ARCHIVED -  Telecom Order CRTC 97-1244

Telecom Order

Ottawa, 5 September 1997

Telecom Order CRTC 97-1244

On 8 April 1997, Avalon Publishing Corporation (Avalon) filed an application requesting that the Commission direct The Corporation of the City of Thunder Bay - Telephone Division (Thunder Bay Telephone) to make non-confidential residential and business directory listings available in machine-readable form to Avalon for a fee.

File No.: 8622-A26-01/97

1. Avalon requested that the Commission direct Thunder Bay Telephone to:

a) issue, within 21 days of the Commission's decision, interim tariffs for a Directory File Service (DFS) at interim rates specified in Provision of Directory Database Information and Real-Time Access to Directory Assistance Databases, Telecom Decision CRTC 95-3, 8 March 1995 (Decision 95-3);

b) make DFS available to Avalon within 21 days of the issuance of the interim tariffs; and

c) coincident with availability of DFS, file proposed final tariff pages, with a supporting economic study.

2. Avalon also requested that the Commission establish a process to set final rates by the fourth quarter of 1997, as contemplated in the proceeding initiated by BC TEL and Bell Canada - Final Tariffs For Directory File Service, Telecom Public Notice CRTC 97-4, 14 February 1997 (PN 97-4).

3. Citing Decision 95-3 and other rulings, Avalon maintained that, in making current listing information exclusively available to its directory publisher, Tele-Direct Services Inc. (TD), and in refusing to provide that information to Avalon, Thunder Bay Telephone is granting an undue preference or an unreasonable advantage to TD contrary to section 27 of the Telecommunications Act.

4. In its response of 7 May 1997, Thunder Bay Telephone requested that the Commission:

a) deny the request;

b) issue a public notice to initiate a proceeding to consider the applicability of Decision 95-3 to Thunder Bay Telephone and other telephone companies similarly situated;

c) include the directory file issue in a forthcoming proceeding on local competition for independents, as anticipated in Regulatory Framework for the Independent Telephone Companies in Quebec and Ontario (Except Ontario Northland Transportation Commission, Québec-Téléphone and Télébec ltée, Telecom Decision CRTC 96-6, 7 August 1996 (Decision 96-6); or

d) order Avalon to pay the same amount as TD presently pays annually to Thunder Bay Telephone for publishing its directory.

5. Thunder Bay Telephone stated that it is different from the telephone companies to which Decision 95-3 applies, and that the Commission recognized in Decision 96-6 that local competition in the independents' territories could differ from local competition in the territories served by the Stentor member companies.

6. Thunder Bay Telephone argued, among other things, that it was not granting an undue preference or unreasonable advantage, but rather was increasing its own revenues by contracting for the services of an independent contractor to publish its directories, which have been found by the Commission to be an integral part of telephone service.

7. Thunder Bay Telephone stated that it is paid by TD for publishing the directories in the form of a significant percentage of the gross revenues that TD generates from the sale of Yellow Pages advertising.

8. Thunder Bay Telephone stated that the effective cost per listing to TD is about $2 per month, which reduces the local monthly charges to Thunder Bay Telephone's subscribers.

9. Thunder Bay Telephone submitted that new evidence shows there is no appreciable increase in general or consumer welfare from the publication of independent directories, but that there is "free riding" by the independent publishers.

10. Thunder Bay Telephone maintained that it is subject to the Municipal Freedom of Information and Protection of Privacy Act (the Municipal Privacy Act) and that information provided by its local subscribers falls within the purview of this Act.

11. Thunder Bay Telephone stated that Avalon did not follow the procedures under the Municipal Privacy Act to get the listing information, and that the Commission should not act on Avalon's application until relief under the Municipal Privacy Act has been denied, as it would likely put the City of Thunder Bay in breach of its existing statutory obligations.

12. In its reply dated 20 May 1997, Avalon stated that, although Thunder Bay Telephone is a publicly owned and operated entity, it must abide by the Telecommunications Act, in particular, section 27.

