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Order CRTC 2000-13
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Ottawa, 18 January 2000
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File Nos.: Stentor TN 485;
BC TEL TN 3637;
Bell TN 6022; NBTel TN 647;
MTS TNs 244 and 278; TCI TN 926;
TCEI TNs 15 and 55;
Québec-Téléphone TN 170;
Télébec TN 126
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Rates set for access to telephone companies' support structures
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This order provides for national rates, terms and conditions for access to incumbent telephone companies' poles and conduit by cable companies and telecommunications carriers. The CRTC also rules on issues of support structure capacity, application of construction standards, and the access approval process. This order follows previous Commission rulings made in Telecom Decision CRTC 95-13 and Telecom Order CRTC 96-1484. It also results from the Commission's consideration of the Joint Report presented to the Commission on 17 April 1997 by the incumbent telephone companies, the Canadian Cable Television Association (CCTA) and the Competitive Telecommunications Association (CTA). The report is the product of the participants' consultations on contentious issues mandated by the Commission in Order 96-1484.
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Introduction
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1.
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In Access to Telephone Company Support Structures, Telecom Decision CRTC 95-13, dated 22 June 1995 (Decision 95-13), the Commission established uniform rates for the use of poles, strand and conduit of TELUS Communications Inc. (TCI), BC TEL, Bell Canada (Bell), Island Telecom Inc. (Island Tel), Maritime Tel & Tel Limited, The New Brunswick Telephone Company, Limited (NBTel) (now NBTel Inc.), NewTel Communications Inc. and Northwestel Inc. The Commission directed these telephone companies to issue tariff pages implementing the Commission's determinations in Decision 95-13. In addition, the Commission directed TELUS Communications (Edmonton) Inc. (TCEI) (formerly Edmonton Communications Inc.) to provide any reasons why its support structure rates should not be the same as those established in Decision 95-13 for the other telephone companies. Similarly, the Commission directed MTS NetCom Inc. (MTS) (now MTS Communications Inc.), Québec-Téléphone and Télébec ltée (Télébec) to provide any reasons why the rates, terms and conditions established in Decision 95-13 should not apply to their support structure services.
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2.
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The Commission directed these telephone companies to issue revised tariff pages rather than file proposed tariff pages with the Commission for approval. TCI, unlike the other telephone companies, did not have tariffs setting out rates, terms and conditions for support structure services. TCI filed proposed tariff pages and a Support Structure Agreement (SSA) to which the Commission granted interim approval.
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3.
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TCEI filed proposed tariff pages under Tariff Notice (TN) 15, for the stated purpose of implementing the rates, and terms and conditions set out in Decision 95-13, to which the Commission granted interim approval.
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4.
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Subsequent to the telephone companies' issuance of revised tariff pages, the Commission invited comment on them from parties registered to the proceeding leading to Decision 95-13. At the end of this proceeding, the Commission issued Order 96-1484 on 18 December 1996. In the order, the Commission ordered specific changes to the tariffs where they contained anomalies or terms and conditions that did not conform to the Commission's directions in Decision 95-13. Pursuant to the order, MTS filed TN 244 on 17 January 1997.
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5.
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Decision 95-13 required Québec-Téléphone and Télébec to provide reasons why they should not be subject to all the terms and conditions, including rates, established in that decision. Both Québec-Téléphone and Télébec submitted that the determinations in Decision 95-13 should not apply in their territories. Both companies generally submitted that because of the large and rural nature of their operating territories, the requirements of Decision 95-13 would place an undue burden on their accounting and billing systems, and that the rates set out in Decision 95-13 would, if implemented, have a negative effect on their revenues. In support of its position, Télébec filed a comprehensive economic study on 28 June 1996.
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6.
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In Order 96-1484, the Commission found that the monthly pole rate of $0.80, mandated in Decision 95-13, would exceed the causal costs identified by Télébec. The Commission found that neither Québec-Téléphone nor Télébec had demonstrated that Decision 95-13 should not apply to them or that the implementation of Decision 95-13, in those territories, would result in an acceptable revenue impact. The Commission determined that the rates, terms and conditions established in Decision 95-13 should apply to both Québec-Téléphone and Télébec. In addition, the Commission determined that TCEI's approach of charging for pedestals and lamp standards bases was not justified. Subsequently, when TCEI filed TN 44 in which such charges were eliminated, the Commission granted final approval.
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7.
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Order 96-1484 prescribed a consultative process between Stentor, on behalf of the telephone companies as per paragraph 1, and Télébec, Québec-Téléphone and TCEI (collectively the telephone companies), and the CTA and the CCTA on behalf of cable company users of support structures. The process had been requested by the cable companies to arrive at uniform wording for tariffs nation-wide. The Commission stated its support for uniform tariffs and agreements for support structures the telephone companies provide and ordered the telephone companies to participate in the consultations. The Commission also directed the telephone companies to file within 120 days of the order, serving a copy on all interested parties, a Joint Report of those who participated in the negotiations referred to in paragraph 12 of the order, identifying the following:
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(a) the participants in the negotiations;
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(b) a general description of the process followed by the participants to reach an understanding;
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(c) the points on which all participants have agreed;
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(d) the points on which agreement was not reached;
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(e) a summary of the position of each participant with respect to the points which have not been agreed upon; and
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(f) an indication of whether an agreement would likely be achieved on most points which have not been agreed upon, if more time was available to negotiate and if so, how much more time would be required to reach such an agreement.
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8.
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The telephone companies filed the Joint Report on 17 April 1997. Subsequent to this, the telephone companies, under Stentor Tariff Notice 485, filed a national tariff and support structures agreement (SSA) on 4 June 1997 to give effect to the results of the consultations. On the same date, under TN 926, TCI filed its proposed tariff and SSA for the same purpose.
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9.
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Also filed were TCI TNs 926/A, TCEI TNs 55 and 55A and Québec-Téléphone TN 170. All contained proposed tariffs and SSAs very similar to Stentor TN 485's tariff and SSA.
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10.
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Pursuant to Order 96-1484, Télébec filed tariff pages under TNs 126/A. The Commission granted interim approval.
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Joint Report
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11.
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The telephone companies that participated in the Joint Report, included the former Stentor members (excluding Saskatchewan Telecommunications), TCI, TCEI, Québec-Téléphone and Télébec. Also participating were the CCTA and the CTA.
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12.
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The telephone companies developed a model tariff, a model SSA, and a model support structures operations guide (SSOG) as the bases for negotiation and provided these to the CCTA and the CTA on 24 January 1997. After an exchange of comments, the telephone companies revised the model tariff and SSA to take account of a number of comments that the CCTA and the CTA had provided.
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13.
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On 27 February 1997, the CCTA wrote to the Commission requesting the future attendance of a Commission observer at meetings. The basis for the CCTA's request was that the telephone companies and the CCTA/CTA were quite far apart on their approaches to support structures, and the CCTA felt that the presence of a Commission observer could be helpful. With the agreement of parties, a member of Commission staff did attend meetings to assist with issues such as process and background.
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14.
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In filing the Joint Report, the telephone companies stated that it included consultations and parties' positions on the model tariff and SSA up to and including the last meeting before the report was filed on 17 April.
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15.
