ARCHIVED -  Telecom Order CRTC 96-1484

Telecom Order

Ottawa, 18 December 1996

Telecom Order CRTC 96-1484

IN THE MATTER OF the implementation of Access to Telephone Company Support Structures, Telecom Decision CRTC 95-13, 22 June 1995 (Decision 95-13).

Reference: 95-1204

INTRODUCTION

WHEREAS, in Decision 95-13, the Commission established the basic principles regarding access to the support structures of TELUS Communications Inc. (TCI) (formerly AGT Limited), BC TEL, Bell Canada (Bell), The Island Telephone Company Limited (Island Tel), Maritime Tel & Tel Limited (MT&T), The New Brunswick Telephone Company, Limited (NBTel), NewTel Communications Inc. (NewTel) formerly Newfoundland Telephone Company Limited and Northwestel Inc. (Northwestel), collectively the telephone companies, and established uniform rates for the use of poles, strand and conduit effective 1 August 1995;

WHEREAS the telephone companies were directed to issue tariff pages by 14 July 1995, implementing the determinations made in Decision 95-13;

WHEREAS, in addition, BC TEL was directed to file proposed tariffs for its Type B, C, and D conduit facilities by 24 July 1995;

WHEREAS BC TEL filed proposed tariff revisions under Tariff Notice 3336 dated 24 July 1995, that would effectively eliminate, for rating purposes, the distinction made by the company with respect to its Type B, C and D conduit, and would adopt the rate established for conduit in Decision 95-13;

WHEREAS, in addition, the Commission directed TELUS Communications (Edmonton) Inc. (TCEI) (formerly Edmonton Communications Inc.) to provide, by 24 July 1995, any reasons why its support structure rates should not be the same as those established in Decision 95-13 for the other telephone companies;

WHEREAS, similarly, the Commission directed MTS NetCom Inc. (MTS), Québec-Téléphone and Télébec ltée (Télébec) to provide, by 24 July 1995, any reasons why the rates, terms and conditions established in Decision 95-13 should not apply to their support structure services;

WHEREAS the Commission directed the telephone companies, where applicable, to issue revised tariff pages rather than file proposed tariff pages with the Commission for approval;

WHEREAS TCI, unlike the other telephone companies, did not have tariffs setting out rates, terms and conditions for support structure services;

WHEREAS TCI filed proposed tariff pages under Tariff Notices 639, 660 and 660A, and a Support Structure Licence Agreement for Commission approval;

WHEREAS, effective 4 August 1995, the Commission granted interim approval to those proposed tariffs in Telecom Order CRTC 95-882, and granted interim approval to the proposed Agreement in Telecom Order CRTC 95-936;

WHEREAS interested parties registered in the proceeding leading to Decision 95-13 were invited to comment on the issued tariff pages, and on the proposed tariffs and Agreements, filed by the telephone companies;

MONTHLY RATES FOR POLE, STRAND AND CONDUIT

WHEREAS Decision 95-13 set out the following monthly rates for structures:

Pole: $0.80;

Strand
(per 30 metres or equivalent): $0.20;

Conduit
(per 30 metres or equivalent): $2.25;

WHEREAS the Commission notes that Bell's issued tariff pages apply the pole rate in Decision 95-13 on a per pole basis, such that a customer would be able to attach more than one strand at the rate of $0.80;

WHEREAS other Stentor members issued tariff pages such that the $0.80 rate would apply per strand attached to the pole;

WHEREAS Bell's interpretation of Decision 95-13 is correct with respect to the application of the pole rate;

WHEREAS the Commission notes that this interpretation is consistent with the approach that the Commission has historically adopted for pole rental;

WHEREAS cable television undertakings and their respective associations argued that the conduit rate should apply per conduit, rather than on the basis of per cable in the conduit;

WHEREAS the approach historically adopted by the Commission, which was not modified by Decision 95-13, has been that the rate applies on a per cable basis;

WHEREAS BC TEL noted that under the rating structure that prevailed prior to Decision 95-13, the company had not been required to keep records of the number of poles used by each cable television company;

WHEREAS BC TEL proposed to determine a pole count by dividing each cable television company's route meterage by an average span length of 36.6 metres and submitted that the costs of undertaking an actual pole count across its territory would be prohibitive;

