ARCHIVED -  Telecom Order CRTC 98-728

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Telecom Order

Ottawa, 23 July 1998
Telecom Order CRTC 98-728
Directory File Service Tariffs and Associated Licensing Agreements:
TCI Tariff Notice (TN) 916
BC TEL TNs 3536/A and 3649
Bell TN 5892
NewTel TNs 563/A
Northwestel TN 643
PART A - Background
1.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), the Commission ordered BC TEL, Bell Canada (Bell), The Island Telephone Company Limited (now called Island Telecom Inc.) (Island Tel), Maritime Tel & Tel Limited (MT&T), The New Brunswick Telephone Company, Limited (NBTel), NewTel Communications Inc. (NewTel) and TELUS Communications Inc. (TCI) to, among other things, issue general tariffs making non-confidential residential and business listing information available in machine-readable form, unbundled on an exchange-level basis (hereafter referred to as Directory File Service (DFS)). Pending the development of final rates, the Commission set interim rates for the listing information at $0.06 per residential listing and $0.065 per business listing, with a $500.00 set-up fee per service request.
2.By letter dated 29 July 1996, following the Governor in Council's disposition of a petition to Cabinet regarding Decision 95-3 (Order in Council 1996-1001), the Commission issued directions to the above-noted companies as to the filing of interim and final tariffs for DFS. In Telecom Order CRTC 96-1522, 23 December 1996 (Order 96-1522), the Commission directed MTS NetCom Inc. (now called MTS Communications Inc.) (MTS) and Northwestel Inc. (Northwestel) (collectively with the companies in paragraph 1, the telephone companies or telcos) to file tariffs making DFS available.
3.Pursuant to its letter of 29 July 1996, the Commission received applications proposing final rates, terms and conditions for the provision of DFS to independent telephone directory publishers from BC TEL, under TN 3536 dated 25 October 1996, and from Bell, under TN 5892 dated 12 December 1996. With their applications, the two companies filed associated licensing agreements and supporting economic information. Among other things, the proposed final tariffs provide for rates ranging from $0.165 to $0.18 per listing for master file listings, and $0.33 to $0.36 per listing for update listings, plus set-up fees of $500.00 for a master file and $1,000.00 for a master file and update files. Applicants must enter into a licensing agreement with the company. The proposed tariff further specifies that the listing information provided is not to be shared, re-sold, rented or otherwise disposed of to third parties (the non-resale provision). Decision 95-3 and the Commission's letter of 29 July 1996 contemplated that final rates would be made effective back to the effective date of interim rates. BC TEL and Bell therefore proposed that final rates be effective as of 25 October 1996.
4.In Decision 95-3, the Commission sought comment in relation to the appropriateness of Bell making available eight additional data elements. In a letter dated 21 August 1996, Bell noted that it had begun discussions with the parties requiring these additional elements. In another letter dated 28 November 1996, Bell noted that Directory Files are only available on an exchange basis as listed in Item 60 of its General Tariff. In addition, Bell's DFS tariffs provide that government listings supplied correspond to the listings in Bell's published directory for the exchanges involved. Bell stated in its letter that government listings are provided on a directory basis, rather than on an exchange basis.
5.In Telecom Order CRTC 97-179 dated 14 February 1997, the Commission granted interim approval to the revisions to the proposed licensing agreements filed by Bell and BC TEL with TNs 5892 and 3536, respectively, as well as to the limitation of liability in relation to the provision of DFS filed by BC TEL under TN 3536A.
6.On 14 February 1997, the Commission issued Telecom Public Notice CRTC 97-4, BC TEL and Bell Canada - Final Tariffs for Directory File Service (PN 97-4), providing for a public proceeding with interrogatories on the applications. In addition to the telcos, 42 interested parties registered as part of the proceeding.
7.On 22 May 1997, following Local Competition, Telecom Decision CRTC 97-8, 1 May 1997 (Decision 97-8), Bell and BC TEL, as well as the other federally regulated Stentor telephone companies, amended their DFS tariffs to include the sale of DFS to competitive local exchange carriers (CLECs) for the purpose of providing directories or directory assistance (DA).
8.On 14 May 1997, TCI filed TN 916 submitting its proposed final rates for DFS and the associated licensing agreement. The Commission granted interim approval to the licensing agreement on 9 June 1997.
