ARCHIVED -  Telecom Decision CRTC 96-8

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Telecom Decision

Ottawa, 18 September 1996
Telecom Decision CRTC 96-8
In Regulation of Broadcasting Distribution Undertakings that Provide Non-Programming Services, Telecom Decision CRTC 96-1, 30 January 1996 (Decision 96-1), the Commission dealt with the regulation of broadcasting distribution undertakings that are also Canadian carriers within the meaning of the Telecommunications Act (the Act). For convenience, such carriers were referred to as "broadcast carriers". In that Decision, the Commission grouped the non-programming services offered by these carriers into "full channel TV services" and "other non-programming services".
The Commission indicated in Decision 96-1 that it will begin a proceeding through a separate public notice to consider issues relating to, among other things, tariffing and forbearance with respect to the provision of "other non-programming services" by broadcast carriers (the "follow-up" proceeding). The Commission further noted that, where a broadcast carrier wishes to introduce a non-programming service other than a full channel TV service before the Commission releases its decision in that follow-up proceeding, the carrier must file a proposed tariff for that service and demonstrate that the carrier's analog capacity is sufficient to deal appropriately with issues of third party access for the provision of like services.
On 21 February 1996, QuébecTel Communications (QuébecTel) filed an application pursuant to Part VII of the CRTC Telecommunications Rules of Procedure in which it contended that Cogéco Câble Canada Inc. (Cogéco) had begun offering a high speed Internet access service using the facilities of its Rimouski cable system on 14 February 1996. QuébecTel further indicated that Cogéco offers this service to residential and business customers for a monthly fee, and offers two additional cable outlets to those of its cable subscribers subscribing to its Internet access service; an Internet subscriber who already has extra cable outlets would no longer be billed for them.
QuébecTel requested that, further to Decision 96-1, the Commission order Cogéco to file a tariff for this service offering, and that the Commission investigate both its allegation that Cogéco is advertising its Internet access service on its Rimouski community cable channel, and Cogéco's offer of free cable outlets. QuébecTel further requested that the Commission ensure that Cogéco's Internet service offering is not cross-subsidized by its cable subscribers.
Cogéco opposed QuébecTel's application. It submitted that the Internet access service offered on its Rimouski system represents the extension of a service already introduced by Cogéco in certain of its other cable systems before the release of Decision 96-1. As such, in Cogéco's view, it is not a service for which that Decision requires a tariff to be filed. Cogéco noted that it is Cogéco, not each of its individual systems, which constitutes the Canadian carrier. Cogéco submitted that the company's telecommunications activities cannot be regulated on a system by system basis.
Cogéco further argued that requiring tariffing of its Internet access service at this time would be contrary not only to the letter, but to the spirit of Decision 96-1, as well as to certain Canadian telecommunications policy objectives. Cogéco considered that forbearance from regulation would be appropriate with respect to this service offering.
With respect to QuébecTel's allegation that Cogéco is advertising its Internet access service on its community cable channel and QuébecTel's complaint regarding the provision of free cable outlets, Cogéco stated that these practices are in conformity with the Broadcasting Act. In Cogéco's submission, the Broadcasting Act is the relevant legislation with respect to these issues, and QuébecTel should have made its submissions under that Act. Cogéco considered QuébecTel's concerns respecting the potential for cross-subsidization from Cogéco's cable subscribers to be ill-founded.
Notwithstanding Cogéco's position that QuébecTel's submissions should be denied, Cogéco stated that analog capacity is available on those systems where Internet access service is offered. Further, should the Commission determine that a tariff is required, Cogéco applied under subsection 24(4) of the Act for ratification if its prior offering of the service without a tariff.
The Commission agrees with Cogéco that it is the Canadian carrier for the purpose of regulation under the Act. Further, with respect to Cogéco's position that regulation under the Act should not be on a system by system basis, in the Commission's view a multiple system operator such as Cogéco may file a single tariff which contains the rates and other terms on which a service is offered on more than one of its systems, where the terms of the offering make it appropriate to do so.
While material submitted by Cogéco in this proceeding indicates that the terms, including the rates, on which its Internet access service is offered may vary between systems, the Commission believes that such differences can be accommodated within the structure of a single tariff that reflects the offering of the service on multiple systems.
With respect to Cogéco's position that tariffing its Internet access service at this time would be premature because no determination has been made with respect to the appropriateness of forbearance, the Commission notes that Decision 96-1 clearly contemplates that tariffs may be required for "other non-programming services" prior to the release of the Commission's decision in the follow-up proceeding.
In the Commission's view, regardless of whether Cogéco was offering its Internet access service on other systems before 30 January 1996, the introduction of its Internet access service offering to customers of its Rimouski system represents the introduction of a non-programming service other than a full channel TV service, for which tariff approval is required.
Cogéco answered QuébecTel's allegation that Cogéco is advertising its Internet access service on the community channel of its Rimouski system and QuébecTel's comments relating to Cogéco's offer of free cable outlets by stating that these matters should be dealt with under the Broadcasting Act. The Commission intends to include these issues in the public notice initiating the follow-up proceeding with respect to the appropriate regulatory treatment of "other non-programming services" under the Act. The Commission also intends to seek comment on the question of cross-subsidization and a number of other issues, including access, in that proceeding.
The Commission therefore directs Cogéco to file for approval, within 15 days, proposed tariff pages with respect to the provision of Internet access service on its Rimouski system and any other system on which such services have been introduced since 30 January 1996, the date of Decision 96-1. Pending the conclusion of the follow-up proceeding, before Cogéco extends this service offering using the facilities of its other systems, it will be expected to file proposed tariff pages or amendments to its approved tariff pages, as appropriate, and to obtain approval with respect to the extension of this service offering.
With respect to Cogéco having introduced Internet access service using the facilities of its Rimouski system or other systems after 30 January 1996, the Commission is of the preliminary view that it would be appropriate, at the time it considers Cogéco's proposed tariff, to grant Cogéco's application, made under subsection 24(4) of the Act, to ratify the prior provision of this service without a tariff.

Allan J. Darling
Secretary General
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