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The telephone companies, TCI and Québec-Téléphone stated that their tariff filings reflected the consultation processes completed by the Joint Report. They stated that the tariff filings had been revised beyond the telephone companies' and TCI's positions in the Joint Report to reflect consultations at the meeting of 6 May 1997.
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Considerations of further process
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16.
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Subsequent to the filing of the proposed tariffs and SSAs, a number of parties suggested that approval of these would be premature without any opportunity to comment. The Commission is of the view that, given the number and extent of proceedings on support structures since 1992, in tandem with the Joint Report, the record is sufficient to reach conclusions on the outstanding issues.
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17.
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The positions of parties narrated in this order are those originally taken with regard to the model tariff and the model SSA updated to reflect changes in positions arising from the negotiations described above.
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Conclusions
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18.
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The Commission approves the proposed tariff and SSA filed under Stentor TN 485 subject to the amendments as set out below. All other proposed tariff provisions and SSA sections not specifically amended or denied by the Commission, as set out below, are approved as filed.
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19.
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The Commission directs that tariff pages and SSA pages be issued within 30 days, revised in accordance with the Commission's prescribed changes. The Commission approves TCI TNs 926 and 926A, TCEI TNs 55 and 55A and Québec-Téléphone TN 170 with the requirement that revised tariff pages be issued within 30 days, revised strictly in accordance with what the Commission has approved and prescribed pursuant to this order.
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20.
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The Commission directs that Télébec issue tariff and SSA pages, within 30 days, that are in accordance with Decision 95-13, as amended by Order 96-1484 and this order.
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21.
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The Commission approves the following TNs for withdrawal of support structure tariffs effective coincident with the date at which the tariff pages issued pursuant to this order will come into effect:
Bell TN 6022
BC TEL TN 3637
NBTel TN 647
MTS TN 278
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22.
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The Commission approves the proposed tariff and SSA, amended in accordance with the Commission's prescribed wording as set out below. In the interest of simplicity, the Commission has summarized the tariff provisions and SSA sections in this order, except where the Commission has determined it to be appropriate to reproduce the proposed wording in full.
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National Services Tariff Item 901.2 - Definitions:
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Conduit
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23.
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The proposed definition excludes manholes, central office vaults, or other access points or conduit entering the central office vault. The CCTA argued it should include connecting to and going through a central office (CO) to maximize efficiency of cable routing.
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24.
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The Commission considers that with the CCTA's approach, the CO vault's efficiency could be adversely affected and therefore, it does not accept the CCTA's proposal.
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Manhole
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25.
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This is an underground chamber providing access to conduit, excluding CO vaults. The CCTA wants to include CO vaults in the manhole definition to permit a licensee's cable to transit a CO vault. As outlined in paragraph 24, the Commission considers that with the CCTA's approach, the CO vault's efficiency could be adversely affected.
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Duly authorized representative
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26.
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This definition provides that a company will deem a licensee's employee, agent, (etc.) who signs, consents, or authorizes on the licensee's behalf to have been authorized by the licensee.
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27.
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The CCTA said that this definition should be deleted because the companies can rely on contract common law to establish who binds a licensee. In the CCTA's view, the companies should not be able to deem who is authorized by the licensee. The companies answered that, if the licensee wants expeditious authorization, the companies must be able to rely on the representations of the licensee's personnel.
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28.
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In the Commission's view, the proposed definition eliminates confusion, allowing authorization to proceed faster. If it is left to common law, there is a greater likelihood that the companies will refrain from recognizing a licensee's representative until a person clearly authorized by the licensee binds the licensee, in each case.
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Spare capacity
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29.
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Spare capacity is the difference between unused capacity and the capacity the company needs to meet anticipated future service requirements.
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30.
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Unused capacity is the difference between:
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(a) support structure capacity based on design limitations; and
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(b) the sum of capacity used by the company to meet current company needs, and capacity currently allocated to licensee(s).
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31.
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The CCTA stated that letting the companies reserve capacity for themselves for future use amounts to priority access and would be discriminatory in a competitive market. The companies would have no incentive to manage support structures efficiently. Potential licensees would have to build their own support structures, however, municipalities might not let them, given disruption, etc. The CTA stated that such priority access for the telephone companies, and the consequence to availability of spare capacity, are not appropriate in the current competitive context. The CTA added that the Commission's contention as set out in Decision 95-13, that minimizing the number of support structures is in the public interest, further erodes support for the companies' priority access.
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32.
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The companies stated that the definition reflects the Commission's conclusions in previous decisions that a company is permitted priority access to meet its current and anticipated future service requirements. Access by others has been costed and rated on this basis.
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33.
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The Commission notes that in Decision 95-13, and in Order 96-1484, the companies' right to priority access is recognized to include reserving capacity for anticipated future requirements. The Commission notes, however, the CCTA's and the CTA's points particularly with respect to changed competitive circumstances since 1995. The Commission's finding in favour of minimizing the number of support structures is also crucial. Furthermore, the Commission notes that there have been competitive disputes concerning support structures access, and the legitimacy of claims of lack of spare capacity. Where disputes arise over whether spare capacity is available, therefore, the Commission may place the onus on the companies to justify their current and anticipated requirements, where they state they have no spare capacity on any particular support structures.
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Support structures
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34.
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They are defined as the supporting structures (but excluding CO vaults and controlled environmental vaults) which a company owns or has the right to grant permits for.
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35.
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The CCTA said that this should change to include CO vaults so a licensee's cable may transit the CO in a conduit arrangement.
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36.
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The Commission considers that costing and rating of support structures was established based on the current definition. There is no evidence that CO vaults were considered when the Commission reached its findings with regard to costs and rates. Therefore, changing the definition to include CO vaults in the definition is beyond the scope of this proceeding.
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Terms and conditions of service
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37.
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National Services Tariff Item 901.3(a) states that the licensee must enter into a SSA with the company, the form of which has been approved by the Commission and together with this tariff item govern the terms of the support structure service. Where there is conflict with the SSA, the tariff prevails unless the SSA specifically says otherwise. In this regard, the tariff provides as follows:
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"Except where otherwise specifically provided in [the SSA], should there be any contradiction, conflict or variance between the provisions of [the SSA] and the provisions of this Tariff item, the provisions of this Tariff item shall prevail."
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38.
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The CCTA said that where there is conflict, the tariff should always prevail, as it is the primary statement of terms and conditions of service. CCTA stated that the SSA can still prevail over the companies' Terms of Service as appropriate, e.g., regarding termination of service.
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39.
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The Commission agrees with the CCTA that National Services Tariff Item 901 which covers support structures, together with the SSA, constitute the terms and conditions of support structure service. The Commission also notes that the companies' Terms of Service are part of their general tariffs. For the sake of clarity, the Commission is of the view that 901.3(a) should be changed to indicate that where the general tariff, including the Terms of Service, conflicts with the specific tariff item or the SSA, the specific terms and conditions of support structure service will prevail.
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40.
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The Commission prescribes eliminating the sentence that commences, "Except where otherwise specifically provided in the SSA." and replacing it with: "The tariff item on support structures shall prevail in all cases where it conflicts directly with the SSA. Where the General Tariff including the Terms of Service, conflicts directly with the specific tariff item on support structures or the SSA, the aforementioned tariff item or the SSA as applicable, shall prevail."