9.Comments on the proposed final rates for DFS and the proposed DFS licensing agreements were received from Call-Net Enterprises Inc.; the Canadian Wireless Telecommunications Association (CWTA); the Canadian Cable Television Association; Rogers Cantel Inc. (Cantel); Frank Therrien on behalf of Telco Imprimerie; Online Direct Inc. (Online); and Southam Inc. (Southam), Thomson Newspapers Company Limited (Thomson), White Directory of Canada, Inc. (White Directory) and Koocanusa Publications Inc. (the Publishers or White Directory et al.). Stentor Resource Centre Inc. (Stentor), Bell, BC TEL and TCI filed reply comments.
10.Stentor submitted reply comments on behalf of Island Tel, MT&T, MTS, NBTel, NewTel, Northwestel and TCI. Stentor noted that the provisioning of DFS by these companies would be based on similar (if not equivalent) technical, business, legal and regulatory considerations to those incorporated in the BC TEL and Bell proposals. As such, Stentor submitted that the comments of interested parties would apply equally to these companies, as they would to BC TEL and Bell. In this respect, Stentor noted that the reply comments provided by BC TEL and Bell adequately reflect the position of these companies on the DFS issues raised by interested parties.
11.Legal counsel to the Publishers provided on a confidential basis an informal survey of DFS demand in the 1997-2000 timeframe for a limited sample of large independent directory publishers.
12.Bell noted in its reply comments that an abridged version of the survey was not provided. Bell stated, among other things, that "the information obtained from the survey could be assumed to be speculative, self-serving, selective and biased". Accordingly, Bell submitted that the survey should be "summarily dismissed" by the Commission.
13.In the Commission's view, the harm which would result from disclosure of the survey outweighs any public interest in disclosing it, as the release of disaggregated or aggregated information would be harmful to each of the publishers surveyed. The Commission notes that it did not require Bell to place aggregated demand information on the public record pursuant to earlier requests by parties for disclosure of confidential information filed by Bell.
14.Accordingly, while an abridged version was not filed, the Commission accepts the survey on the record of the proceeding. However, the Commission notes that minimal weight was given to the survey.
15.Several parties submitted that the proposed rates are excessive, not reflective of costs and not responsive to market requirements as the rates would prevent effective competition (in both directory publishing and DA service markets) from developing as intended by Decision 95-3. The Publishers and others argued that Bell and BC TEL are artificially inflating their costs and underestimating demand over a truncated study period to come up with the rates they propose. Several parties submitted that demand estimates should be developed under an "all carriers approach", taking into account all the sources of demand for DFS (CLECs, wireless service providers (WSPs), the telcos themselves, etc.). The Publishers submitted that the economic study should be based on a reasonable study period of 10 years.
16.Cantel submitted that, in the United States (U.S.) where DFS is provided via a tariff, the charge per listing is in the $0.03 to $0.05 range for both master and update listings, with little or no set up fee. The Publishers submitted that final rates should be set at no higher than one cent per listing for master listings and updates, plus a set-up fee of $50.00. The Publishers submitted that, based on available cost data from U.S. telephone companies and the rates charged by Tele-Direct Publications Inc. (Tele-Direct), Bell's publishing affiliate, for other listing services, the actual incremental cost of DFS should be well below one cent per listing.
17.The Publishers submitted that the rates for master lists and updates should be the same. The Publishers submitted that Bell and BC TEL have provided no cost related justification for higher rates for listing updates than for master subscriber lists. With respect to the retroactivity of the final rates, the Publishers submitted that final rates should not be above the interim rates.
18.In Bell's view, the rates are not excessive, nor are they designed to limit competition. BC TEL and TCI submitted that their rates are based on Phase II costs plus an appropriate mark-up. With respect to the rates for master and update listings, Bell stated that, while there are substantially fewer update listings, the processing required to compare listings on a month over month basis to determine which listings have been updated is considerable, and is reflected in the higher rates.
19.Bell also submitted that the DFS product is essentially different from the products sold by Tele-Direct's InfoDirect division such as those on CD-ROM. Specifically, DFS includes details of the listing format that is required by publishers to meet their particular needs, such as level of indent and letter of alphabetization.
