ARCHIVED - Telecom Order CRTC 99-807
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Telecom Order |
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| Ottawa, 18 August 1999 | |
| Telecom Order CRTC 99-807 | |
| On 14 May 1999, Futureway Communications Inc. (Futureway) filed an application under Tariff Notice (TN) 1, amended by TN 1A dated 24 June 1999, for approval of its General Tariff (CRTC 21290). The application provided proposed General Tariff Terms and Conditions, as well as terms and conditions for the provision of Access Services for Interconnection with Local Exchange Carriers (LECs), Interexchange Service Providers (IXSPs) and Wireless Service Providers. On 21 May 1999, Futureway filed an application under TN 2 for approval of tariff revisions providing for the introduction of Basic Listing Interchange File (BLIF) service. | |
| File Nos.: Tariff Notices 1 and 2 | |
| 1.Comments were received on 14 June 1999 from Bell Canada (Bell) on behalf of itself, Island Telecom Inc., Maritime Tel & Tel Limited, MTS Communications Inc., NBTel Inc. and NewTel Communications Inc., and also from Call-Net Enterprises Inc. (Call-Net) on behalf of itself and Call-Net Communications Inc. | |
| 2.On 24 June 1999, in conjunction with TN 1A, Futureway filed reply comments addressing issues raised by Bell and Call-Net. Futureway noted that the amendments filed under TN 1A conformed to all of Bell's suggested changes except with respect to the following: unbundled loops, billing and collection, contribution exemptions and the provision of 9-1-1 service to end-customers. | |
| 3.Bell and Call-Net noted that Futureway's General Tariff does not contain terms or rates for the lease or resale of its local loops or for central office co-location. Bell and Call-Net submitted that this would be contrary to the Commission's expectations as referenced in its letter of 1 June 1999 entitled "Bell and Shaw's Part VII Applications for Access to Common Trenches at the Bayview Glen Phase 5 Development", in which the Commission stated: | |
| "Alternatively, Canadian carriers will be permitted to lease and resell Futureway's facilities or services to provide services to their customers. | |
| The Commission notes that if Futureway's terms and conditions of resale are unreasonable or discriminatory these carriers may pursue remedies under the Act to ensure that they can provide services to their consumers consistent with the Commission's policies. The lease of facilities by Futureway to other carriers will be subject to the Commission's powers over CLECs under sections 24, 25, 27, 29 and 31 of the Act, as applicable, pursuant to the Commission's findings in Decision 97-8." | |
| 4.Call-Net submitted that it is clear by these provisions and by the Commission's determinations in Local Competition, Telecom Decision CRTC 97-8, 1 May 1997 (Decision 97-8) that, if a LEC is to provide unbundled essential facilities and co-location, it must do so through tariffs. Call-Net submitted that the Commission should delay approving TN 1, even on an interim basis, until Futureway has adhered to the substance of its undertakings, as modified by the Commission, that it would file tariffs to provide unbundled local loop facilities and co-location. Call-Net submitted further that to allow otherwise would result in Futureway granting itself an undue preference contrary to subsection 27(2) of the Telecommunications Act (the Act) since it would be in a position to offer services to its customers while denying such opportunity to other carriers. Call-Net argued that this situation would also be contrary to the Commission's findings in Decision 97-8 with respect to ensuring end-user choice. | |
| 5.In its reply, Futureway noted that it undertook to furnish unbundled local loops in its pleadings in the trenching matter, Bell Canada vs. Metrus et al. Futureway stated that although the Commission in its determination on this matter did not require Futureway to provide unbundled local loops and could logically have done so as a component of its decision, Futureway fully intends to comply with its undertaking in the near future. | |
| 6.Futureway indicated that it had not included in its initial General Tariff filing any of the Intercarrier Services provisions associated with the requirements of an Incumbent Local Exchange Carrier (ILEC) in light of the fact that such provisions are not contemplated to be part of the requirements for initial Competitive Local Exchange Carrier (CLEC) certification set out in Decision 97-8. | |
| 7.Futureway noted that to date there has been no demonstrated interest on the part of any potential customer for unbundled local loops and that Bell has indicated that it fully intends to install facilities in Bayview Glen Phase 5. Futureway submitted that it would be onerous and premature to impose such a regulatory requirement upon Futureway at this time. Futureway reiterated its request to be in a legal position to turn up service on 1 August 1999. | |
| 8.In Decision 97-8 the Commission concluded that to be essential, a facility, function or service must meet all three of the following criteria: (1) it is monopoly controlled; (2) a CLEC requires it as an input to provide services; and (3) a CLEC cannot duplicate it economically or technically. | |
