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ARCHIVED - Costs Order CRTC 2000-2

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Costs Order CRTC 2000-2
Ottawa, 18 January 2000
In re: New Media – Telecom Public Notice CRTC 98-20
File No.: 8695-C12-03/98
Application for costs by the Public Interest Advocacy Centre and Action Réseau Consommateur (PIAC/ARC).
Background

1.

The Commission received an application from PIAC/ARC, dated 8 February 1999, for costs associated with its participation in the above-noted proceeding. In a letter to PIAC/ARC dated 11 February 1999, Commission staff noted that the Commission does not have the jurisdiction under the Broadcasting Act to make an award of costs in respect of proceedings conducted pursuant to that Act. PIAC/ARC were informed that the Commission could consequently entertain an application for an award of costs in the new media proceeding only to the extent that an intervener had made submissions pursuant to the Telecommunications Act. PIAC/ARC were therefore invited to refile their application to address this issue.

2.

PIAC/ARC refiled their application on 17 February 1999, and identified several issues they had discussed in their oral and written submissions in the new media proceeding, which in their view fell within the scope of the Telecommunications Act. PIAC/ARC proposed that AT&T Canada Long Distance Services Company [now AT&T Canada Corp.] (AT&T Canada), Call-Net Enterprises Inc./Sprint Canada Inc. (Call-Net), the Canadian Association of Internet Providers (CAIP), Stentor Resource Centre Inc. (Stentor), TCI Communications Inc. (TCI), and the Canadian Cable Television Association (CCTA) be the respondents for an award of costs in this application.

3.

The Commission received comments on the application from Bell Canada (Bell), on behalf of itself and Island Telecom Inc. (Island Telecom), MTS Communications Inc. (MTS), Maritime Tel & Tel Limited (MTT), MediaLinx Interactive Inc. (MediaLinx), NBTel Inc. (NBTel), NewTel Communications Inc. (NewTel), Northwestel Inc. (Northwestel), Québec-Téléphone and Saskatchewan Telecommunications (SaskTel) (collectively, "Bell et al."), TCI, and AT&T Canada.
Positions of parties

4.

Bell et al. argued that many of the issues set out in the public notices which initiated the proceeding were substantially related to the objectives of the Broadcasting Act. Bell et al. noted that any costs award would have to be restricted to matters to be determined pursuant to the Telecommunications Act, and questioned whether this was the type of proceeding for which awards of costs of the type contemplated in that Act would be appropriate. In the event that costs were to be awarded to PIAC/ARC, Bell et al. submitted that the costs should be apportioned among those parties who were interested in and affected by the telecommunications issues raised in the proceeding and who participated actively.

5.

AT&T Canada stated that it did not dispute PIAC/ARC's eligibility for an award of costs in this proceeding. AT&T Canada argued that any costs awarded should not be disproportionately allocated to telecommunications carriers. AT&T Canada noted that it had filed only two submissions in this proceeding, and that many of the issues considered in the proceeding, particularly those relating to broadcasting issues, were of limited interest to it. AT&T Canada submitted that a failure to consider the relative interests and participation levels of different parties in a combined telecommunications and broadcasting proceeding would be inequitable, and would serve as a significant disincentive to the participation of AT&T Canada and other carriers in similar future proceedings.

6.

TCI opposed PIAC/ARC's application. In its view, PIAC/ARC could not satisfy the criteria for an award of costs under subsection 44(1)(a) of the CRTC Telecommunications Rules of Procedure (the Rules), which requires that the intervener has, or is representative of a group or class of subscribers that has an interest in the outcome of the proceeding of such a nature that the intervener or group or class of subscribers will receive a benefit or suffer a detriment as a result of the order or decision resulting from the proceeding.

7.

TCI argued that PIAC/ARC's constituents would be neither harmed nor benefited by the outcome of what TELUS characterized as an "information gathering" proceeding. TCI submitted that PIAC/ARC failed to make any argument or provide evidence as to how their constituents would be affected by the outcome of the proceeding.

8.

TCI argued that an order of costs in this "information gathering" proceeding would create significant disincentives to future participation in similar proceedings. It submitted that an award for costs under the Broadcasting Act and related regulations is not possible. It was not clear to TCI in any event who should pay PIAC/ARC's costs.

9.

PIAC/ARC replied to the comments of AT&T Canada and TCI. With respect to AT&T Canada's comments, PIAC/ARC agreed that costs should be allocated in relation to the degree of interest of potential responding parties in the issues to be determined in the proceeding.

10.

With respect to TCI's comments, PIAC/ARC stated that the definition of benefit and detriment pursuant to subsection 44(1)(a) of the Rules has been interpreted broadly to include, for the purposes of costs awards, proceedings involving issues such as competition, policy and mechanisms of regulation. PIAC/ARC argued that the importance to consumers of the commercial potential of the new media technologies and the relationship of such services to cost, accessibility, and non-commercial and cultural interests throughout the telecommunications market is obvious. PIAC/ARC submitted that their application was made pursuant to the Telecommunications Act and the Rules, and not under the Broadcasting Act.

11.

