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Ottawa, 26 June 1998
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Telecom Order CRTC 98-625
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On 30 August 1996, AGT Limited (now TELUS Communications Inc. (TCI)), filed Tariff Notice (TN) 820 to provide for the trunk-side interconnection, with common channel signalling #7 (CCS7), of the facilities of Wireless Service Providers (WSPs) with the public switched telephone network (PSTN). TN 820 was given interim approval in Telecom Order CRTC 96-1064 dated 27 September 1996.
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File Nos.: 8662-T10-01/97 and TCI TN 820
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1. Subsequently, comments were received from Clearnet Communications Inc. (Clearnet), Microcell Telecommunications Inc. (Microcell), Rogers Cantel Inc. (Cantel), and the Canadian Wireless Telecommunications Association (CWTA). The comments addressed the tandeming provisions for trunk-side connection and the fact that TCI's tariff required CCS7 interconnection with its gateway signal transfer point (STP) in Calgary. On 17 January 1997, the Commission issued Telecom Order CRTC 97-79 (Order 97-79) directing TCI to file proposed tariff pages for interim approval, that would, among other things, provide for (1) tandem functionality (and associated rates) for trunk-side connection and (2) CCS7 connection to the Calgary STP at the option of WSPs.
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2. On 17 February 1997, TCI filed the required proposed tariff pages under TN 820A, together with applications to stay and review and vary that element of the Commission's direction in Order 97-79 requiring that TCI permit WSPs which interconnect with the PSTN in TCI's territory to interconnect with the CCS7 network, for the associated signaling, at a Stentor Resource Centre Inc. (Stentor) Gateway STP outside TCI's territory.
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3. In its review and vary application, TCI submitted that: (1) the Commission had failed to consider a basic principle raised in the proceeding leading to Order 97-79; (2) a new principle had arisen as a result of Order 97-79; and (3) there was substantial doubt as to the correctness of Order 97-79.
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4. TCI submitted that the Commission had failed to consider a basic principle raised in the proceeding leading to Order 97-79 that when one carrier interconnects with a second carrier, it must do so in the operating territory of the second carrier unless both carriers agree to a different arrangement. TCI further submitted that this principle was the basis for the Commission's determinations in Telecom Decision CRTC 92-12, and that the Commission had applied it consistently since then when called upon to do so.
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5. TCI submitted that the new principle which had emerged from Order 97-79 was the requirement, not previously adopted by the Commission in TCI's submission, that carriers provide telecommunications services through the facilities of a third party carrier and thereby be required, by regulation, to co-ordinate their local operations for the provision of local services with a third party carrier. TCI argued that this new principle leads to significant results which were not foreseen by the Commission. Among such results is the threat to the independence of the individual Stentor companies by disregarding their separate corporate identities, and requiring a measure of operational integration where there is no agreement to do so. TCI submitted that Order 97-79 also establishes the principle that where one or more carriers (in this case, WSPs) find it convenient, any Canadian carrier may be required to jointly provide services with another Canadian carrier, regardless of whether these two Canadian carriers have agreed to do so.
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6. TCI submitted that there was substantial doubt as to the correctness of Order 97-79 because, among other things, the record of the proceeding leading to Order 97-79 was insufficient to form the basis for the Commission's determination as it disclosed little more than that WSPs would find it convenient to exchange CCS7 signalling with TCI at points of presence established by them outside of TCI's operating territory, and that it was technically feasible to do so. In further support of the substantial doubt submission, TCI argued that Order 97-79 required Bell Canada (Bell) and BC TEL to provide the Gateway STP switching in their territories and transport services to TCI's Gateway STP in Alberta, despite the Order not applying to Bell and BC TEL. TCI also submitted that the effect of the Commission's determination in Order 97-79 was to treat the transport facilities required to carry CCS7 signalling messages from the operating territories of Bell or BC TEL as essential facilities. In TCI's submission, the record of this proceeding clearly disclosed that this was erroneous as the WSPs can provide or otherwise arrange for the transport of their CCS7 signalling information to TCI's operating territory.
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7. Comments were received from Clearnet, Microcell, Cantel, and Stentor. Stentor agreed with TCI that the Commission had never directed any company to interconnect with the facilities of another company through a third company. The other interveners argued that the CCS7 network was a Stentor network and that therefore the interconnection could be made at any Stentor gateway STP on that network. Other arguments stressed that there was no physical requirement for an additional connection in TCI territory and cited the Interexchange Carrier (IXC) connection regime as precedent. Furthermore, interveners submitted that TCI's CCS7 interconnection requirement caused them to incur unnecessary cost for their national operations and was counter to their Joint Planning Agreements with Stentor.
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8. In reply comments, with respect to the first criterion, TCI submitted, among other things, that a mere reference in the Order to the parties' positions on the issue of extra-territorial interconnection was an insufficient record on which to base an abandonment of the principle that interconnection should take place in the operating territory of a carrier unless otherwise agreed. In TCI's submission, Order 97-79 failed to reveal evidence that the Commission had turned its mind to the principle and the implications of abandoning it. With respect to the second criterion, TCI submitted, among other things, that while it is possible that section 40 of the Telecommunications Act (the Act) provides the Commission with the power to order extra-territorial interconnection, this does not mean that it is good public policy to actually do it absent agreement.
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9. TCI also submitted that the interveners' arguments based on the Joint Planning Agreements signed with Stentor effectively amounted to a request that the Commission order the enforcement of such agreements, and that the Commission lacked the legal power to do so.
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10. The Commission is not persuaded that restricting extra-territorial interconnection to situations where agreement has been obtained among the parties has attained the level of a principle as argued by TCI. Moreover, the Commission notes that the alleged principle identified by TCI was never explicitly raised in the proceeding leading to Order 97-79.