| 9.At paragraph 80 of the same decision, the Commission stated that it "...is satisfied that the CLECs' local exchange service facilities would rarely meet the test of essential facilities that the Commission has adopted above. By definition, such facilities would not be monopoly controlled, and the fact that other carriers would have similar facilities in place would demonstrate that such facilities could be technically or economically duplicated." Thus, the Commission concluded that there was no need to require mandatory unbundling of CLEC facilities. | |
| 10.The Commission considers that the determinations in its letter dated 1 June 1999 and Decision 97-8 do not specifically require Futureway to file tariffs for the provision of unbundled local loops and central office co-location. The Commission notes that in the record of the proceeding leading to the Commission's letter of 1 June 1999, Futureway stated that it will provide these facilities on reasonable, non-discriminatory terms. | |
| 11.In light of the above, the Commission denies Call-Net's request to defer ruling on Futureway's application pending an application for approval of tariffs for unbundled local loops and central office co-location. | |
| 12.Bell submitted that pursuant to Telecom Order CRTC 99-302 (Order 99-302), the definition of an Interexchange Carrier (IXC) should be amended. The Commission notes that in previous determinations it has agreed with several CLECs who submitted that the definition in Order 99-302 would incorrectly exclude ILECs from the application of the CLECs' tariffs and consequently proposed to retain their existing definition of an IXC. The Commission notes that Futureway's proposed definition is consistent with the existing definition in the CLECs' tariffs. | |
| 13.Bell noted that Futureway did not include any reference to billing and collection or casual calling in the Terms of Service section of the tariff. | |
| 14.Futureway proposed to address this matter in a subsequent tariff filing in the near future. The Commission notes that Futureway has implemented changes in TN 1A that address the provision of casual calling in relation to its Access Services Tariff for Interconnection with IXSPs. The Commission finds Futureway's proposal to file a tariff application relating to billing and collection service in the near future acceptable. | |
| 15.Bell submitted that Futureway has not included a reference to BLIF in TN 1. Bell requested that the Commission direct Futureway to file a BLIF tariff and make it available to LECs for the purpose of providing telephone directories and directory assistance service. | |
| 16.The Commission further notes that Futureway filed a BLIF tariff under TN 2 and included various minor revisions to the tariff in TN 1A. The Commission considers that the proposed tariff is consistent with other approved CLEC BLIF tariffs. | |
| 17.Bell submitted with respect to Termination of Traffic from Exchanges within the Local Calling Area, that until a final determination is made regarding the ILECs' transiting filings, Futureway should amend its tariffs. | |
| 18.The Commission notes that the wording suggested by Bell and adopted by Futureway would allow for the delivery of traffic from an exchange where Futureway does not have a point of interconnection using bill and keep trunks and that this is contrary to the determinations of Decision 97-8. The Commission considers that, pending a final determination with respect to traffic transiting, additional provisions are required to clarify (1) that both parties must agree as to the use of bill and keep trunks in the delivery of such traffic and (2) which party is responsible for costs when one-way trunks are used. | |
| 19.The Commission notes that Futureway removed provisions associated with the collection of contribution on line-side access on a per minute basis in TN 1A. The Commission considers that, consistent with its previous determinations, Futureway should reflect the appropriate provisions with respect to collection of contribution on a line-side basis. | |
| 20.Bell noted that the terms and conditions applying to an integrated operation of a LEC/IXC are not dealt with expressly in Decision 97-8. Bell requested that the Commission issue a directive specifying the terms and conditions to be included within a CLEC's tariff by which integrated competing carriers are to recover toll contribution from the interexchange services that they provide. Bell submitted that all CLECs which currently operate such integrated local/interexchange carriers or choose to so operate in the future should be required to file tariffs which reflect the Commission's directives. | |
| 21.The Commission notes that Futureway's tariffs contain provisions for the collection of contribution charges and exemptions from contribution charges that are identical in substance to those found in Bell's tariffs. The Commission considers that, with the change with respect to line-side access noted above, the terms and conditions relating to collection of contribution and contribution exemptions in Futureway's tariff are consistent with the Commission's determinations in Decision 97-8. However, to ensure clarity, the Commission considers that additional wording should be included specifying that Contribution Charges would be attributable to Futureway in relation to its interexchange traffic. | |
| 22.Bell submitted that Futureway's Metro Ontario 9-1-1 Emergency Response Service pertains to 9-1-1 service provided to end-customers and thus should be deleted from Futureway's tariff since the Commission forbore from regulating CLEC services provided to end-users. | |