WHEREAS the Canadian Cable Television Association (CCTA) submitted in reply that BC TEL's proposal would be satisfactory, but that BC TEL should be required to conduct an actual pole count, with an accounting, within 1 year of the release of any follow-up decision;

WHEREAS the Commission is of the view that BC TEL's proposed method for approximating a pole count is acceptable under the circumstances;

WHEREAS the Commission is also of the view that notwithstanding the above approximation, it is open to either BC TEL or the customer to correct such an approximation on a going-forward basis;

TYPE B, C AND D DUCTS

WHEREAS pursuant to the Commission's direction in Decision 95-13, BC TEL filed proposed tariff revisions for its Type B, C and D conduit facilities;

WHEREAS BC TEL submitted that, based on the framework established in Decision 95-13, costs are no longer a material consideration and that a uniform rate of $2.25 per 30 metres of duct should apply to all four of its current categories of duct facilities;

WHEREAS CCTA objected to BC TEL's statement that costs are no longer a material consideration and, in particular, submitted that BC TEL should not be permitted to charge the same amount for conduit which it gets free from a developer, as it does for conduit that it pays for and installs itself;

WHEREAS CCTA noted that Type A conduit is supplied and installed at BC TEL's expense, Type B conduit is supplied by BC TEL but installed at the expense of the developer, and that Type C and D conduit are supplied and installed at the expense of the developer;

WHEREAS CCTA submitted that an appropriate rate for Type B, C and D conduit would be $0.30 per month per 30 metres, based on its estimation of a causal cost of $0.23 plus 25% representing a reasonable contribution;

WHEREAS in reply, BC TEL reiterated its view that, under the rating framework established in Decision 95-13, causal costs are effectively nil and therefore not a consideration;

WHEREAS, in the Commission's view, the uniform rate proposed by BC TEL may not be appropriate;

WHEREAS, accordingly, the Commission defers the disposition of BC TEL Tariff Notice 3336;

WHEREAS the Commission considers that it would be appropriate to investigate the current demand for Type B, C and D conduit and the specific circumstances under which each type is provisioned;

NON-RECURRING CHARGES

WHEREAS a number of cable television undertakings submitted that the telephone companies had included in their tariffs a number of non-recurring administrative charges, such as application, processing fees and other charges that were not contemplated in the monthly rates established in Decision 95-13;

WHEREAS TCI and a number of other telephone companies noted that Decision 95-13 set out basic principles with respect to access, but did not address all operating issues;

WHEREAS a number of telephone companies also stated that application and processing fees have always been charged, and that such charges have been accepted by customers in the past;

WHEREAS the Commission considers that the monthly rates for access to telephone company support structures established in Decision 95-13 are not inclusive of any related non-recurring administrative, application or processing fees;

WHEREAS the Commission notes that the reasonableness of the application of these administrative or processing fees and other non-recurring charges are subject to dispute resolution by the Commission;

RIGHTS OF ACCESS TO AND USE OF SUPPORT STRUCTURES

WHEREAS in Decision 95-13, the Commission enunciated a general right of access to the support structures of the telephone companies where spare capacity is available and encouraged parties, including cable television undertakings, to minimize the number of support structures through joint use and joint planning;

WHEREAS the Commission also expressed its views with respect to the placement of facilities on support structures, and determined that there should be no restrictions on the type of plant placed, unless those restrictions relate to safety and technical requirements;

WHEREAS the Commission also considered that there should be no restrictions on the type of services provided by the companies using support structures, as long as those services are provided in accordance with applicable legislation, regulations and Commission decisions;

WHEREAS CCTA and a number of its members submitted that access to telephone company support structures should be accommodated through a lease rather than through a license arrangement;

WHEREAS CCTA and a number of other interested parties also objected to any prohibition on the right of any cable television undertaking or other party from either sub-letting or sub-licensing their access to support structures;

WHEREAS TCI and others submitted that there is no requirement in law or otherwise that the relationship be characterized as one of lessor/lessee, and that to allow either sub-letting or sub-licensing would permit third parties access to support structures that other parties have been unable to obtain directly from the telephone company due to their unavailability;

WHEREAS the Commission considers a right in favour of support structure users to sub-let, sub-license or otherwise transfer access to support structures to be contrary to the finding in Decision 95-13 that cable television undertakings and telecommunications carriers should enjoy a general right of access;