13. Avalon stated that Thunder Bay Telephone's emphasis on the net revenues it receives from TD and its obligation to produce directories does not address Avalon's view that Thunder Bay Telephone is conferring an undue preference on its publisher while refusing to provide listing information to publishers of competitive directories.

14. Avalon added that the Commission and the Governor in Council, in Order in Council P.C. 1996-1001, 25 June 1996, have found directory competition to be in the public interest.

15. Avalon submitted that the Municipal Privacy Act does not apply in view of the fact that Thunder Bay Telephone's listings are freely available in machine-readable form on the Internet through Canada 411, and to telemarketers and other businesses through TD's InfoDirect Division.

16. Avalon stated that local telephone service competition is not an issue, since it is not seeking to compete as a local exchange carrier.

17. Avalon stated that issuing a public notice as proposed by Thunder Bay Telephone with regard to the above issues would needlessly delay matters.

18. The Commission considers the issue of the provision of subscriber listings to independent directory publishers to be separate from the issue of local competition.

19. Accordingly, the Commission does not consider it necessary or appropriate to wait for a future proceeding on local competition in the territories of the independent telephone companies in order to deal with Avalon's application.

20. Similarly, the Commission does not consider it appropriate to issue a public notice with regard to the applicability of Decision 95-3 (as amended by Order in Council P.C. 1996-1001) to similar independent telephone companies; rather, the Commission considers it appropriate to deal with the provision of subscriber listing information by independent telephone companies on a case-by-case basis.

21. In this context, the Commission notes that some independent telephone companies in Ontario and Quebec have their listings included in directories provided by Bell Canada (Bell).

22. In addition, the Commission considers that the demand for listings in the territories of the various independent companies may vary considerably.

23. The Commission is not persuaded that Thunder Bay Telephone can be distinguished from other telephone companies who have been directed to make listing information available in machine-readable form on the basis that it has no publicly traded shares and no shares owned by private interests.

24. The Commission notes that Thunder Bay Telephone is subject to the Telecommunications Act, and in particular section 27, as is any other carrier under the Commission's jurisdiction.

25. The Commission does not find persuasive Thunder Bay Telephone's assertion that, as a publicly owned and operated entity, it can be presumed to operate in the public interest and that its decisions are entitled to deference.

26. In Bell Canada - Provision of Telephone Directory Data Base Information in Machine-Readable Form, Telecom Decision CRTC 90-12, 14 June 1990 (Decision 90-12), in which the Commission ordered Bell to provide non-confidential, non-residential listing information, the Commission noted Bell's argument that it was furnishing Tele-Direct (Publications) Inc. (TD Pubs) with raw material to provide Bell with directory services under the agreement between Bell and TD Pubs.

27. In Decision 90-12, the Commission found that Bell had conferred an undue preference on TD Pubs by granting TD Pubs the exclusive right to use Bell's non-confidential, non-residential subscriber information for the purposes of selling directory advertising and producing and distributing directories.

28. Similarly, in Decision 95-3, the Commission found that, if the telephone companies were to retain exclusive access to non-confidential, residential listing information (including information unbundled on an exchange-level basis) in machine-readable form, or grant access solely to their affiliates, it would constitute an undue preference or unreasonable advantage.

29. The record of this proceeding indicates that Thunder Bay Telephone is providing TD with similar exclusive access to subscriber listing information.

30. In light of the above, the Commission considers that Thunder Bay Telephone is conferring a preference or advantage on TD.

31. The Commission also considers that Thunder Bay Telephone has not met its onus under section 27 of the Telecommunications Act to establish that this preference is not undue or unreasonable.

32. In particular, although Thunder Bay Telephone argued that new evidence shows that there is no appreciable increase in general or consumer welfare from the publication of independent directories, it did not actually provide the "new evidence" to which it referred or attempt to explain how that evidence might apply in its particular circumstances.