In the view of PIAC/ARC, it was doubtful that any liability for costs would have been a deterrent to participate in this proceeding. PIAC/ARC added that it is incumbent on the Commission to determine the appropriate respondents for any costs award, inter alia on the basis of the significance of the interests of a respondent in the proceeding.
Commission determination
A. Eligibility for an award of costs

12.

In the view of the Commission, PIAC/ARC have met the three requirements of subsection 44(1) of the Rules, and are therefore eligible for an award of costs.

13.

The Commission notes in this regard that no party has disputed that PIAC/ARC contributed to a better understanding by the Commission of the issues relating to new media, or that they participated responsibly in the proceeding. In their submissions, PIAC/ARC discussed, among other things, the question of whether new media services are essential services, the issue of access to such services, and the possibility of a contribution regime under the Telecommunications Act to ensure access to Canadian content. The Commission is satisfied that PIAC/ARC contributed to the Commission's understanding of the issues and that they participated in a responsible way.

14.

The Commission is also satisfied that PIAC/ARC's constituents have an interest in the outcome of the proceeding of such a nature that they will receive a benefit or suffer a detriment as a result of the decision resulting from the proceeding.
B. Extent to which PIAC/ARC may receive costs in this proceeding

15.

As noted in the 11 February 1999 letter to PIAC/ARC, the Commission can entertain an application for an award of costs in the new media proceeding to the extent that an intervener has made submissions pursuant to the Telecommunications Act. It is therefore necessary to determine to what extent PIAC/ARC's submissions dealt with matters to be determined under the Telecommunications Act.

16.

A similar question arose in Re: Application by Bell Canada and TELUS Multimedia, a division of TELUS Cable Holdings Inc. under the Broadcasting Act and the Telecommunications Act for authority to conduct technical and market trials, Telecom Costs Order CRTC 97-15, 13 August 1997. The Consumers' Association of Canada (CAC) was awarded partial costs in that "converged" proceeding for its participation with respect to matters to be determined pursuant to the Telecommunications Act. While the Commission noted that CAC's intervention dealt mainly with issues to be determined pursuant to the Broadcasting Act, it determined that the issue of packaging of telecommunications and broadcasting services was one issue addressed by CAC for which costs were available.

17.

In the context of the above proceeding, it was possible to define with a certain amount of clarity the distinct issues discussed by the applicant and which Act applied to the determination of each issue. By contrast, one of the questions involved in the new media proceeding was which Act to apply to the issues, and how. In this context, the Commission considers that it is very difficult to extricate and itemize the issues raised by PIAC/ARC to be determined pursuant to the Telecommunications Act. In the view of the Commission, it is more appropriate in these circumstances to award partial costs on the basis of the percentage of PIAC/ARC's submissions which can be seen to deal with issues which fall within the scope of the Telecommunications Act.

18.

The Commission finds that PIAC/ARC's participation dealt primarily with matters more related to broadcasting than to telecommunications, such as the development and distribution of content. The Commission considers that an appropriate measurement of the extent to which PIAC/ARC dealt with issues related to telecommunications, such as the status of new media services as essential services, access, and an expansion of the meaning of "social" factors under section 7 of the Telecommunications Act, is 25% of their total submissions.

19.

The Commission considers that each of the respondents named by PIAC/ARC had a significant interest in the issues involved in this proceeding, and participated actively. On this basis, the Commission concludes that Bell et al., TCI, AT&T Canada, Call-Net, CAIP and CCTA are the appropriate respondents for costs.

20.

The Commission notes that this proceeding consisted of three phases of written comments, and an oral phase. Stentor/Bell et al., TCI, Call-Net, CAIP and CCTA made submissions in all four phases. AT&T Canada filed sumissions in the first two phases only. The Commission has accorded a lower proportion of costs to AT&T Canada in recognition of its comparatively lower level of participation.
Direction as to costs

21.

The application for an award of costs in respect of the above-mentioned proceeding is approved. Consistent with the reasons set out above, PIAC/ARC are hereby awarded costs in respect of its participation in matters to be determined pursuant to the Telecommunications Act, amounting to 25% of its total overall costs.

22.

The Commission directs that costs awarded to PIAC/ARC be paid by the following respondents, in the proportions indicated:
Bell, on behalf of itself and Island Telecom, MTS, MTT, MediaLinx, NBTel, NewTel, Northwestel, Québec-Téléphone
and SaskTel                             40%
TCI                                         13%
CAIP                                      13%
Call-Net                                  13%
CCTA                                     13%
AT&T                                      8%

23.

Costs awarded herein shall be subject to taxation in accordance with the CRTC Telecommunications Rules of Procedure.

24.

Costs awarded herein shall be taxed by Leanne Bennett.

25.

PIAC/ARC shall, within 30 days of the issue of this order, submit a bill of costs and an affidavit of disbursements directly to the Taxing Officer, serving a copy on each respondent.

26.

The respondents may, within two weeks of receipt of those documents, file comments directly with the Taxing Officer with respect to the costs claimed, serving a copy on PIAC/ARC.

27.

PIAC/ARC may, within two weeks of receipt of any comments by the respondents, file a reply to the respondents' comments, serving a copy on each of the respondents in question.

28.

All documents to be filed or served by a specific date must actually be received, and not merely sent, by that date.
Secretary General
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