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11. To the extent that TCI is arguing that the Commission failed to consider the issue of whether extra-territorial interconnection should be ordered, absent the agreement of all parties, the Commission disagrees with the company. The Commission notes that TCI had the opportunity, and chose to argue vigourously against the interveners' submissions that CCS7 interconnection should be allowed outside TCI's territory. The Commission carefully considered TCI's arguments, but concluded that the public interest would be best served by giving WSPs the choice of effecting CCS7 interconnection outside of TCI's territory, pending the establishment of a final regime for WSP trunk-side interconnection to the PSTN. In making this determination, the Commission effectively rejected the view that extra-territorial interconnection should only take place if all parties so agree.
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12. With respect to TCI's submission that an implicitly new principle has arisen as a result of Order 97-79 which casts doubt on the correctness of the Order, the Commission agrees with TCI that Order 97-79 is the first time the Commission has mandated extra-territorial interconnection of CCS7 if required by a second carrier. However, as with the previous argument, the Commission is not persuaded that the Commission' s determination regarding extra-territorial CCS7 interconnection in the proceeding leading to Order 97-79, has attained the level of a principle as such. The Commission is also not persuaded by TCI's arguments that allowing extra-territorial CCS7 interconnection at the option of WSPs casts doubt on the correctness of the Commission's Order.
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13. The Commission agrees with TCI that, from a strictly legal ownership perspective, the CCS7 network is not a Stentor network, but an interconnection of the segments of networks supplied and owned by each member company within its own respective operating territory. However, the Commission notes that for long distance traffic, the Stentor member companies have chosen to treat the CCS7 network as effectively a Stentor network by allowing IXCs to interconnect at any of the gateway STPs for the exchange of signaling information associated with long distance traffic within or between the territories of any other Stentor companies.
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14. The Commission further notes that of all the Stentor companies that have filed trunk-side connection tariffs with CCS7 for WSPs, only TCI insists that the interconnection of the signaling network also take place in its territory. Given that only Bell and TCI have tariffs for interconnection of a WSP's CCS7 network to a Stentor gateway STP, the Commission notes that WSPs, which obtain trunk-side connection in the territories of the other Stentor member companies, must interconnect their CCS7 network at either the Bell or TCI gateway STPs.
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15. The Commission also notes that, consistent with similar tariff provisions in the other Stentor companies' WSP interconnection tariffs, TCI's WSP interconnection tariff lists monthly rates per trunk-side interconnect trunk for "Transport of CCS7 Messages between the Stentor gateway STPs and the Stentor Company switches to which the CSO or the Wireless Service provider has obtained Trunk Side interconnection". Given these references, it appears to the Commission that TCI acknowledges that operationally the CCS7 network is a Stentor entity and that the company contemplated interconnection at Stentor Gateway STPs outside its own territory.
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16. The Commission considers that it is appropriate to treat the WSPs in the same manner as IXCs with respect to CCS7 interconnection, since both types of carriers include carriers who operate as national carriers. To obtain CCS7 interconnection to Stentor companies' CCS7 networks, IXCs are only required to interconnect at one Stentor company. Further, from an efficiency standpoint, the Commission considers that it is not in the public interest to require the WSPs to establish more interconnections than the signalling traffic volume requires.
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17. With respect to TCI's submission that there is substantial doubt as to the correctness of the determination because the Order requires Bell and BC TEL to effect CCS7 interconnection, despite these companies not being the subject of the Order, the Commission notes that neither Bell nor BC TEL have objected to the determination. Moreover, as pointed out above, Bell and BC TEL's Gateway STP facilities are regularly used to allow CCS7 interconnection outside their respective territories.
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18. With respect to TCI's essential facilities argument, the Commission notes that it addressed in Local Competition, Telecom Decision CRTC 97-8, dated 1 May 1997, those facilities that are seen as essential facilities in the context of a Competitive Local Exchange Carrier's (CLEC) requirements. The Commission notes that the criteria for essential facilities are specific to CLECs and do not apply to WSP interconnection.
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19. The Commission notes that several interveners submitted that TCI's application should be denied because, among other things, approval of it would mean that TCI would be in breach of the Joint Planning Agreement executed between Stentor and various WSPs. The Commission further notes that, in reply, TCI sought to rebut the breach of contract argument by submitting that denial of its application would effectively constitute an order of specific performance of the Joint Planning Agreement, and that the Commission has no legal power to order such a remedy.
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20. The Commission disagrees with TCI that its determination constitutes the exercise of a power of specific performance with respect to the Joint Planning Agreements. Similarly, the Commission is not persuaded by interveners' argument that the Commission should deny TCI's application simply because it may be inconsistent with the Joint Planning Agreements. In the proceeding leading to Order 97-79, and in this proceeding, the Commission is asked to rule on whether it is in the public interest that WSPs have the option of interconnecting at STPs located outside of TCI's territory. In determining this matter, the Commission is exercising the various powers available to it under the Act and is not purporting to order specific performance of the Joint Planning Agreements.
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21. In light of the above, the Commission finds that TCI has failed to satisfy the three review and vary criteria relied upon by TCI.
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22. The Commission therefore denies TCI's application, and, effective the date of this Order, gives interim approval to that part of TN 820A making CCS7 interconnection at the TCI STP optional at the discretion of WSPs.
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23. Given that the Commission has ruled on the merits of TCI's review and vary application, it is not necessary to dispose of the stay application as it is moot.
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24. The Commission notes in passing that review and vary applications filed after 20 March 1998 are considered in light of the guidelines enunciated in Guidelines for Review and Vary Applications, Telecom Public Notice CRTC 98-6, 20 March 1998.
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Laura M. Talbot-Allan
Secretary General
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This document is available in alternative format upon request.
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