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41.
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National Services Tariff Item 901.3(c) provides that the licensee may not assign, sublease, sublet or otherwise transfer its support structure access to third parties without the companies' prior written consent, which may not be unreasonably withheld.
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42.
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The CCTA and the CTA were concerned that such wording is broad enough to include "condominium" facilities arrangements as assignments. They proposed additional wording saying, effectively, that these tariff restrictions will not prevent the licensee from sharing its facilities with a third party by permitting the third party some form of ownership interest in the licensee's facilities placed on a company's support structures, as long as the licensee remains responsible for the right of access to the support structures bearing these facilities. The companies noted the Commission's findings that prohibit a support structure user's transfer of rights of access to the support structures because the right could limit orderly access to spare capacity. The companies agreed that licensees may provide services to third parties using the licensee's own facilities. But the companies said that allowing transfer of facilities ownership or "some forms of ownership" to third parties could draw them into licensee/third party disputes over the support structures bearing the facilities for which ownership has been transferred.
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43.
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The Commission notes that in Order 96-1484 the Commission found against "a right in favour of support structure users to sub-let, sub-license, or otherwise transfer access to support structures.." However, the Commission considers that as long as the licensee remains clearly responsible for a third party's compliance with the terms and conditions of support structures access, the licensee's sharing of ownership of its attached facilities should not result in the involvement of the companies in licensee/third-party disputes. Accordingly, the Commission directs that the following be added to the proposed item:
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The licensee may share ownership of its facilities with a third party. In all such cases, the licensee remains fully responsible for compliance with the rates, terms and conditions of support structures access as if it remained sole owner of the facilities for which it shares an ownership interest.
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44.
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National Services Tariff Item 901.3(d) provides that the companies always have priority access to support structures to meet current and anticipated future service requirements.
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45.
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The CCTA requested deletion of this provision. In a competitive environment, the companies should not be entitled to priority access to support structures. Further, access issues are covered in the definition of spare capacity. The Commission disagrees with the CCTA. As noted in its findings on the item on spare capacity, where disputes arise, the Commission will require the companies to objectively justify their current and anticipated future requirements.
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46.
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National Services Tariff Item 901.3(e) indicates that licensees using or applying for access to support structures must possess the required authorizations from all authorities having jurisdiction and must give a company documentary evidence on request.
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47.
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The CCTA submitted that a licensee could suffer disadvantage if an authority claims jurisdiction that the company itself does not accept. The association advocated that the licensee is responsible for obtaining authorizations validly required by governmental authorities having jurisdiction over matters affecting access to and use of support structures by the licensee.
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48.
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The Commission considers that use of the term "validly" could give rise to disputes on the meaning of the term. Further, the Commission is of the view that it is appropriate for a licensee to ensure that it obtains authorizations to protect the support structures owner from legal risk.
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49.
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National Services Tariff Item 901.3(f) provides that the licensee must obtain and maintain any rights-of-way or consents that the SSA specifies regarding the licensee's facilities and provide written evidence of these at the company's request.
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50.
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The CCTA argued that such issues are between the property owner and the licensee wishing to be present on the property. The company should not be involved except where it can grant the access to a right-of-way, whereupon it should be obliged to do so.
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51.
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Noting that the company owns support structures and is thereby obliged to discharge related obligations, the Commission is of the view that the company is entitled to be able to assure itself that it is protected regarding its relationships with property owners and public authorities. Further, in the Commission's view, a licensee's obligation to provide written evidence on a company's request is not unduly onerous.
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52.
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National Services Tariff Item 901.3(g) provides that nothing within the tariff item limits, restricts or prohibits the company from honouring existing or entering into future joint-use or joint ownership agreements regarding support structures used or offered under this tariff item and the SSA.
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53.
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The CCTA found this acceptable with the proviso that such agreements would not prejudice a licensee's rights after it has been given access to support structures.
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54.
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The companies submitted that the Commission encourages joint use and joint ownership. Where these are used, the companies try to protect their own and the licensee's facilities but they should not have to incur costs to guarantee the licensee's facilities.
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55.
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The Commission is of the view that the licensee's rights to access, once granted, should be protected within reason, particularly where a company enters into such an agreement after granting rights to a licensee. However, where a company is forced by a property owner to move support structures, it should not have to bear the costs of moving licensees' facilities. The Commission directs the addition to this item of the following:
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. provided that the existing rights of a licensee shall not be prejudiced by a joint-use or joint-ownership agreement entered into by the company after the licensee has been granted access to support structures. The one exception to this provision is a circumstance in which the company is forced to move a support structure by a property owner, in which case a licensee must move its facilities at its own expense.
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56.
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National Services Tariff Items 901.3(h), (i) and (j) provide as follows:
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(h) The company sets and enforces its construction standards based on safety and technical requirements for support structures it owns or controls provided that the standards do not unreasonably impede a licensee's or joint user's access.
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(i) The licensee's types of facilities using support structures must conform to the standards and requirements specified in the construction standards requirements as modified or replaced by the company from time to time.
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(j) Licensee-owned conduit connecting to company support structures must conform to Construction Standards requirements. The licensee may establish conduit connections only to access its facilities that are on company support structures.
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57.
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The CCTA said that the restriction on conduit connections should be dropped because it is overly restrictive.
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58.
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Stating that these provisions are needed to protect support structures and all users' personnel and facilities, the companies submitted that these conform with the Commission's finding in Decision 95-13 with respect to construction standards.
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59.
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The Commission agrees that these items conform to Decision 95-13's findings as to the company's right to set and enforce construction safety and technical standards that do not unreasonably impede access by cable companies and other telecommunications carriers.
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60.
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National Services Tariff Item 901.3(l) provides as follows:
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On-going inspections for conformance with the terms and conditions of support structure service will be conducted by the company at its own cost. When non-conformance with the terms and conditions of Support Structure Service is found, the company will notify the Licensee of the defects and charge the Licensee based on the expense incurred for the inspection. The Licensee will correct such defects within a maximum of thirty (30) calendar days, unless otherwise specified by the company. The Licensee will notify the company within seven (7) calendar days of the defect being corrected. After the specified notification period expires, the company may re-inspect the Licensee's Facilities and, if the defects have not been corrected to the company's reasonable satisfaction, the company may have such defects corrected or may remove the Licensee's Facilities and terminate any associated Permit for the affected Facilities. Charges based on expense incurred will apply.
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61.
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The Commission considers that the support structure owners' right regarding construction standards permits the companies to take measures to ensure that support structure users are complying with such standards, and with terms and conditions set out in approved tariffs.
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62.
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As far as the time limit aspect is concerned, the Commission notes that National Services Tariff Item 901.3(n) provides for a prior notice period of at least 180 days if the company plans to abandon or remove support structures that a licensee is using. Further, the licensee has the first 90 days to decide whether to buy the support structure. Thus, the licensee has at least 90 days, after deciding not to buy the support structure, to complete the work it must do. The Commission is of the view that there is no reason why the company should not give the licensee a minimum of 90 days to perform the work in this case as well.
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63.
