ARCHIVED - Telecom Order CRTC 99-1113

Telecom Order CRTC 99-1113

Ottawa, 2 December 1999

File No.: 8662-V2-01/99

Summary

By letter dated 2 August 1999, Vidéotron Télécom ltée on behalf of itself and AT&T Canada Corp. (the applicants), filed applications requesting that the Commission a) review and vary and, b) stay that part of Telecom Order CRTC 99-434, 12 May 1999, (the order) that required competitors to serve on the relevant companies the list of specific routes that met the forbearance criterion established in the order.

The Commission denies the review and vary application and directs those competitors that filed information in confidence on or about 10 August 1999 and 1 October 1999 to serve it within three business days on the relevant companies as directed in the order and file such information with the Commission on the public record, within the same time frame.

It is not necessary to dispose of the stay application as it is moot.

Context

1. In the order, the Commission established the criterion for determining whether forbearance should be granted for High Capacity/Digital Data Services (DDS) interexchange private line (IXPL) services offered by the former Stentor-member companies on an IXPL route. The order was a result of the follow-up proceeding to Stentor Resource Centre Inc. – Forbearance from regulation of interexchange private line services, Telecom Decision CRTC 97-20, 18 December 1997, where the Commission determined that forbearance for IXPL services should be on a route specific basis.

2. The order directed all competitors to file by 10 August 1999 and thereafter, semi-annually on 1 October and 1 April, a report identifying all IXPL routes for which they offer or provide service that meets the criterion established in the order. The order also directed the competitors to serve a copy of the report on the relevant companies (in whose territory the identified route was located).

3. The applicants submitted that there was substantial doubt as to the correctness of this part of the order. Specifically, the applicants submitted that in requiring the competitors to provide the route information, the order established a new principle that is not desirable in a competitive environment and that it was important that no parties be granted an undue preference or advantage. The applicants submitted that the obvious solution was that the list of routes be provided solely to the Commission in confidence.

4. On 10 August 1999, Vidéotron Télécom ltée, AT&T Canada Corp., Call-Net Enterprises Inc. (Call-Net), MK Telecom Network Inc. and Fundy Cable Ltd./Ltée, filed in confidence with the Commission their lists of routes that met the criterion. Shaw FiberLink Ltd., however, filed its information on the public record.

5. London Telecom Network Inc., Call-Net and TELUS Communications Inc. (TELUS) supported the application while Bell Canada (Bell), on behalf of itself, Island Telecom Inc., Maritime Tel & Tel Limited, MTS Communications Inc., NBTel Inc. and NewTel Communications Inc., opposed it.

6. TELUS stated that it did not consider the receipt of competitive routing reports by the incumbents to be a critical part of the process established by the Commission in the order. TELUS stated that in fact it had argued in the proceeding leading to the order against the disclosure of similar information for the very reasons listed by the applicants. TELUS also noted Stentor's submission in that proceeding that network information should not normally be subject to regulatory oversight.

7. Call-Net submitted that it considers the information in the report to be a trade secret and that it is technical information that is consistently treated as confidential by Call-Net. Call-Net submitted that the information in question meets the test for confidential information set out in section 39 of the Telecommunications Act (the act). Call-Net also argued that there would be no public interest in disclosure of the information.

8. London Telecom Network Inc. submitted, among other things, that the information in the reports is highly sensitive and would likely give the incumbent local exchange carriers (ILECs) an unparalleled view of the make-up and operation of the competitive networks and submitted that competitors should be permitted to file the reports in confidence.

9. Bell disagreed that there is substantial doubt as to the correctness of the order. With regard to the applicants' submission that the requirement to serve the list on the relevant incumbents established a new principle, Bell submitted that there is nothing new in competitors being required to disclose that a carrier is active in a given market. Bell submitted that the incumbents are routinely required to disclose information of much greater commercial sensitivity than that contemplated by the order.

10. Bell also questioned the completeness of the record of competition in the IXPL market based on the 10 August 1999 reports. Bell noted that only four parties had filed reports while there were approximately 40 telecommunications carriers in addition to broadcasting distribution undertakings (BDUs) and their affiliates. Bell submitted that the Commission should direct all competitors to file reports even if the reports simply confirm that there are no routes that meet the Commission's criterion.

11. The Commission considers that, to the extent that harm is likely to be caused by disclosure of the information identified in the order, it is minimal. Further, the Commission considers that disclosure of this information is important to the integrity and efficient operation of the process established in the order. Accordingly, to the extent that there may be harm, the Commission considers that such harm is outweighed by the public interest in disclosure.

12. TELUS noted that in the proceeding leading to the order, Stentor had agreed that the information provided by competitors should remain confidential. However, the Commission notes that this position was taken in the context of Stentor's specific proposal in that proceeding that would have required competitors to submit very detailed information. By contrast, as previously noted, the information to be served on the relevant companies pursuant to the order is very general.

13. The Commission is not persuaded by Bell's request that all competitors should be required to file a report even if they have no routes that meet the criterion established in the order. The Commission notes that Bell's request is inconsistent with the plain wording of the order. The Commission further notes that, if relevant companies consider that there are routes that competitors failed to identify, it is open to the companies in question to apply for forbearance with respect to services offered or provided on such routes. The Commission notes that this was not a requirement of the order. The Commission notes Bell's observations that all the telecommunications carriers are listed on the CRTC website. It can be assumed that those who have not filed do not have routes that meet the criterion. In the Commission's view, there is no need for a "nil" report, as it would serve no purpose. If the incumbent companies are aware of any routes that have not been reported they can apply for forbearance on such routes.

14. The Commission denies the review and vary application and directs those competitors that filed information in confidence on or about 10 August 1999 and 1 October 1999 to serve it within three business days on the relevant companies as directed in the order and file such information with the Commission on the public record within the same time frame.

Secretary General

This document is available in alternative format upon request and may also be viewed at the following Internet site: www.crtc.gc.ca