WHEREAS the Commission considers that the telephone companies may characterize the legal relationship established with customers, in their tariffs or support structure agreements and may define it as lease, license or otherwise;

WHEREAS CCTA noted provisions in the tariff pages issued by a number of telephone companies indicating that, in all circumstances, the telephone company has priority access to support structures in order to meet its current and anticipated future service requirements;

WHEREAS CCTA submitted that none of the issued tariff pages define priority access and that the absence of any definition will inevitably lead to unnecessary disputes;

WHEREAS Bell, Island Tel, MT&T, NBTel, New Tel and Northwestel, cited page 18 of Decision 95-13 where the Commission described priority access in terms identical to those used in the telephone companies' tariffs;

WHEREAS the Commission recognizes that from time to time it may be required to settle disputes relating to specific future service requirement forecasts;

WHEREAS the Commission is not persuaded that a definition of priority access would lessen the likelihood of such disputes;

WHEREAS Access Cable Television Limited (Access Cable), the Cable Television Association of Nova Scotia (CTANS), CCTA and Shaw Communications Inc. (Shaw) submitted that a number of telephone companies, including BC TEL, Island Tel, and MT&T, included in their issued tariff pages additional restrictions on access to telephone company support structure not contemplated by the Commission in Decision 95-13;

WHEREAS Access Cable, CTANS and Shaw noted that certain tariff provisions restricted access where the installation of facilities would interfere with the right of any joint user or other lessee;

WHEREAS CTANS submitted that such restriction should be limited to undue interference with the rights of any joint user;

WHEREAS the telephone companies submitted that the inclusion of this restriction is required to emphasize and lend authority to their obligations to ensure that the rights of any joint user are not jeopardized by new installations;

WHEREAS the Commission considers that tariff provisions should stipulate that access to support structures may not be restricted, except where installation of facilities will unduly interfere with the rights of others;

WHEREAS Access Cable and CTANS also submitted that Item 2010 1(d) setting out MT&T's right to set and enforce standards based on safety and technical requirements should be circumscribed by requiring that such standards be reasonable and by adding that recourse to the Commission is available in the case of disputes over the reasonableness of safety or technical standards;

WHEREAS Shaw submitted that the tariff pages should specifically indicate that the telephone companies are required to abide equally with any applicable safety or technical requirements;

WHEREAS the Commission notes that it is implicit that all joint users must abide by reasonable safety and technical standards;

WHEREAS Access Cable and CTANS also submitted that written applications for use of support structures, including subscriber drops, as required by MT&T's proposed Item 2010.2, should be modified so as not to include subscriber drops;

WHEREAS Access Cable and CTANS stated that written applications for use of service poles that hold subscriber drops have not been customary in the past and would create an enormous administrative burden on cable operators;

WHEREAS the Commission is of the view that when cable television companies, or other users, as the case may be, have an existing presence on a support structure, they should only be required to notify the telephone company that they intend to place one or more additional subscriber drops;

WHEREAS CCTA and a number of other interested parties submitted that the tariffs issued or proposed by certain telephone companies had expanded the circumstances under which cable companies or other users of support structures can be prohibited from placing facilities on support structures;

WHEREAS TCI objected to the notion that only technical and safety standards govern the placement of facilities on support structures and submitted that the structure owner or the one granting access to the structure, should control where facilities are placed on the structure;

WHEREAS, in the Commission's view, TCI's position with respect to restrictions affecting the placement of facilities on support structures owned or controlled by it (i.e., that TCI should have the right to control placement of facilities on its support structures for reasons other than safety or technical considerations), is contrary to the Commission's determination in Decision 95-13 where it considered that there should be no restrictions on the type or location of plant placed, unless those restrictions relate to safety and technical requirements;

WHEREAS CCTA also submitted that a number of the telephone companies' tariffs limit the size of cable that may be installed, in conduit or on the telephone companies' strand, to 30.5 mm;

WHEREAS Bell stated that the restriction related to cable size was part of the previous tariffs and is based upon a technical limitation related to the size of a conduit and the number of cables of that size that can be placed inside one conduit, as well as considerations related to the load-bearing capacity, maintenance, technical and operational requirements related to the use of telephone company strand;