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The Commission is of the view that certain proposed measures are too extreme; namely, those that permit the company the discretion to decide whether to correct a defect at a licensee's expense or to disconnect the licensee's facilities altogether from the company's support structures. The Commission finds it appropriate that when a company re-inspects a licensee's facilities and finds that defects have not been corrected to its reasonable satisfaction, the company be entitled to correct the defects itself and charge in accordance with the tariff item. However, the company should not have the discretion to disconnect the licensee's facilities from the support structures in question.
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64.
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The Commission directs that this item be amended as follows:
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(a) replace "The Licensee will correct such defects within a maximum of thirty (30) calendar days, unless otherwise specified by the company" with " The Licensee will correct such defects within a time period specified by the company, to be no less than 90 days following written notification of the licensee of the defects"; and
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(b) include, after the words "or may remove the Licensee's Facilities and terminate any associated Permit for the affected Facilities," the words "provided that the Licensee has given written notice that it prefers removal to correction."
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65.
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Services Tariff Item 901.3(n) provides as follows:
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If the company decides to remove or abandon any Support Structures used by a Licensee(s), the company shall give the Licensee at least one hundred and eighty (180) days prior notice. Where the company has the authority to do so, it shall, at the same time, notify the Licensee(s) that such Support Structures may be purchased at fair market value. The Licensee(s) shall have the first ninety (90) days of the notice period to decide whether to purchase such Support Structures.
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66.
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The CCTA commented that:
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(a) a company should give two years prior notice of removal except where a third party requires abandonment and reduces prior notice;
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(b) the pricing basis of support structures should be pre-determined and referenced in the tariff;
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(c) where a third party requires support structure removal, the licensee should have right to challenge the third party's legal right to require removal, and the company should take reasonable steps to facilitate the challenge;
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(d) where the company is reimbursed by a third party requiring the removal of the structures, it should reimburse the licensee for the relocation of its facilities;
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(e) the company should notify the licensee of a third party's relocation request within one week of receipt; otherwise the company should be responsible for all costs that the licensee incurs for relocation of its facilities;
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(f) where neither the licensee nor anyone else buys the support structure, the licensee will remove its facilities within the notice period and tell the company when removal is complete;
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(g) where the licensee fails to remove its facilities, the company can impose a charge based on work performed and charged at the company's tariff rate; and
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(h) the company should give the licensee details of work performed, including time spent and applicable hourly (tariff) rates.
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67.
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The companies commented that pricing at fair market value is appropriate and that the third-party issue is not relevant as this item addresses only situations that the company initiates itself. The companies argued that, as a matter of principle, where a licensee thinks a third party should reimburse it, the licensee, and not the company should go after the third party.
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68.
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In the proposed tariff item, the prior notice period is at least 180 days. The Commission notes that in Re: Notification of Network Changes, Terminal-to-Network Interface, Disclosure Requirement and Procedures for the Negotiation and Filing of Service Arrangements, Telecom Letter Decision CRTC 94-11 (Letter Decision 94-11), the Commission required that a telephone company give prior notice of network changes at the time it decides to proceed or six months (180 days) before the change, whichever is earlier. In the Commission's view, the same approach is reasonable in this case.
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69.
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With regard to pricing, the Commission is of the view that fair market value is appropriate. The Commission notes that it is open to any party not satisfied with the proposed fair market value price to bring it before the Commission. The commission considers that the CCTA's proposal regarding company reimbursement to a licensee would impose an onerous a burden on the company. The Commission agrees with the companies that, if a licensee considers that a third party should reimburse it, the licensee should pursue the matter directly.
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70.
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The Commission directs that the first sentence be amended as follows:
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If the company decides to remove or abandon any support structures used by a licensee(s), the company shall give the licensee prior notice at the time that the company decides to proceed or at least 180 days before the event whichever is the earlier date.
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71.
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National Services Tariff Item 901.3(o) provides:
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Where work on support structures is needed for service restoration, the company and the licensee agree to work jointly to restore their respective services. Where they cannot restore services jointly, they will identify their priority services and agree to a restoration sequence. If they cannot agree, the company has priority.
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72.
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The CCTA wanted priority given to fibre optic cable as it has more capacity than coaxial or copper plant. The companies' view is that priority should be based on traffic type, not facility type. The Commission considers that priority of restoration of services should be based upon traffic type rather than facility type.
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Access approval requirements
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73.
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National Services Tariff Item 901.4(a) provides:
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The licensee must apply for each use of, or connections to, support structures for additions, rearrangements, transfers, replacements and removals of the licensee's facilities on or in the company's support structures for which rental provided in tariff and/or which affects consumption of support structure capacity. No applications are needed for routine maintenance that does not affect location on/in or capacity of support structures. Each application will be considered first come first served, without undue preference, based on the receipt date by the company.
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74.
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The same tariff item states that the company's response times for approval or denial of applications will be:
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(a) within 15 days for 20 or less poles or five or fewer manholes.
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(b) within 30 days for 20 to 49 poles or 5 to 14 manholes.
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(c) determined based on the specifics of an application
· exceeding quantities above;
· for support structures in remote areas;
· affected by unusual conditions.
|
|
75.
|
The CCTA said that the tariff should include a number of changes including the following:
|
|
(a) require an application only where there will be a new rental charge or the addition of a second strand to a pole;
|
|
(b) impose time limits on the companies to process applications;
|
|
(c) require two scenarios for time limits applicable to the company's application processing:
· the customer has done search work, or
· the company must do search work;
|
|
(d) require deemed approval of an application not processed within required time period to prevent anti-competitive delays.
|
|
76.
|
According to the companies, the application process forces the licensee to identify any use of, or connection to, the company support structure, thus enabling the company to manage remaining capacity. This approach ensures that no unauthorized attachments are made and provides all licensees with fair and equitable access.
|
|
77.
|
The Commission does not agree with the CCTA's view that would require an application only when there was a new charge or a second strand. The onus is on the support structures owner to manage the structures for itself and other users. In the Commission's view, the company must be aware of rearrangements, etc., through the application process since rearrangements may affect capacity. Finally, applications will be considered on a first-come first-served basis based on the date of an application's receipt by the company.
|
|
78.
|
With respect to the proposed deemed approval where the application is not processed within the required time period, the Commission notes that there may be several potential causes for delays. Where a company is the cause of the delay in processing the application within the required time, this may constitute a violation of the terms of the tariff. In appropriate circumstances, a licensee may seek corrective measures by applying to the Commission.
|
|
79.
|
National Services Tariff Item 901.4(c) specifies the engineering documentation the licensee must provide, on a company's request, for aerial structures: two sets of plant drawings, to scale, with proposed additions, etc.; and for underground structures: two sets of plans showing proposed routes.
|
|
80.
|
The CCTA asked that plans be proportional rather than to scale. The companies noted they have been to scale for many years. The Commission sees no reason that this should not continue.
|
|
81.
|
National Services Tariff Item 901.4(d) specifies that the licensee shall pay a search charge whether an application is accepted or rejected by the company due to lack of spare capacity or withdrawn by the licensee.
|
|
82.