| 23.Futureway replied that the proposed tariff provisions are included at this time to accord a legal underpinning to support 9-1-1 service, pending the signature of agreements between Futureway and the municipalities in which Futureway will offer service. Futureway noted that other CLECs have made use of such tariff provisions on an interim basis. | |
| 24.The Commission considers that the proposed 9-1-1 tariff provisions need not be deleted. | |
| 25.The Commission considers that, in addition to the above, various changes and/or corrections to Futureway's tariff are required to clarify various provisions and to ensure consistency with approved ILEC and CLEC tariffs. | |
| 26.In light of the foregoing, the Commission orders that: | |
| 1. The proposed tariffs are approved on an interim basis, with the following amendments: | |
| (a) In the Table of Contents on pages 2 and 3, replace Interexchange Carrier (IXC) with Interexchange Service Provider (IXSP). | |
| (b) In Item 101, amend the definition for ILEC as follows: "refers to a Canadian local exchange carrier which provided service on a monopoly basis prior to 1 May 1997." | |
| Add the following definition for Line-Side Access: "means any connecting arrangement provided by Futureway to an IXC over which PSTN dial tone is delivered, by means of an Interconnecting Circuit, enabling the IXC to access or egress Futureway's PSTN." | |
| (c) In Item 200 (b), replace the first paragraph with the following: | |
| "Where Futureway does not have a POI within the originating exchange of a local calling area, if both parties agree, LEC originated traffic can be delivered to Futureway in the terminating exchange via bill and keep trunks, otherwise separate one-way trunks will be used." | |
| Add the following text and rates after the second paragraph: | |
| "If one-way terminating trunks are used, the LEC is responsible for all costs associated with provisioning these trunks between itself and Futureway's POI, due to the unidirectional nature of the connection. In addition, the service charges and trunk termination charges specified below apply to one-way terminating trunks." | |
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Service Charges Order processing, each order: $206.00 Interconnection trunk activation or change, each trunk: $24.85 |
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Monthly Rates up to 24 trunks, each trunk: $11.60 up to 48 trunks, each trunk: $18.20 up to 72 trunks, each trunk $20.20 up to 96 trunks, each trunk $21.25 more than 96 trunks, each trunk $21.75 |
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| (d) In Item 300.3, renumber the first item as (a). | |
| (e) In Item 301.1 (e), delete the phrase "or by another designated member of the former Stentor group as determined by network design requirements". | |
| (f) In Item 305.1: | |
| i) add "and Line-Side Access" to the title; | |
| ii) in sub-item (a), add "or line-side access" after trunk-side access; | |
| iii) in sub-item (a) amend the last statement as follows: "When an interconnecting circuit is associated with trunk-side access, the Switching and Aggregation charge in Item 301.2 also applies in addition to the contribution charges specified above"; and | |
| iv) in sub-item (a) add the following note: "Where applicable, the contribution charges specified in 1(a) above will be attributed to Futureway." | |
| 2. Futureway is directed to file forthwith its PIC/CARE Handbook and BLIF agreement with the Commission for approval. | |
| 3. Futureway is to issue forthwith revised tariff pages incorporating the changes set out above. | |
| Secretary General | |
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This document is available in alternative format upon request and may also be viewed at the following Internet site: www.crtc.gc.ca
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| Dissenting Opinion by Commissioner Stuart Langford | |
| I disagree with the majority decision in this matter in so far as it deals with the issues of unbundling local loops and central office co-location. I would approve the request by Call-Net Enterprises Inc. (Call-Net) to defer ruling on the application by Futureway Communications Inc. (Futureway) until such a time as Futureway files an application for approval of tariffs for unbundled local loops and central office co-location. To do otherwise may be viewed as inconsistent with the spirit of the Commission's policies on local competition. Depending upon a number of uncertainties at this time, it could also result in Futureway enjoying a monopoly status in the community in question. | |
| Futureway is an affiliate of Metrus Development Inc. (Metrus), a real estate development company. Metrus is building a residential community of over 500 homes in the town of Richmond Hill, Ontario. In so doing, Metrus dug trenches for the purpose of burying, among other services, the wire and cable required to provide the residents of this new community with telephone and cable television services. Metrus permitted its affiliate, Futureway, to bury its wires and cables in these trenches but denied other wireline providers -- for example, Bell Canada (Bell) and Shaw Communications Inc. (Shaw) -- access to them. | |
| Bell and Shaw applied to the Commission for, along with other relief, a declaration that the exclusive access agreement between Metrus and Futureway constituted a violation of the Telecommunications Act (the Act) as well as the Commission's clear policies in support of facilities-based local competition, particularly those contained in Local Competition, Telecom Decision CRTC 97-8, 1 May, 1997 (Decision 97-8). In a letter dated June 1, 1999, the Commission by majority decision denied the Bell/Shaw applications. I dissented in that matter as I do in this. | |