20.With respect to the U.S. experience, Bell argued that the Publishers have filed selective information to support their argument that Bell's costs are too high. The Publishers did not file a comprehensive study on the sale of DFS in the U.S. and any significant differences with respect to the DFS market in Canada. BC TEL noted in counterpoint that GTE Corporation's directory listing rates range from US$0.117 to US$0.35 for master file listings, with update file listings ranging from US$0.198 to US$0.50.
21.With respect to an "all carriers approach", Bell noted that neither Bell nor Tele-Direct acting in the role of Bell's directory publisher requires the DFS product in order to publish directories or provide DA.
22.BC TEL and Bell submitted that a 10 year study period is appropriate only where long run stable conditions can be reasonably expected. With respect to DFS, this is not the case. BC TEL and Bell submitted that, with the advent of local competition as initiated by Decision 97-8, changing market conditions will likely require that DFS be withdrawn, or dramatically altered much sooner than could be appropriately reflected by a 10 year study period. BC TEL and Bell submitted that the five year study period used in the DFS economic study may, if anything, be too long.
23.The Commission notes that the parties differed over the level of U.S. rates for directory listing products. The Commission has given minimal weight to this evidence, relying primarily on causal costing principles in setting final rates.
24.While the Commission has generally preferred the use of an "all carrier" demand approach for the determination of rates, the Commission concludes that, given the underlying systems currently in place, it is more appropriate for the service to be priced based on the causal costs of serving competitors' demand. The Commission considers that this pricing approach would result in the lowest price for DFS customers.
25.The Commission considers that a study period of seven years is an appropriate time-frame to capture the cash flows of the service, and strikes an appropriate balance between the use of an anticipated service life exceeding five years and uncertainty associated with forecasts over a longer period.
26.The Commission is further of the view that the telcos have underestimated the demand for DFS for DA purposes that will occur as a result of local competition. As a result, the Commission has adjusted the demand to reflect an additional demand of 30%. Moreover, the Commission considers that it is appropriate to make a number of downward cost adjustments to the inputs to the studies submitted by BC TEL, Bell and TCI. The most significant adjustment is to reduce Bell's Tele-Direct per listing subcontract charge (included in Bell's service provisioning costs) by $0.036.
27.In light of the above and based on the record of this proceeding, the Commission is of the view that the combination of rates listed below appropriately recognizes costs and will provide acceptable levels of mark-up for Bell, BC TEL and TCI:
Master file:
Each residence listing $0.125
Each business listing $0.135
Update file:
Each residence listing $0.25
Each business listing $0.27
Set-up fee:
- Initial request for
Master file or Update
file or combination
thereof $500.00
- Subsequent request
for a service recon-
figuration $500.00
- Initial request for
customized features
(as discussed in Part D
below) $500.00
28.Finally, the Commission notes that, in Decision 95-3, the Commission stated as follows: "At this time, the Commission considers that final rates will be made effective back to the effective date of interim rates". In Decision 95-3, the Commission established a timetable where a telephone company would not have to incur any costs or file any proposed final tariff pages until the company received its first request for DFS. The telephone companies, other than Bell, were to make DFS available within 120 days of the first request. Coincident with availability of the service, the telephone companies were to file proposed tariff pages, setting out final rates for its provision. The telephone companies were also to file economic studies in support of their proposed rates. Consistent with the concept of ensuring appropriate cost recovery, the Commission finds that the above rates should be made final retroactive to the effective date of the interim rates for the reasons stated in Decision 95-3.
PART D - Other Issues
29.Parties submitted that the listings should be available on an NXX (the three digit telephone number prefix) basis. Parties further submitted that DFS users should not be obliged to purchase government listings unless they choose to do so. Parties submitted that DFS users should be permitted to acquire business and residential listings separately, if they so wish. White Directory et al. submitted that many publishers (notably, specialty publishers) may only have a need for business listings. Therefore, White Directory et al. submitted that DFS should provide sufficient flexibility for all of these configurations.
30.Bell stated that, in developing DFS, it constructed the service on an exchange basis as directed in Decision 95-3. Bell noted that offering DFS on an NXX basis presents certain difficulties related to complex listings and government listings. Bell replied that DFS could be reconfigured, at additional cost, to provide files of only residence, only business or only government listings, or on an NXX basis.