|
The CCTA submitted that in their 1994 submission filed pursuant to Telecom Public Notice CRTC 93-50 (PN 93-50), the companies listed a number of administrative activities associated with access to support structures to be covered by the support structure rental charge.The CCTA submitted that, in light of this, no search charges are needed except where a field search is needed. The CCTA said the item should be reworded to specify that a search charge applies only where a company must do a field search for spare capacity; a company will do a field search only where the licensee has not provided the needed information as part of its application; and the search charge will be based on actual field search work done and charged at tariff rates.
|
|
83.
|
The companies stated that they incur costs for searches done regardless of the application's outcome. They stated that Order 96-1484 specifies:
|
|
The monthly rates for access to telephone company support structures established in Decision 95-13 are not inclusive of any related non-recurring administrative, application or processing fees.
|
|
84.
|
The Commission notes that the list of activities filed by the companies pursuant to PN 93-50, referred to by the CCTA, was submitted in the context of the companies' proposed costing formula that the Commission rejected. The Commission agrees with the companies that Order 96-1484 stated clearly that monthly rates do not include non-recurring application fees. The Commission is of the view that companies should recover costs for searches associated with all applications, whether approved or denied.
|
|
85.
|
National Services Tariff Item 901.4(h) provides:
|
|
The Licensee is permitted to construct, remove, maintain and operate its Facilities on, in or in proximity to the company's Support Structures, using the Licensee's own labour force or any person, firm, partnership or corporation (hereinafter "contractor"), subject to the terms and conditions contained in this Tariff item, the SSA and the Construction Standards. The Licensee shall provide the name and the type of work function to be performed by each contractor.
|
|
The Licensee shall provide the company with a list of contractors who are to carry out work under this Tariff item, on the Licensee's behalf. Within fifteen (15) calendar days of receiving such list, the company may notify the Licensee that a contractor on the list is unacceptable based on the company's reasonable objective assessment. All remaining contractors on the list may perform work on the Licensee's behalf, without further approval, until such time as the company gives the Licensee fifteen (15) calendar days notice that a contractor on the list is unacceptable.
|
|
86.
|
In Order 96-1484, the Commission stated that the licensee's prior notification to the company is appropriate. In that order, the Commission also stated that a requirement for prior approval by a company would not be appropriate. In the Commission's view, the companies' proposed provision for disallowing a labour force based on "reasonable, objective assessment" amounts to a form of prior approval. Therefore the Commission directs the companies to eliminate the second paragraph except for the first sentence of that paragraph.
|
|
87.
|
National Services Tariff Item 901.4(i) provides:
|
|
In the event that a Licensee wishes to use a contractor not on the list, the Licensee must notify the company in writing, at least twenty (20) calendar days in advance of such contractor commencing work. Within fifteen (15) calendar days of receiving such notice, the company may, based on its reasonable assessment, notify the Licensee that the contractor is unacceptable and the work cannot be performed on that basis.
|
|
88.
|
For the reasons outlined above, the Commission directs that the second sentence be eliminated from the proposed item.
|
|
89.
|
National Services Tariff Item 901.4(l) provides:
|
|
A Licensee has 60 days from receipt of a permit to start work pursuant to the permit. Failure results in revoking of the permit. If the Licensee cannot reasonably start within the 60 days it may ask in writing for an extension before the 60 days deadline. The basis for extension must be beyond the Licensee's control. Both parties must agree on the length of the extension. If the Licensee does not start installation of facilities within the extension period the permit is deemed to be revoked.
|
|
90.
|
The CCTA argued that failure to start work should matter only if there is no more spare capacity on the support structure and there is a third party requiring access. The Commission disagrees with the CCTA that, in effect, the applicant should not be subject to a deadline to start facilities installation until or unless a third party has filed an application. In such an event, applicants could habitually refrain from starting work indefinitely until third parties filed applications. This could have the effect of adding uncertainty to the process for third party applicants, and would allow a further 60 days to cover the extension to the original applicant following notification of the third party application.
|
|
91.
|
National Services Tariff Item 901.4(m) provides:
|
|
The company does not guarantee that any Conduit assigned in the Permit is in good condition and unobstructed. The company will determine who will perform all work on such Conduit. All work and material required to make such Conduit useable by the Licensee will be at the Licensee's expense. The Licensee is also responsible for any backfilling, repaving, and restoration of landscaping, curb, gutter and sidewalk expenses.
|
|
92.
|
According to the CCTA, the licensee should be responsible for make-ready work, but not structural restoration as the licensee is charged for this in the rate it pays. The companies said that the sole purpose of this provision is to make the conduit useable for the licensee. The approved support structure rates do not cover costs to make conduit useable.
|
|
93.
|
The Commission notes the companies' point that rates do not cover restoration costs. Further, the Commission notes that each company is obliged to provide support structures at rates that are not market-based. Accordingly, the Commission's view is that the licensee should bear the expense. However, the Commission is of the view that the licensee should be able to determine who does the work. The Commission directs that the first and second sentences in 901.4(m) be changed as follows:
|
|
Where work is required to restore a conduit, assigned in a permit, to a useable condition, the licensee may determine who will do the work, subject to the requirements of other related terms and conditions of the tariff on support structure service. The licensee will advise the company of work completion within 10 days. The company will have 20 days from the date of this notice to inspect and advise the licensee of any further work required.
|
|
94.
|
National Services Tariff Item 901.4(p) provides as follows:
|
|
When the Licensee is unable to attach the subscriber drop wire in compliance with the Construction Standards, the Licensee must ask the company to do make-ready work. On completion, Licensee will be told and can proceed to attach.
|
|
95.
|
The CCTA argued that the licensee should be allowed to do the make-ready work or ask the company to do it at the licensee's expense in accordance with tariff charges. The Commission notes that, pursuant to proposed National Services Tariff Item 901.5(a)(4), make-ready charges would be based on costs incurred and, where applicable, using hourly rates in the company tariff, for materials used and work performed. The Commission notes that the companies, other than BC TEL, are prepared to evaluate specific proposals from the associations regarding performance by licensees of make-ready work. The Commission directs the addition of the following:
|
|
In individual cases, with the mutual agreement of the company and the licensee, the licensee may perform make-ready work at its own expense.
|
|
96.
|
National Services Tariff Item 901.4(q) provides as follows:
|
|
The company may inspect the work performed by the Licensee, its contractors and agents. Notice of any defect found while the licensee's work is underway will be transmitted to the Licensee who shall have the defect corrected within the time period specified by the company.
|
|
After the specified time period expires, the company may re-inspect the Licensee's facilities and, if the defects have not been corrected, have such defects corrected, or remove the Licensee's facilities and terminate the permit for the Licensee's facilities. Charges based on expense incurred will apply.
|
|
97.
|
The CCTA complained of the company setting arbitrary time intervals for remedial work. The Commission, in National Services Tariff Item 901.3(l), has prescribed wording to give greater certainty. The Commission is of the view that this item also should be more definitive. The Commission directs that the words "within the time period specified by the company" be replaced with "within a time period specified by the company, to be no less than 90 days following written notification of the defects of the licensee".
|
|
98.
|
The Commission considers the proposed company discretion concerning defect correction or facilities removal to be too liberal. The Commission directs, after the words "or remove the Licensee's Facilities and terminate the Permit for the Licensee's facilities" insertion of the words "provided that the Licensee has given written notice that it prefers removal to correction".