33. Further, although Thunder Bay Telephone argued that the revenues it receives from TD are used to reduce charges that would otherwise be paid by Thunder Bay Telephone's local service subscribers and that telephone directory advertising revenues may be reduced when an independent directory publisher enters the local market, it did not attempt to quantify any potential impact either on TD's advertising revenues or on local rates.

34. In the Commission's view, the Municipal Privacy Act does not preclude the disclosure of subscriber listings.

35. Further, the Commission considers that its decisions relating to the conferring of an undue preference or to unjust discrimination under the Telecommunications Act would take precedence over any contrary obligations under the provincial statute.

36. In light of the above, the Commission finds that Thunder Bay Telephone is conferring an undue or unreasonable preference on TD by providing it with exclusive access to Thunder Bay Telephone's non-confidential business and residential directory listing information.

37. Thunder Bay Telephone requested that the Commission order Avalon to pay the same amount for listing information as TD presently pays annually to Thunder Bay Telephone for publishing its directories.

38. Thunder Bay Telephone submitted that interim rates for listings established in Decision 95-3 are inadequate and that there is no assurance that Avalon could pay retroactive final rates.

39. Avalon maintained that Thunder Bay Telephone's concern about Avalon's ability to pay for listings has no basis and is addressed by the payment regime established under the DFS license agreement.

40. Avalon submitted that evidence in the PN 97-4 proceeding indicates that the interim DFS rates ($.06 per residential listing and $.065 per business listing) are far too high.

41. Avalon added that it was unrealistic for it to pay the same amount for the listings as TD, unless Avalon were given the exclusive right to publish directories on behalf of Thunder Bay Telephone and to receive all the resulting revenue stream.

42. The Commission does not consider it appropriate that Avalon pay the same effective rate for listings as TD, since TD will continue to have the exclusive right to produce Thunder Bay Telephone's directories and therefore to derive benefit from Thunder Bay Telephone's position as the supplier of local telephone service.

43. Avalon requested that Thunder Bay Telephone file interim tariffs for DFS in 21 days and make the service available 21 days thereafter.

44. The Commission considers that Thunder Bay Telephone will require a reasonable period of time to look into the means by which DFS can be delivered.

45. Based on the foregoing, the Commission orders that:

a) Thunder Bay Telephone's request for a public notice is denied.

b) Thunder Bay Telephone is to provide a DFS to independent directory publishers in a manner consistent with Decision 95-3, as amended by Order in Council P.C. 1996-1001 and by Telecom Order CRTC 96-1522, 23 December 1996 (Order 96-1522); specifically, Thunder Bay Telephone is to make non-confidential business and residential listings available to independent directory publishers in machine-readable form on an exchange level basis, subject to the condition that the information be used only to compile, produce, publish and distribute telephone directories, and that it not be resold, rented or otherwise disposed of to any third party.

c) Thunder Bay Telephone is to issue, within 30 days, interim tariffs for the provision of a DFS to independent directory publishers at the interim rates specified in Decision 95-3 and under terms and conditions similar to those in the interim tariffs and associated licensing agreements

in place for the telephone companies subject to Decision 95-3 and Order 96-1522.

d) Subject to confirmation from Avalon within ten days that it wishes to subscribe to the service, the interim tariffs in paragraph c) above are to specify that listing information will be available 90 days from the date of this Order.

e) If no confirmation is received from Avalon as specified above, the interim tariffs are to specify that listing information will be available 90 days from the date of a request for the service.

f) Thunder Bay Telephone is to file proposed final tariffs, with a supporting economic study, coincident with it making listing information available as directed in paragraph d) or e) above.

g) If Thunder Bay Telephone is not in a position to file proposed final tariffs at the time specified in paragraph f) above, it may file a proposal for the development and filing of final rates.

h) Thunder Bay Telephone is to amend, with the next edition, the introductory pages of its telephone directories to advise subscribers that listing information is provided to independent publishers and that listings are available on the Internet.

Laura M. Talbot-Allan
Secretary General