ARCHIVED -  Telecom Costs Order CRTC 97-15

Telecom Costs Order

Ottawa, 13 August 1997

Telecom Costs Order CRTC 97-15

In re: Applications by Bell Canada (Bell) and TELUS Multimedia, a division of TELUS Cable Holdings Inc. (TELUS Multimedia) under the Broadcasting Act and the Telecommunications Act for authority to conduct technical and market trials - Telecom Public Notice CRTC 96-37 and Notice of Public Hearing CRTC 1996-14

Reference: 4615-310

1. Application for Costs by the Consumers' Association of Canada (CAC).

BACKGROUND

2. On 20 December 1996, the CAC requested that the Commission clarify the availability of intervener funding for the above-mentioned proceeding.

3. In a letter dated 17 January 1997, the Commission indicated that it would entertain any application for an award of costs incurred for participation in this proceeding to the extent that such participation relates to issues to be considered under the Telecommunications Act, including such issues regarding convergence matters. The Commission clarified that it does not have a similar power to award costs for participation in this proceeding regarding questions to be determined exclusively under the Broadcasting Act.

4. In the letter accompanying its final argument, dated 18 February 1997, the CAC asked for costs of its participation in the proceeding. By letter dated 26 February 1997, Commission staff asked the CAC to address the criteria set out in section 44 of the CRTC Telecommunications Rules of Procedure (the Rules) for an application for costs. In addition, in light of the Commission's 17 January letter, the CAC was asked to identify the issues in respect of which it was seeking costs.

POSITION OF PARTIES

5. On 13 March 1997, the CAC filed its submissions and argued that it participated responsibly and contributed to a better understanding of the issues by the Commission. The CAC stated that it focused on the issues concerning convergence, namely the "head start" issues, which included, in respect of Bell's applications, the questions of structural separation and the provision of a single bill for both telecommunications and broadcasting services.

6. In its response dated 24 March 1997, Bell submitted that the CAC's application for costs should be denied. Bell argued that most of the issues addressed by the CAC are not matters to be considered by the Commission under the Telecommunications Act, and therefore the Commission does not have the legal authority to make an award of costs. In particular, Bell noted that the "head start" issue is one to be determined under the Broadcasting Act as it relates to entry into the broadcasting distribution market. Similarly, Bell noted that the structural separation issue addresses concerns regarding anti-competitive behavior in the broadcasting distribution market and is not meant to address questions under the Telecommunications Act of just and reasonable rates or unjust discrimination.

7. Bell further submitted that with respect to matters that might relate to issues considered under the Telecommunications Act, such as the use of a single bill for telecommunications and cable services, the CAC did not contribute to the Commission's better understanding and, therefore an award of costs is not appropriate. Bell submitted that the CAC advanced "mostly broad, unsupported assertions" in their submissions. Bell also submitted that the submissions made by the CAC with respect to the head start issue were highly general without any organized analysis and those made with respect to the structural separation were simply limited to either agreeing or disagreeing with the applications submitted by Bell or TELUS Multimedia.

8. Finally, Bell submitted that if costs are awarded, they should be apportioned equally between both Bell and TELUS Multimedia.

9. TELUS Multimedia did not file a response to the CAC's application for costs.

DIRECTION AS TO COSTS

10. The application of CAC for an award of costs in respect of the above-noted proceeding is hereby approved in part, as set out below.

11. The Telecommunications Act gives full authority to the Commission to award costs of and incidental to proceedings before it. However, a similar power to award costs is not found in the Broadcasting Act. Accordingly, the Commission considers that in a proceeding such as this one, initiated pursuant to both the Telecommunications Act and the Broadcasting Act, it may only award costs for participation in relation to matters to be determined pursuant to the Telecommunications Act. Such matters include matters relating to convergence which are determined pursuant to the Telecommunications Act.

12. The Commission is of the view that the CAC's submission dealt mainly with three issues: (1) head start; (2) packaging of telecommunications and broadcasting services; and (3) structural separation. The Commission considers that the question of whether the applications violated the head start rule and whether structural separation should be required for Bell were matters to be decided, and which in fact were decided, under the Broadcasting Act. The Commission also notes that the CAC briefly addressed several other issues, such as the scope of the proposed trial; flexibility for tiering and linkage, and advanced substitution, which clearly fall within the scope of the Broadcasting Act.

13. In light of the above, the Commission concludes that the only issue addressed by the CAC that was determined pursuant to the Telecommunications Act, and thus for which costs may be available, is the issue of packaging of telecommunications and broadcasting services.

14. The Commission considers that in relation to the issue of packaging telecommunications and broadcasting services, the CAC's application meets the requirements of section 56 of the Telecommunications Act and the criteria set out in subsection 44(1) of the Rules for an award of costs.

15. Costs awarded herein shall be paid to the CAC by Bell and TELUS Multimedia, in equal proportions. The Commission notes that the CAC's intervention in the proceeding addressed the separate applications filed by Bell and TELUS Multimedia. The Commission considers that, accordingly, responsibility for this award of costs should be shared equally between the respondents.

16. Costs awarded herein shall be taxed by Ann Mainville-Neeson.

17. The CAC shall, within thirty days of this Order, submit a Bill of Costs and an Affidavit of Disbursements directly to the Taxing Officer, serving a copy on the respondents.

18. The respondents may, within two weeks of receipt of those documents, file comments directly with the Taxing Officer with respect to the costs claimed, serving a copy on the CAC.

19. The CAC may, within two weeks of receiving comments from the respondents, file a reply directly with the Taxing Officer, serving a copy on the respondents.

20. Documents to be filed or served must actually be received, not merely sent, by the relevant dates.

Laura M. Talbot-Allan
Secretary General

This document is available in alternative format upon request.

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