31.The Commission considers that, as presently configured, DFS is not a viable option for most independent neighbourhood directory publishers since all of the listings for a particular exchange must be purchased; that is, DFS listing requests cannot be limited to specified NXXs within an exchange. The Commission considers that DFS demand will be significantly enhanced, and opportunities for fair competition opened up, if DFS listings are made available on an NXX basis. Accordingly, the Commission directs that the telcos make listings available unbundled to an NXX level.
32.The Commission also considers that DFS users should not be obliged to purchase government listings unless they choose to do so. With respect to a split between business and residence listings, the Commission is of the view that allowing DFS customers such a choice would increase demand for the service and provide benefits to competitors and to directory users. Accordingly, the Commission directs that the telcos make listings available such that the subscription to government, business or residence listings is at the option of the DFS customer.
33.As there is a cost to customizing the DFS to a particular customer's requirements, the Commission directs that an extra $500.00 set-up fee be introduced for this customization.
34.The Publishers stated that the existence or non-existence of copyright in DFS listing information is not an issue in this proceeding other than to the extent it impacts on the rates for the service.
35.Bell replied that DFS does not provide raw data, but rather a compilation and sorting of the listings, and that copyright therefore exists therein.
36.The Commission considers that this issue is not relevant to the proceeding. Regardless of whether copyright subsists in DFS listing information, such information is clearly commercially valuable, and the associated rates can be determined on the basis of causal costing principles with an appropriate mark-up.
37.Southam, Thomson and White Directory stated that negotiations with Bell have resulted in a mutually acceptable resolution of the data element issues that had remained outstanding at the conclusion of Decision 95-3. These parties submitted that BC TEL should be directed to provide the same listing information that Bell has agreed to provide in the Minutes and the Record Layout attached to Response to Interrogatory Bell(Publishers)17Mar97-18 DFS.
38.BC TEL stated that it has proposed to provide a certain level of supplementary information to facilitate competitive directory publishers' use of DFS. BC TEL submitted that it does not use the same systems and processes as Tele-Direct/Bell for directory publishing. Therefore, the additional elements identified through negotiations between Bell and White Directory have no bearing on what is or should be available in BC TEL's systems infrastructure. BC TEL was of the view that its DFS is fully compliant with the intent of Decision 95-3.
39.The Commission notes that Southam, Thomson and White Directory were the only parties to make this request. The Commission considers that the extra formatting requested by White Directory et al. could be added to the DFS products of BC TEL, TCI and the other telephone companies. The Commission is of the view that the telephone companies and the publishers should negotiate these additional formatting elements and that the telephone companies, other than Bell, should re-file, as appropriate, a proposed DFS.
40.With respect to the License Agreement, in its submission of 17 March 1997, Online noted that Bell is required to provide machine-readable files. Online went on to note that it was unable to locate equipment for rental that would read the tapes provided by Bell.
41.The Commission directs that the customer is to be provided, at the customer's choice, with DFS on either a mag tape or PC diskette medium.
42.With respect to the second paragraph of section 4 in the Bell Licensing Agreement, the Publishers submitted that the word "necessary" should be changed to the word "reasonable". The Publishers noted that Tele-Direct is under no such restrictions in its contract with Bell.
43.Bell replied that it had no objection to making such modification.
44.The Commission considers that changing the word "necessary" to "reasonable" would unacceptably lower the threshold of care which the licensee would have to observe, given the important privacy concerns at stake. Accordingly, the Commission denies the Publishers' proposal. Further, the telcos are directed to change the word "reasonable" in the second sentence of the same paragraph to the word "necessary" in their respective Licensing Agreements.
45.Online submitted that Bell has made the terms and conditions in the Licensing Agreement too one-sided in its benefit, especially with regard to the provision of electronic directories by DFS customers. Online raised a number of other concerns with respect to Bell's limitations of liability and the protection of its proprietary interest in DFS.
46.Bell replied that Article 16 of the Terms of Service applies to all tariffed services provided by the company and that it would be inappropriate to prevent Bell from relying on it. Bell noted that the License Agreement is a regulated contract and therefore Online could apply to the Commission prior to the expiration of a company-provided termination notice to request relief from the Commission.
