credited to subscribers;
(2) AGT acknowledged that the reorganization and privatization was not undertaken for the benefit of shareholders, but for the public interest, including AGT subscribers;
(3) at the time of the privatization of the AGT Commission, ministers of the Government of Alberta anticipated that AGT would not be taxable and that the privatization transaction would not increase rates over what they would otherwise have been; and
(4) AGT did not determine that it should seek compensation for the ATDs until 23 December 1991, over 14 months after privatization.
Calgary argued that, in light of this evidence, the Commission should not have established the shareholder entitlement, with its attendant effect on rates.
AGT argued that this ground does not fall within any of the Commission's traditional criteria, since Calgary is simply repeating evidence and argument considered in the original proceeding. AGT was of the view that, because Calgary is advancing no new arguments, it is effectively requesting that the Commission rehear, by way of a limited paper process, a matter that was completely dealt with by way of a full oral hearing.
The Commission disagrees with AGT that Calgary's argument, if correct, does not fit within the Commission's criteria to review and vary. In the Commission's view, Calgary's argument falls under the criterion of an error in fact or law, and the relevant issue is whether there was evidence on the record of the proceeding to provide a basis for the Commission's findings.
The Commission notes that Calgary has raised no new argument or information of which the Commission was not aware when it made its decision. The evidence noted by Calgary was before the Commission when it arrived at its determinations in Decision 93-9, and the Commission did consider it. It might be argued that the evidence in question would, by itself, weigh against the Commission's conclusions. However, there was other evidence on the record, which the Commission also took into account, that provided a basis for the Commission's conclusions.
In light of the above, the Commission finds that there was evidence before it that supported its conclusion regarding the shareholder entitlement and that it did not err in fact or law as submitted by Calgary.
III DISPOSITION OF THE APPLICATION
Based on the above, the Commission finds that it did not err in law or in fact in Decisions 93-9 and 93-18, nor did it fail to consider principles (1) and (3) noted in Part II, Section C, above, which were raised during the proceedings. However, the Commission finds that it should have taken into account that the ATDs are subject to a risk of reassessment, and explicitly linked the amount of the shareholder entitlement to the amount of the ATDs ultimately allowed by Revenue Canada. Accordingly, the Commission varies Decisions 93-9 and 93-18 to provide that, should the amount of ATDs permitted by Revenue Canada be lower than $2.5 billion upon reassessment, the amount of shareholder entitlement should be adjusted proportionately.
AGT noted that grounds (1), (2) and (4) in Calgary's application to review and vary were the same grounds identified by Calgary as errors of law or jurisdiction, or both, in a Notice of Motion for Leave to Appeal Decision 93-9 to the Federal Court of Appeal. AGT argued that, because the Federal Court of Appeal has already denied Calgary leave to appeal on these same grounds, the Commission must deny Calgary's application on those grounds. AGT also argued that, even if the Federal Court of Appeal had not yet disposed of Calgary's Notice of Motion, the existence of a right of appeal to the Federal Court of Appeal on any question of law or jurisdiction precludes the Commission from exercising concurrent jurisdiction over legal matters in a review and variance application.
In light of the fact that it has not accepted the grounds in question as a basis for reviewing and varying Decisions 93-9 and 93-18, the Commission does not consider it necessary to rule with respect to AGT's arguments in this regard.
Allan J. Darling
Secretary General
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