|
|
National Services Tariff Item 901.5 - Rates and charges
|
|
99.
|
(a) Non-recurring charges
|
|
(1) Unauthorized attachment
|
|
An unauthorized attachment charge shall apply where a Licensee has installed a Facility, on or in Support Structures, for which a Permit has not previously been issued. Where the company has acquired ownership of a Support Structure to which the Licensee has an existing attachment and for which a written authorization was obtained from the previous owner, the unauthorized attachment charge does not apply, however, a monthly rental will be assessed from the effective date of the change of ownership. The unauthorized attachment non-recurring charge does not apply, and the company will issue a Permit, where the attachment complies with the applicable Construction Standards and where the Licensee can substantiate to the reasonable satisfaction of the company that a monthly rental has been applied with respect to such attachment or where the Licensee can substantiate to the reasonable satisfaction of the company that the company has approved the attachment of the Licensee's Facility but has not issued a Permit.
|
|
Unauthorized Attachment per
rental unit ..........$100.00
|
|
100.
|
The charge does not apply where:
|
|
· The company acquires ownership to a support structure that the licensee has attached to and has a written authorization from the previous owner for attachment, the monthly rental charge will apply from the effective date of ownership change.
|
|
· The licensee complies with construction standards, and can reasonably satisfy the company that the Licensee has been paying a monthly rental charge or that the company approved the attachment but did not issue a permit.
|
|
101.
|
As an exception, where the licensee applies within 180 calendar days of the effective date of this item regarding unauthorized attachments that the company has not identified, the company will charge a $25 non-recurring fee and charge rent as of the effective date of this tariff item. Attachment will be subject to the tariff, SSA and construction standards.
|
|
102.
|
The CCTA wanted the $25 charge that Bell currently applies extended to all companies in place of the proposed $100. The Commission notes that the other companies have other, higher charges, most or all of which were designed for the respective environments in which those companies operate. A national rating structure must be a compromise that takes account of the differing environments. Furthermore, in view of the companies' 180 days/$25 provision, the Commission notes that the $100 charge is largely avoidable.
|
|
103.
|
The Commission notes, however, that the model tariff provided an exception for subscriber drop wires. For the same reasons given under 901.5(b)(1), the Commission considers that this exception should apply and directs that the first sentence be as follows:
|
|
An unauthorized attachment charge shall apply where a Licensee has installed a Facility, except a subscriber drop wire, on or in Support Structures, for which a Permit has not previously been issued.
|
|
(2) Late notification charge
|
|
104.
|
A $50 charge per day applies after the 30th day prior to the assignment date of the SSA for which the company has not received notification of assignment and/or change of billing name or address.
|
|
105.
|
The CCTA argued that this should be deleted as neither Decision 95-13 nor Order 96-1484 provide a basis for it. In the Commission's view, this provision should be denied, as it is not required. The Commission considers that section 12.5 of the SSA as amended is sufficient to protect a company's interests, and rejects this provision.
|
|
(3) Search charge
|
|
106.
|
This charge is based on expense incurred and uses tariffed hourly rates, where appropriate. It applies for all work to determine availability of spare capacity, estimate make-ready charges and process applicable documentation. The company will send the licensee estimated search charges when the licensee asks, or the company determines it to be necessary.
|
|
107.
|
The CCTA said that the charge should apply only for costs incurred in a field search, and that field search is required only when the licensee has not provided the necessary information. The CCTA, in its comments on proposed National Services Tariff Item 901.4(d), suggested the licensee should be able to do a field search and that the company should do it and charge for it only when the licensee has not done it.
|
|
108.
|
The Commission notes that its conclusions on 901.4(d) point out that there are a number of activities associated with the search charge for which a company should be entitled to recover. As for the issue of who does a field search, the Commission agrees with the companies that they must take responsibility for errors that will affect other users, directly or indirectly, therefore, a company should do the field search.
|
|
(4) Make-ready charge
|
|
109.
|
A charge, based on the expense incurred and where applicable using hourly labour rates specified in the company's tariff, applies to any material used and any work performed on, in, or in proximity to, the company's support structures or on the company's or joint-user's facilities. These include, but are not limited to, any additional investment or advance planned investment or reinforcement required, in order to meet the licensee's requirements for support structure service.
|
|
110.
|
The CCTA stated that rates and costs should be fully tariffed. For make-ready work needed to make spare capacity available, the licensee should have the option of doing the work at its expense, in accordance with safety and technical standards or asking the company to do the work. Where the company does the work, it should charge tariffed labour rates, plus material costs with no mark-up and give the licensee details of work done including time spent and hourly rates used, materials used, and material cost.
|
|
111.
|
The companies noted that each company owns the support structures and is responsible for ensuring their integrity for its own and the licensees' use. The company will have to deal with complaints and outages, and bear the costs of fixing troubles, however caused. Therefore, the companies should be permitted to do all work on their own support structures. However, the companies, other than BC TEL, stated that they would be prepared to evaluate specific proposals from the associations regarding performance by licensees of make-ready work.
|
|
112.
|
In light of the above, the Commission prescribes addition of the following:
|
|
In individual cases, with the mutual agreement of the company and the licensee, the licensee may perform make-ready work at its own expense.
|
|
113.
|
In addition, the Commission is of the view that where the company does the work, its recovery of costs, as set out in the proposed item, is consistent with the Commission finding in Decision 95-13. Charges based on costs incurred continue to apply where a telephone company constructs or reinforces support structures for the use of a customer.
|
|
(5) Inspection charge
|
|
114.
|
An inspection charge, based on expense incurred and tariffed hourly rates, as applicable, is to be applied for inspection of licensee's facilities to ensure their installation complies with the permit and the Construction Standards. The charge is not applied if the inspection does not start within 60 days of the licensee's notification to the company of construction completion.
|
|
115.
|
The CCTA said that this item should be changed to state that the charge applies for an inspection where there was a breach of safety and technical standards. The companies' view was that there must be inspections to ensure licensee's attachment methods do not compromise the integrity of the support structure.
|
|
116.
|
The item provides for inspections following the installation of facilities on support structures. The Commission considers that this is appropriate.
|
|
(b) Monthly rates
|
|
117.
|
The charge applies to each pole, either owned by the company or on which it is entitled to allow placement of the licensee's facilities as follows:
|
|
(a) for all of the Licensee's Strands attached to such pole;
|
|
(b) when (a) is not applicable, for all of the company's Strands supported by such pole, which Strands the Licensee uses; and
|
|
(c) when (a) and (b) are not applicable, for all other of the Licensee's Facilities attached to such pole.
|
|
For greater certainty there shall be only one pole rental unit charged per Licensee for each pole in any circumstance.
|
|
118.
|
In Order 96-1484, the Commission directed the telephone companies to issue tariff pages containing, among other things, the following:
|
|
"(c) when (a) and (b) are not applicable, for all other of the customers' facilities except subscriber drop wires, attached to such pole."
|
|
119.
|
The Commission notes also that the companies' model tariff, which served as a basis for discussion that led to the Joint Report, included the phrase "except subscriber drop wires".
|
|
120.
|
The Commission prescribes the insertion of "except subscriber drop wires" after the word "facilities" in paragraph (c).
