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ARCHIVED -  Telecom Order CRTC 97-688

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Telecom Order

Ottawa, 26 May 1997
Telecom Order CRTC 97-688
Ontario Northland Telecommunications (O.N. Tel) filed an application on 19 July 1996, pursuant to section 34 of the Telecommunications Act (the Act), requesting forbearance from the regulation of its Datapac, Hyperstream and Pospac and future X.25 and packet data and frame relay services.
File No.: 96-2369
1. O.N. Tel requested that the Commission refrain from exercising all powers and performing all duties under sections 25, 29 and 31 and subsections 27(1), 27(5) and 27(6) of the Act.
2. O.N. Tel noted that, in Telecom Order CRTC 96-130, 19 February 1996 (Order 96-130), the Commission forbore from regulating, with respect to the same sections of the Act, the provision of these services by the federally-regulated Stentor Resource Centre Inc. (Stentor) companies.
3. The Commission, in Order 96-130, forbore from regulating the provision of Datapac, Hyperstream and Pospac and future X.25 and packet data and frame relay services by the Stentor companies pursuant to section 34 of the Act, finding that the provision of these services is or will be subject to sufficient competition to protect the interests of users.
4. O.N. Tel stated that it does not control the commercial arrangements for the provision of these services to its customers because subscribers for these services within O.N. Tel's operating territory are generally large businesses which utilize these services on a regional or national basis and have a requirement to extend these services into O.N. Tel's operating territory.
5. O.N. Tel submitted that its tariffs for the provision of these services continue to refer to the Bell Canada (Bell) General Tariff or the Stentor National Services Tariff, for the provision of the equivalent service offered by Bell and/or Stentor, although these tariffs are no longer in existence.
6. O.N. Tel stated that, pursuant to the current arrangement between Bell and O.N. Tel, it has very limited control over the terms or rates under which these services are offered, as Bell markets, sells and bills these services on O.N. Tel's behalf.
7. O.N. Tel submitted that, on 16 September 1994, in Telecom Decision CRTC 94-19, the Commission stated, in addressing the criteria for the application of section 34(1) of the Act, that forbearance under this section "should be limited to situations where rates would remain just and reasonable and where rates and services would remain available without unjust discrimination, regardless of the lack of either regulation or sufficient competitive market forces".
8. O.N. Tel submitted that it met the criteria established in section 34(1) of the Act, as packet data and frame relay services are provided in the context of the terms and conditions applicable to Bell's/Stentor's packet data/frame relay services and as the Commission has already forborne with respect to the terms and conditions under which Bell/Stentor offer such services.
9. O.N. Tel submitted that, inasmuch as these services are provided largely to customers who have obtained equivalent services from Bell/Stentor as part of larger regional or national requirements, the potential for unjust discrimination after forbearance is negligible.
10. O.N. Tel submitted that it would be impractical to amend its tariffs to delete reference to the terms and conditions in Bell and/or Stentor tariffs and, instead, include terms in its own tariffs, because the current marketing arrangements would require Bell and/or Stentor to notify O.N. Tel of any changes to the relevant terms, resulting in delays in implementation and in a requirement for Bell and/or Stentor to keep administrative arrangements with O.N. Tel which, in O.N. Tel's view, would be in direct conflict with the policy objectives inherent in forbearance.
11. O.N. Tel indicated that it is currently the only provider of packet data services within its territory.
12. In the Commission's view, in the case of O.N. Tel, unlike the case of the Stentor companies, it is not possible to forbear pursuant to subsection 34(2) of the Act because there is not, nor is there likely to be, sufficient competition in the provision of these services in O.N. Tel's territory to protect the interests of users.
13. The Commission is of the view that forbearance would be appropriate in O.N. Tel's case, as the rates applicable in O.N. Tel's territory are set by Bell/Stentor based on the competitive markets that prevail in territories of the federally regulated Stentor companies.
14. The Commission therefore finds, as a question of fact, that it would be consistent with the Canadian telecommunications policy objectives of the Act to forbear, pursuant to subsection 34(1), in the same manner applied to the Stentor companies in Order 96-130, from regulating O.N. Tel's provision of the above-mentioned services.
15. O.N. Tel requested that the Commission refrain from exercising all powers and performing all duties under sections 25, 29, and 31 and subsections 27(1), 27(5) and 27(6) of the Act.
16. In Order 96-130, the Commission also partially forbore from section 24, retaining it only for existing conditions governing treatment of customer confidential information and by-pass restrictions (and required these conditions to be incorporated into contracts and other arrangements with customers on a going-forward basis) and for the ability to impose conditions in the future.
17. On a going-forward basis, commencing immediately, all such conditions are to be included, where appropriate, in all contracts or other arrangements with customers for the provision of these services.
18. In Order 96-130, the Commission stated that upon offering any such future services, a block diagram must be filed with the Commission by the offering company showing all types of plant resources to be employed and indicating whether such resources are discrete or shared, together with the description of the general types of applications which may be handled by the service in order to demonstrate that the service meets the conditions of forbearance.
19. The Commission notes that, as is the case for Stentor members, the Commission will continue to exercise powers and perform duties under sections 27(2), 27(3) and 27(4) in relation to unjust discrimination and undue or unreasonable preference with regard to issues related to access to the network and the resale and sharing of the services forborne from in this Order.
20. In light of the forgoing, the Commission orders that:
(a) Pursuant to subsection 34(4), effective the date of this Order, sections 24 (in part), 25, 29 and 31 as well as subsections 27(1), (5) and (6) of the Act do not apply to O.N. Tel's Datapac, Pospac, Hyperstream and future X.25 and packet data and frame relay services to the extent that they are inconsistent with the Commission's determinations herein.
(b) O.N. Tel is directed to issue tariff pages, within 15 days of the date of this Order, withdrawing the tariffs for Datapac, Pospac, Hyperstream and X.25 and packet data and frame relay services.
(c) Pursuant to subsection 25(4) of the Act, the rates charged by O.N. Tel for these services are ratified from the effective date of Order 96-130 to the date of this Order.
Allan J. Darling
Secretary General
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