WHEREAS Bell also stated that the coaxial and fibre optic cable sizes currently utilized by the cable industry are of equal or lesser diameter;

WHEREAS the Commission considers that the reference in a number of telephone company tariffs limiting the cable size permitted to be installed either on telephone company strand or in telephone company conduit is in accordance with the Commission's determinations regarding the placement of facilities in Decision 95-13, reflects the previous tariffs of those telephone companies and is a reasonable technical standard;

WHEREAS CCTA and other interested parties also submitted that the tariffs issued by the telephone companies vary considerably as to the right of a lessee/licensee to install and maintain their own facilities using their own labour force or contractor;

WHEREAS the Commission considers it unacceptable to require prior approval of the labour force to be employed in maintaining or installing facilities placed by joint-users on telephone company support structures;

WHEREAS the Commission is of the view that tariff provisions requiring customers to provide telephone companies prior notification of the labour force to be employed, strikes a more appropriate balance between the interests of support structure users and the telephone companies;

TCEI

WHEREAS, in Decision 95-13, the Commission directed that the terms and conditions governing access to support structures set out in that Decision should apply to TCEI, and TCEI was directed to file any reasons why its support structures should not be provided at the rates established in Decision 95-13;

WHEREAS TCEI filed proposed tariff pages under Tariff Notice 15 implementing the rates, terms and conditions set out in Decision 95-13;

WHEREAS TCEI submitted that it was prepared to adopt the rates for access to support structures established in Decision 95-13;

WHEREAS TCEI stated, however, that it does not provide company-owned strand for use by other parties, and that cable companies and TCI place their own strand at their own expense when they use TCEI poles;

WHEREAS TCEI also noted that two types of support structure presently used by cable companies (pedestals and lamp standard bases) were not addressed in Decision 95-13;

WHEREAS TCEI proposed separate rates for these structures in its tariffs;

WHEREAS, in reply, Shaw and Videotron Communications Ltd. (Videotron) submitted that TCEI should include a strand rate in its tariff in order to comply with Decision 95-13;

WHEREAS, with respect to the rating for lamp standard bases and pedestals, Shaw submitted that TCEI should be required to file full cost justification for any proposed rates for these facilities, and Videotron submitted that, as these facilities have been either paid for by developers or provided free by Videotron since 1984, there should be no recurring monthly or annual charge associated with accessing them;

WHEREAS the Commission granted interim approval to TCEI proposed tariff pages in Telecom Order CRTC 95-1176, dated 31 October 1995;

WHEREAS, in the Commission's view, all of the rates established in Decision 95-13 should apply to TCEI;

WHEREAS, with respect to pedestals and lamp standard bases, the Commission is of the view that there is insufficient justification for the establishment of rates for access to these facilities;

MTS

WHEREAS Decision 95-13 required MTS to provide reasons why it should not be subject to all the terms and conditions, including rates, established in that Decision;

WHEREAS MTS submitted that there is no reason why the company should not be subject to Decision 95-13 in principle;

WHEREAS MTS submitted, however, that more than 95% of the its aerial plant is attached to poles owned by Manitoba and Winnipeg Hydro, and is therefore subject to increases in lease rates demanded by those companies;

WHEREAS, as a result, MTS requested that this circumstance be taken into consideration by the Commission in establishing any rate for the use of its support structure;

WHEREAS, in reply, the Manitoba Cable Television Association (MCTA) submitted that the rates established in Decision 95-13 should be applied with respect to MTS and, moreover, that the rates set out in Decision 95-13 should represent the maximum rate payable by any single cable operator;

WHEREAS MCTA submitted that where the Decision 95-13 rate is higher than the rate charged to MTS for that space by Hydro utilities, the support structure costs should be divided equally among the users;

WHEREAS the Commission notes that MTS is not unique in leasing a majority of its aerial plant from hydro utilities, as similar situations arise in the operating territories of other telephone companies;

WHEREAS, in the Commission's view, the terms and conditions, including rates, established in Decision 95-13 should apply to MTS;

QUÉBEC-TÉLÉPHONE AND TÉLÉBEC

WHEREAS Decision 95-13 required Québec-Téléphone and Télébec each to provide reasons why they should not be subject to all the terms and conditions, including rates, established in that Decision;