|
|
121.
|
National Services Tariff Item 901.5(b) paragraph (2) provides that:
|
|
The Strand charge is for each strand span or portion thereof for placement of licensee's cable having a maximum outer diameter of 30.5 mm attached to the strand.
|
|
Monthly Strand Rental unit rate:
|
|
(as set $0.20 (per
out in 30 metres Decision or equivalent)
95-13)
|
|
MTS $0.24 per
equivalent 36 metres
|
|
Bell $0.24 per
equivalent 36.6 metres
|
|
NBTel $0.24 per
equivalent 36.6 metres
|
|
122.
|
The CCTA stated that there was confusion in the past on how to apply the rate. It requested the insertion of a reference to an explanatory diagram to be inserted in the SSA. The companies said that detail provided pursuant to Commission direction is sufficient.
|
|
123.
|
The Commission directs that a diagram be included in the SSA. Further, for greater certainty, the Commission notes that insertion of an element, such as a splice or an amplifier, into a cable on a strand does not convert that strand into multiple strands.
|
|
Conduit on private property
|
|
124.
|
A licensee, wanting to use a privately owned underground support structure designed by BC TEL in consultation with the owner and installed to accommodate BC TEL's and licensee's facilities, must apply using SSA outlined procedures (i.e., obtain a permit), and BC TEL will bill to a maximum of 50% of its engineering expense in providing the underground structure. No monthly rental applies and the appropriate engineering expense will be the only charge.
|
|
125.
|
The CCTA suggested that no permit should be required for a structure owned by a third party. In the Commission's view, the permit requirement is an appropriate measure to ensure compliance with the terms and conditions of the support structure service such that BC TEL's and the third party's facilities are protected.
|
|
Support structure license agreement
|
|
126.
|
Section 1.4 provides:
|
|
Except where otherwise specifically provided in this Agreement, should there be any contradiction, conflict or variance between the provisions of this Agreement and the Tariff, the provisions of the Tariff shall prevail.
|
|
127.
|
The CCTA said that the tariff should always prevail. Also, CCTA's view was that the SSA should say that the Terms of Service apply to support structure service except in cases where there is direct conflict with provisions of support structure service terms and conditions in which case the latter should apply. The companies stated that there are SSA provisions that could depart from the Terms of Service or from provisions in other tariffs.
|
|
128.
|
The Commission directs that this provision be amended consistent with the changes prescribed for tariff item 901.3(a) above and, accordingly, that the sentence commencing with: "Except where otherwise specifically provided in this Agreement." be replaced with:
|
|
This tariff item on support structures shall prevail where it conflicts directly with the SSA. Where the General Tariff including the Terms of Service, conflicts directly with the specific tariff item on support structures or the SSA, the aforementioned tariff item or the SSA, as applicable, shall prevail.
|
|
Scope
|
|
129.
|
Section 2.2 states that the company will give the licensee use of the support structure where there is spare capacity except where such use will unduly interfere with any joint user's or other licensee's rights. The company will always have priority access to meet current and anticipated future service requirements.
|
|
130.
|
The CCTA stated that priority access rights are not consistent with a competitive market.
|
|
131.
|
The Commission disposed of this issue in National Services Tariff Item 901.2 on the spare capacity definition. The Commission reiterates that in dispute situations, the companies must be prepared to objectively justify their current and anticipated future service requirements.
|
|
132.
|
Section 2.3 states that the licensee's use of support structure is subject to the telephone company's approval of the licensee's application; this approval requires availability of spare capacity, of the licensee's proposed support structure use conforming to the SSA, the tariff and construction standards. The company issues a permit which is effective when it receives the licensee's written acceptance of costs, terms and conditions specified in the permit.
|
|
133.
|
The CCTA stated that the SSA should specify the form of the application, which should be an attachment to the SSA. It stated that the SSA should specify when the permit is effective and the requirements when it is denied. Further, the permit should be effective when the telephone company has given the licensee written notice that make-ready work is completed or when the licensee accepts the permit (assuming no made-ready work is needed or the licensee is doing make-ready work itself).
|
|
134.
|
The companies said that the process described is consistent with existing procedures.
|
|
135.
|
The Commission notes that National Services Tariff Item 901.4 specifies the conditions for approval of access to support structures including conditions under which a permit is issued. The Commission is of the view that, as long as the application form and the information requested in it is consistent with the terms and conditions of the requirements of the tariff and the SSA, as approved by the Commission, this is sufficient.
|
|
136.
|
Section 2.5 states that when installing, maintaining or removing its facilities, the licensee must refrain from damaging, rearranging, relocating or removing support structures, the telephone company's facilities or other parties' facilities in accordance with technical standards, and safety requirements in the construction standards.
|
|
137.
|
The CCTA stated that the licensee should be permitted to rearrange another licensee's facilities with the latter's consent, which should not be unreasonably withheld. In the Commission's view, permitting a licensee to rearrange another licensee's facilities, even with the latter's permission, would not be in the general interest of users, or of the owner of the support structures. In the event that a licensee damages another company's facilities in rearranging them, there could be confusion in establishing which party should bear the responsibility for repair. The Commission considers therefore that a licensee should be able to rearrange, relocate or install only its own facilities.
|
|
138.
|
Section 2.7 provides:
|
|
The Licensee shall, at its sole cost and expense, be responsible to install, maintain, rearrange, replace, repair, remove or transfer Licensee's Facilities or perform any other work, all to meet the company's requirements within the time period specified by the company or specified by a third party (e.g., government authority, Joint-User) who is exercising its rights. After notice to the Licensee that the Licensee is to perform work under the terms and conditions of this Agreement, the Tariff and/or the Construction Standards and after the Licensee's failure to do so within the time period specified, the company may perform such work and the Licensee shall pay to the company all expenses incurred by the company in performing such work.
|
|
139.
|
The CCTA maintained that this provision grants the company and others excessive discretion. The Commission notes that National Services Tariff Item 901.3(n) provides for a prior notice period of at least 180 days if the company plans to abandon or remove support structures that a licensee is using. Furthermore, the licensee has the first 90 days to decide whether to buy the support structure. Thus, the licensee has at least 90 days, after deciding not to buy the support structure, to complete the work it must do. The Commission considers that section 2.7 of the SSA, as proposed, gives the company too much discretion. The Commission is of the view that the company should give the licensee a minimum of 90 days to perform the work.
|
|
140.
|
The Commission considers that this time period could be superseded by any time limit specified by a government authority having the jurisdiction to impose a shorter time period. In such circumstances, the company should notify the licensee of the time period imposed by the government authority.
|
|
141.
|
The Commission directs the addition to "within a time period specified by the company or specified by a third party (e.g. government authority, Joint-User) who is exercising its rights" of the words "to be no less than 90 days where the decision lies with the company".
|
|
142.
|
The CCTA proposed the addition of a provision in section 2.8 to state that construction standards would apply to all users including telephone companies. In the CCTA's view, if a telephone company installs its facilities in a particular manner, the licensees should be able to comply with the same standards. In the CCTA's view, no licensee should be required to comply with a standard the telephone company doesn't follow.
|
|
143.