| In my view, the exclusive access agreement between Metrus and Futureway constituted an undue preference contrary to subsection 27(2) of the Act. In its letter, the Commission, by majority decision, found otherwise. It detected no undue preference, noting that other Canadian carriers could gain access to the customers affected. In paragraph 36 of the June 1, 1999 letter, the majority said: "(other Canadian carriers will have the right to construct and operate facilities on the land that will become public property. Alternatively, Canadian carriers will be permitted to lease and resell Futureway's facilities or services to provide services to their customers." | |
| Having assured Futureway's competitors of their rights of access to the new market being developed by Metrus, the Commission stated in its June 1 letter: "(if Futureway's terms and conditions of resale are unreasonable or discriminatory these carriers may pursue remedies under the Act to ensure that they can provide services to their consumers consistent with the Commission's policies." The Commission also addressed the question of competitive access by way of leased facilities (the key issue underlying Call-Net's request) as follows: "The lease of facilities by Futureway to other carriers will be subject to the Commission's powers over CLECs under sections 24, 25, 27, 29 and 31 of the Act, as applicable, pursuant to the Commission's findings in Decision 97-8." | |
| In its submission Call-Net relies on this second statement by the Commission and, in particular the reference to the various sections of the Act under which relief can be sought: "As is clear by these provisions, in order for Futureway to provide unbundled essential facilities and co-location to other carriers, it must do so through a tariff." (letter of June 14, 1999 to the Commission). In essence, Call-Net seeks alternative access via Futureway's unbundled loops for itself and all other competitive carriers. Until Futureway files the terms of such access in a tariff, however, Call-Net's request for unbundled loops cannot be fulfilled. This is so despite the fact that on a number of occasions Futureway has clearly indicated that it would provide leased access to non-facilities-based competitors. | |
| The majority decision in this matter (paragraph 5) refers to Futureway's undertaking in the previous proceeding to furnish unbundled loops and to Futureway's restatement of that promise in this proceeding: "(Futureway fully intends to comply with its undertaking in the near future". In paragraph 10 of the majority decision, reference to that undertaking is again noted: "(Futureway stated that it will provide these facilities on reasonable, non-discriminatory terms." There is at least one earlier example of Futureway giving the impression that it would do nothing to hinder competitive access. | |
| In a letter dated October 15, 1998 it undertook to comply with Decision 97-8, the fundamental statement of principle and process underlying the Commission's local competition policy: "As required by Decision 97-8, Futureway Communications International Inc. hereby attests that it understands Decision 97-8 and that it will conform to the obligations set out therein prior to providing commercial services to the public." When, as Futureway has done, a party repeatedly states an intention to perform, it would seem eminently fair to expect it to do so. | |
| While Futureway has complied with the letter of Decision 97-8, in my view its actions fall considerably short of capturing the spirit of that document or of fulfilling its undertakings in a timely enough fashion to make them meaningful. As a result, unless this matter is deferred pending the filing of the tariffs Call-Net seeks, there may be no competition in this new community for some time to come. | |
| I am cognizant of the majority's reference (paragraph 7 of its decision) to Futureway's statement that there are indications that Bell "(fully intends to install facilities(" in the new community. It is far from clear, however, that Bell will be able to do so, to both conclude a trenching agreement with Richmond Hill and to negotiate easement agreements with new home owners after various lots are transferred to them from Metrus. It may be that this matter will be back before the Commission, perhaps several more times depending upon Bell's success or failure in bringing competitive facilities into the community and to various customers' doors and in doing so in a timely fashion. It may be, notwithstanding its statement in paragraph 80 of Decision 97-8, that though "it is satisfied that the CLECs' local exchange service facilities would rarely meet the test of essential facilities(", the Commission may yet find to its chagrin that Futureway is that rare exception. If Bell fails to install facilities in time or is blocked in its attempts to do so, Futureway's lack of tariffs for unbundled loops and co-location may yet result in a no-competition situation in the community in question. That is a risk I would not take. | |
| The alternative seems far more reasonable and prudent: grant Call-Net's request to defer ruling on Futureway's application pending an application for approval of tariffs for unbundled local loops and central office co-location. I dissent from the decision of the majority not to do so. |
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