WHEREAS both Québec-Téléphone and Télébec submitted that the determinations in Decision 95-13 should not apply in their territories;

WHEREAS both companies generally submitted that because of the large and rural nature of their operating territories, the requirements of Decision 95-13 would place an undue burden on their accounting and billing systems, and that the rates set out in Decision 95-13 would, if implemented, have a negative effect on their revenues;

WHEREAS, in reply, the association des câblodistributeurs du Québec (ACQ) submitted that neither company has demonstrated why it should benefit from a separate regime more favourable than the one established in Decision 95-13 for other territories, including companies operating in largely rural areas;

WHEREAS ACQ also noted that neither TCEI nor MTS opposed the extension of Decision 95-13 in their operating territories;

WHEREAS, by letter dated 18 March 1996, Télébec requested that the Commission not make a determination with respect to Télébec's support structures pending its filing of a more comprehensive economic study, which it stated it would be in a position to file by the end of June 1996;

WHEREAS Télébec filed its submission on 28 June 1996 and stated that on the basis of its study a monthly pole rate of $1.29 is justified;

WHEREAS on the basis of this study the monthly pole rate of $0.80 exceeds the causal costs identified by Télébec;

WHEREAS, in the Commission's view, neither Québec-Téléphone nor Télébec have demonstrated that Decision 95-13 should not apply to them and considers that the implementation of Decision 95-13, in those territories, would result in a revenue impact that is acceptable;

WHEREAS, in the Commission's view, the terms and conditions, including rates, established in Decision 95-13 should apply to both Québec-Téléphone and Télébec;

UNIFORM AGREEMENTS AND TARIFFS

WHEREAS the cable television companies or their associations noted the considerable variations in wording in the tariffs, as well as a desire for a uniform national tariff that would alleviate many of their concerns;

WHEREAS, by letter dated 15 December 1995, CCTA indicated its desire to participate in direct negotiations with Stentor Resource Centre Inc. (Stentor) to develop a new support agreement which could serve as a basis for national tariffs and agreements on support structures;

WHEREAS, by letter dated 27 December 1995, Stentor, on behalf of BC TEL, Bell, Island Tel, MT&T, NewTel, NBTel, and Northwestel, indicated it was amenable to entering into consultative talks towards the development of mutually acceptable support structure agreements with the CCTA, on behalf of cable television undertakings;

WHEREAS Stentor submitted that such consultations be conducted with a view to submitting for Commission approval, within 90 working days of a Commission decision in this proceeding, mutually acceptable support structure agreement(s);

WHEREAS Stentor stated that concurrent with the above-noted discussions towards revised common support structure agreement(s), Stentor and its member companies would undertake to develop common support structure tariff(s) which it would file as well, within 90 days of a decision in this proceeding and that interested parties should then be given 15 working days to file comments with an additional 15 days for Stentor to reply;

WHEREAS TCI did not support this process;

WHEREAS, while the Commission notes that not all telephone companies are supportive of entering into a consultative process in order to develop mutually acceptable agreements and common tariffs, it considers such agreements and tariffs to be desirable and thus encourages their development;

WHEREAS subsection 7(a) of the Telecommunications Act provides that the Canadian telecommunications policy has as one of its objectives: "to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions";

WHEREAS, in order to facilitate a process where the parties can reasonably hope to resolve most (if not all) of the issues relating to a uniform support structure agreement and tariff, the Commission has set out the parameters of the consultative process below; and

WHEREAS the Commission considers that, given the short time frame established for the consultative process in the order below, the parties may wish to retain the services of a private mediator in order to maximize the possible areas of agreement -

IT IS HEREBY ORDERED THAT:

1. The telephone companies are to issue forthwith revised tariff pages reflecting the monthly rates established in Decision 95-13 and, in particular, it is further ordered that:

A. Pole

The charge applies to each pole, either owned by the company or on which it is entitled to allow placement of the customers' facilities, as follows:

(1) for all of the customers' strands attached to such pole;

(2) when (1) is not applicable, for all of the company's strands supported by such pole, which strands the customer uses; and

(3) when (1) and (2) are not applicable, for all other of the customers' facilities, except subscriber drop wires, attached to such pole.

For greater certainty there shall be only one charge per customer for each pole in any circumstance.