47.The Commission considers that the terms and conditions proposed by the telcos are appropriate. The Commission will address on a case-by-case basis any complaints arising in the future regarding the ongoing implementation of the DFS terms and conditions.
48.CWTA was of the view that some arrangements for its members to provide DA service would require that DFS and mediated real-time access to directory information (also known as Electronic Directory Database Access or EDDA) work together. Accordingly, CWTA stated that DFS must be made available to all carriers who decide to offer DA services.
49.Cantel submitted that services such as EDDA and DFS must be available to all those wishing to provide DA services, including wireless carriers, interexchange carriers, local exchange carriers and service bureaux and call centre operators.
50.Cantel noted that DFS is designed primarily for directory publishers. Cantel stated that directory publishers require more sophisticated data than is required for DA services. As costs for the proposed DFS product will be higher as a result, Cantel submitted that DFS is an expensive method by which DA services can be offered. Cantel concluded that effective DA service competition will not be possible under the current tariff proposal. Cantel noted that the CRTC Interconnection Steering Committee (CISC) sub-working group for Operator Services and Directory Listings is exploring an alternative for DFS. Cantel argued that there is no justification for limiting access to this alternative to CLECs.
51.Cantel submitted that the frequency of updates (monthly) was established without consideration to the needs of competitive DA providers. Cantel stated that, in the U.S., the frequency of updates is identical to the frequency of the updates provided to the telephone companies themselves, in order to ensure parity among all competitors. In its comments, Cantel argued that the companies should be ordered to disclose the frequency by which updates are provided to themselves and to amend the DFS tariff to provide identical terms to DA service providers.
52.Cantel submitted that, in the short-term, it may only be possible to economically provide DA service in competition with the telephone companies by pooling the volumes of several carriers, which is ideally accomplished through a third party such as a service bureau. Accordingly, Cantel submitted that all restrictions on the resale and sharing of DFS should be removed, as long as DFS is being used to provide DA services. CWTA submitted that DFS should be made available in a manner that would allow third parties to offer DA services to one or more carriers.
53.The Commission notes that, pursuant to Decision 95-3, DFS was primarily intended to meet the requirements of directory publishers. However, DFS is now one of various alternative sources for directory listings that will be available to CLECs for the purpose of providing DA. The Commission considers that Cantel's request for access to alternatives to DFS is outside the scope of this proceeding.
54.The Commission notes that the telcos would be willing to consider additional changes to the DFS tariff that would allow its use for the provision of DA by wireless and interexchange carriers. The Commission directs the telcos to make the appropriate tariff changes to allow DFS to be used by wireless and interexchange carriers. However, for reasons discussed in the next paragraph, the Commission does not agree, at this time, with Cantel's view, in effect, that all those wishing to provide DA services, including service bureaux and call centre operators, should have direct access to DFS.
55.With regard to the possibility of DFS arrangements whereby third parties (service bureaux) provide DA services to a number of service providers, the Commission notes that no party put forward a specific arrangement to illustrate how such a bureau could be established without contravening the current tariff (in particular, the non-resale provision). Further, the Commission does not consider that it would be appropriate to remove or amend the current restriction on resale and sharing. The Commission is prepared to review the suitability of service bureaux arrangements in the future.
56.Finally, the Commission considers that the provision of update files on a monthly basis is appropriate at this time. While more frequent updates such as weekly updates could increase the take rate, it would also increase the cost of the service. It is not clear whether the resulting additional demand would recover the additional costs. In the circumstances, Cantel's request for more frequent updates is denied.
57.On 24 November 1997, Northwestel filed TN 643 with proposed final DFS rates and a proposed Licensing Agreement. Northwestel stated that it provided DFS to an independent telephone directory publisher for the first time on 13 August 1997. Northwestel submitted that the final rates should be made effective as of 13 August 1997. The proposed DFS rates were supported by an economic study, as required. On 21 January 1998, the Commission issued Telecom Order CRTC 98-25 granting interim approval to Northwestel's Licensing Agreement.
58.On 19 January 1998, NewTel filed TN 563 with proposed final DFS rates and a proposed Licensing Agreement. NewTel requested approval by 18 February 1998. The proposed DFS rates were supported by an economic study, as required. On 13 February 1998, the Commission issued Telecom Order CRTC 98-145 granting interim approval to NewTel's Licensing Agreement.
59.Future Technology Information Services Inc. (Future Tech) commented on NewTel TN 563, submitting that all of the written comments for the PN 97-4 proceeding, and in particular those by White Directory et al., should be included as evidence in support of its intervention against NewTel's proposed rate increases. Future Tech noted that both it and NewTel contend that the NewTel application is very similar to the Bell and BC TEL applications.
60.Future Tech also requested disclosure of all financial information filed by NewTel to support its proposed rates. Future Tech cited the precedent of similar economic information filed by Bell and BC TEL for which the Commission ordered disclosure in its letter of 7 April 1997 dealing with requests for disclosure in the PN 97-4 proceeding.
61.No comments were filed concerning Northwestel's DFS proposal. The Commission notes that toll competitors and local competitors have minimal, if any, activity in Northwestel's operating territory at this time. There is no indication that this will change in the near future. Having examined the costs furnished by Northwestel, the Commission concludes that no adjustments are required.
62.With respect to NewTel's application, the Commission notes that adjustments similar to those adopted for Bell, BC TEL and TCI would reduce the DFS rates proposed by NewTel, and may provide NewTel with an acceptable level of mark-up. Accordingly, NewTel is requested to provide its comments, by 24 August 1998, (1) as to whether the rate schedule listed at paragraph 27 is appropriate for NewTel in light of the Commission's findings in this decision, and (2) if NewTel does not consider the schedule appropriate to file any revisions to its proposed DFS rates necessary in order to make its proposal consistent with the Commission's findings in this decision.
63.The Commission further considers, consistent with the Commission's disclosure findings pursuant to PN 97-4, that NewTel should disclose section 4.2.3 (economic parameters) of the economic information it filed in confidence by 24 August 1998.
64.On 11 June 1998, NBTel filed TN 737 with proposed final DFS rates and proposed Licensing Agreement.
65.With respect to NBTel and the other telcos that were subject to Decision 95-3 or Order 96-1522, but have not yet had a customer request for DFS, the Commission requests that Island Tel, MT&T, NBTel and MTS file any revisions to their current interim DFS rates and tariffs, as appropriate, in light of the Commission's findings in this decision, by 24 August 1998.
66.The Commission also establishes the following procedure with respect to these other matters.
(a) Parties may file supplemental comments, serving copies on all other parties, by 8 September 1998.
(b) The telcos may file supplemental reply comments, serving copies on all other parties, by 22 September 1998.
67.All material to be filed or served pursuant to this determination by a specific date must be received, and not merely sent, by the date indicated.
68.In addition to hard copy filings, parties are encouraged to file with the Commission electronic versions of their submissions in accordance with the Commission's Interim Telecom Guidelines for the Handling of Machine-Readable Files, dated 30 November 1995. The Commission's Internet email address for electronically filed documents is public.telecom@crtc. Electronically filed documents can be accessed at the Commission's Internet site at
PART G - Conclusion
69.In light of the foregoing, the Commission orders that:
(1) the telcos are each directed to make listings available unbundled to an NXX level;
(2) the telcos are each directed to make listings available such that subscription to each of government, business or residence listings is at the option of the DFS customer;
(3) the extra formatting requested by White Directory et al. is to be negotiated between the publisher(s) making the request and BC TEL, TCI or other telephone company, as appropriate;
(4) the telcos are each directed to make the appropriate tariff changes to allow DFS to be used for the provision of DA by wireless and interexchange carriers;
(5) Bell, BC TEL and TCI are directed to issue tariff pages consistent with the findings in this Order within 15 days, with the final DFS rates as listed in paragraph 27;
(6) the rates in paragraph 27 are made final retroactive to the effective date of the interim rates;
(7) the Licensing Agreements filed by Bell, BC TEL, TCI, Northwestel and NewTel are granted final approval subject to the changes noted in this Order. Bell, BC TEL, TCI, Northwestel and NewTel are to provide a copy of their revised Licensing Agreements to the Commission by 24 August 1998;
(8) the tariff notices filed by Bell, BC TEL and TCI are approved with the changes noted above and elsewhere in this Order;
(9) Northwestel TN 643 is granted interim approval subject to the changes noted above and elsewhere in this Order, retroactive to the effective date of the interim rates.
Laura M. Talbot-Allan
Secretary General
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