B. Strand

The charge applies to each strand span or portion thereof owned by the company or on which it is entitled to allow the placement of the customers' facilities, for each customers' cable having a maximum outer diameter of 30.5 millimetres attached to such strand.

C. Conduit

The charge applies for each 30 metres of conduit or fraction thereof, accumulated for each customer's distribution area, owned by the company or on which it is entitled to allow the placement of the customer's facilities, for each customer's cable having a maximum outer diameter of 30.5 millimetres installed in an underground support structure. The charge applies for each such customer's cable installed in an underground support structure in each of the following conditions:

(1) when the customer's cable uses a conduit for a distance less than 30 metres; or

(2) when the customer's cable enters a manhole through a conduit but uses less than 30 metres of conduit; or

(3) when the customer's cable leaves a manhole through a conduit but uses less than 30 metres of conduit; or

(4) when the customer's cable uses a manhole without using a conduit to enter or leave the manhole.

2. The telephone companies are to issue forthwith revised tariff pages stipulating that:

"Support structure users may not assign, sub-let, sub-license or otherwise transfer their access to support structures to third parties without the telephone company's prior written consent, which consent shall not be unreasonably withheld."

3. The telephone companies are to issue forthwith revised tariff pages stipulating that access to support structures may not be restricted, except where installation of facilities will unduly interfere with the rights of other joint users.

4. The telephone companies are to issue forthwith revised tariff pages stipulating that, when cable companies or other users, as the case may be, have an existing presence on a support structure, they should only be required to notify the telephone company that they intend to place one or more additional subscriber drop(s).

5. The telephone companies are to issue forthwith revised tariff pages stipulating that the type of plant placed, or the location where it is placed on support structures, may not be restricted, except if those restrictions relate to safety and technical requirements.

6. The telephone companies are to issue forthwith revised tariff pages giving effect, as applicable, to the Commission's other findings above.

7. The telephone companies are to issue the revised tariff pages referred to in paragraphs 1, 2, 3, 4, 5, and 6 above with an effective date of 1 August 1995, except for TCI whose pages shall be effective 4 August 1995; and that, where necessary, interest shall accrue in accordance with the telephone company's Terms of Service.

8. The telephone companies are to issue forthwith revised tariff pages, effective 1 August 1995, except for TCI whose tariff pages shall be effective 4 August 1995 stipulating that:

"Cable television undertakings and telecommunications carriers are permitted to construct, maintain and operate their own plant and equipment on or in the company's support structures, using their own labour force or contractor, subject to the terms and conditions contained in this tariff or in any Support Structure Agreement approved by the Commission. Work, for which an application for use of support structures is required, is to be performed only after the customer has notified the company in writing, at least 20 days in advance, of the person, firm, partnership or corporation, including the customer, that is to perform the work. Within 15 days of receiving such notice, the company may, based on objectively reasonable grounds, notify the customer that the person or entity that is to perform the work (excluding the customer) is unacceptable, and the work cannot be performed on that basis."

9. TCEI is to file proposed tariff pages for approval, within 30 days, reflecting as applicable, the Commission's findings in Decision 95-13 and this Order, effective 31 October 1995.

10. MTS is to file proposed tariff pages for approval, within 30 days, reflecting, as applicable, the Commission's findings in Decision 95-13 and this Order.

11. Québec-Téléphone and Télébec are to file proposed tariff pages for approval, within 30 days, reflecting as applicable the Commission's findings in Decision 95-13 and this Order.

12. Stentor (on behalf of its members, excluding SaskTel), Québec-Téléphone, TCEI and Télébec are to enter into good faith negotiations with the CCTA (on behalf of its members) and the CTA (on behalf of its members) with a view to developing a mutually acceptable model support structure agreement and model support structure tariff.

13. Stentor is to file within 120 days of this Order, serving a copy on all interested parties, a joint report of those who participated in the negotiations referred to in paragraph 12, identifying the following: (a) the participants in the negotiations; (b) a general description of the process followed by the participants to reach an understanding; (c) the points on which all participants have agreed; (d) the points on which agreement was not reached; (e) a summary of the position of each participant with respect to the points which have not been agreed upon; (f) an indication of whether, if more time was available to negotiate, an agreement would likely be achieved on most points which have not been agreed upon, and if so, how much more time would be required to reach such an agreement.

Allan J. Darling
Secretary General