|
Pursuant to Decision 95-13, licensees using the support structures are required to comply with the companies' construction standards, provided that they are based on safety and technical requirements and do not unreasonably impede access by other telecommunications carriers and cable television undertakings. In the Commission's view, if the construction standards are an appropriate standard to which licensees should be held, then it is reasonable that the companies be made subject to these same standards in respect of their own use of support structures. Assuming that the construction standards are in accord with the Commission's directives in Decision 95-13, there is no reason to expect that these requirements would be unreasonable. Accordingly, the Commission directs that 2.8 be added to the SSA as follows:
|
|
Both the licensee and the company shall comply with the construction standards as defined in the tariff. The licensee shall not be required to comply with any construction standard that the company itself does not follow.
|
|
Taxes
|
|
144.
|
Section 3.2 states that where taxes are levied on the company's property solely because of the licensee's use of it, the licensee shall pay the company the tax amount within seven days of receiving from the telephone company a copy of the tax bill or other writing showing the tax amount and showing that the taxes are solely based on the licensee's use. The company will then pay under protest. The company's failure to pay does not eliminate its right to payment from the licensee. The licensee may negotiate with or bring legal action against the taxing authority for cancellation or reduction. On receipt of any refund, the company will pay it and any interest to the licensee, less expenses the company has reasonably incurred.
|
|
145.
|
The CCTA stated that the Commission takes account of company taxes payable in setting rates so this provision should be deleted. Where a company has to pay taxes that may be directly attributed to licensees, the company may apply to the Commission for a rate change.
|
|
146.
|
The companies stated it is impractical and costly for a company to submit rate changes for specific taxes in different jurisdictions. Companies should not be responsible for collecting taxes from licensees absent statutory authority.
|
|
147.
|
The Commission notes that Decision 95-13 contains no provision for setting rates to cover taxes that are the subject of this provision and established uniform national rates, with the support of at least some CCTA members. The Commission is of the view that providing for rate changes to reflect variances in taxes from one jurisdiction to another would militate against maintaining national rates.
|
|
Item 4 - Statutes, rules and regulations
|
|
148.
|
Section 4.1 states that the licensee is responsible for obtaining all licenses, permits, etc. from public authorities and for complying with all public authorities' laws, rules, etc., in using support structures or other company property.
|
|
149.
|
Section 4.2 states that where a licensee does not comply with section 4.1 or otherwise causes company, joint user or other licensee loss of easements, etc., the licensee must indemnify or save harmless the company, joint user etc. from claims and shall pay related expenses. Where there is a dispute on whether loss, cost, etc. has been incurred, the licensee must pay the company until the issue has been settled pursuant to section 11 or pursuant to a court's or regulatory authority's judgement.
|
|
150.
|
The CCTA asked the Commission to delete section 4.1, stating that it is covered in tariff provision 901.3(e). The CCTA maintained that, as proposed, section 4.1 would put the company in a position of interpreting and enforcing a range of laws by denying access to support structures pursuant to section 4.2. The CCTA argued that section 6 of the SSA, which covers liability and indemnification, is sufficient to deal with these circumstances.
|
|
151.
|
The companies argued that it is reasonable to require the licensee to get and maintain permits etc. and abide by laws; it is also reasonable to have such provisions in section 4, which covers compliance with the law, to confirm licensee's obligation to ensure that it complies with the law. Also, the licensee should assume consequences of failure to comply with public authorities' requirements. Where a licensee considers a law not to be valid, it should seek appropriate legal remedies. For these reasons, the companies argued sections 4.1 and 4.2 should stay.
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|
152.
|
Regarding section 4.1, the Commission is of the view that tariff provision 901.3(e) merely points out that the licensee must hold, and so demonstrate to the company, all required authorizations. SSA section 4.1 contains much more detail regarding the licensee's responsibility for compliance with laws, rules, etc. In the Commission's view, therefore, tariff provision 901.3(e) is not substitutable for SSA section 4.1. Regarding section 4.2, the Commission notes that the CCTA did not explain its objection to the substance. The Commission notes that the item deals with the licensee's requirement to indemnify or save harmless strictly with respect to the licensee's acts or omissions. In the Commission's view, it in no way conflicts with SSA section 6.
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|
153.
|
Section 4.3 states that the licensee is to obtain and maintain at its own cost, rights-of-way, consents, etc., that it needs and is to give the company written evidence on the company's request. Where the company's rights-of-way etc. let it grant a licensee rights to place facilities on support structures, the company, at the licensee's cost, will get these rights and provide written evidence on the licensee's reasonable request, provided that the rights are only for licensee facilities for which the company has issued a permit after this SSA has come into effect.
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|
154.
|
In the CCTA's view, the provision should be deleted, given that rights-of-way and consents are covered in National Services Tariff Item 901.3(f). The licensee should not have to give the company written evidence, as this places the company in a position of determining the adequacy of permission. Rights-of-way, etc. should be between the property owner and the licensee only.
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155.
|
The companies said that they, as owners, must deal with complaints from property owners and public authorities with respect to the licensee's lack of proper authorization to use a company's support structures; thus permits and rights-of-way are not just between the licensee and the property owner.
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|
156.
|
As noted in its discussion of National Services Tariff Item 901.3(f), the Commission is of the view that the company, as support structure owner, is entitled to ensure that it is protected with respect to third parties, public authorities, etc. As for whether this section should be deleted in view of the existence of National Services Tariff Item 901.3(f), the Commission notes that this section covers the issue in greater detail and accordingly, should remain.
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|
157.
|
Section 4.4 states that the company does not guarantee that support structures are on property to which the company holds an irrevocable easement, right-of-way, etc. Where a property owner forces the company to move support structures, the licensee must remove facilities promptly at its own expense.
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|
158.
|
The CCTA requested deletion of this provision. It said that forced relocation of facilities is covered in National Services Tariff Item 901.3(n). However, there should be a provision requiring both parties negotiating future rights-of-way to make all reasonable efforts to ensure third parties ability to use support structures on such rights-of-way.
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|
159.
|
The companies disagreed and contended they should not be under a contractual obligation to ensure third-party access. The phrase "all reasonable efforts to acquire rights-of-way to permit third parties to use" is vague and there could be differences of opinion among the companies, licensees and other customers. Companies cannot know what additional rights-of-way might be needed to accommodate undetermined third parties to meet unknown requirements with no certainty whether and when costs incurred would be recovered.
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|
160.
|
The Commission notes that National Services Tariff Item 901.3(n) sets out the processes that the company will follow in the event that it abandons support structures. Section 4.4 of the SSA points out that the company does not guarantee that its easements, rights-of-way etc. are irrevocable. The Commission is of the view that there should be a cross-reference to National Services Tariff Item 901.3(n). With regard to the last sentence, the Commission directs that "the Licensee shall promptly remove its Facilities." be replaced with "the Licensee shall remove its Facilities in accordance with the provisions of National Services Tariff Item 901.3(n).".
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|
Performance of work on, in or in proximity to support structures
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161.
|
Section 5.1 of the Support structure license agreement states that a company employee, agent, etc. can stop the licensee's operations on or near support structures if the licensee doesn't have the necessary approvals, permits etc. or if, in the company employee's sole discretion, the licensee's operations endanger support structures or attached facilities. The licensee (or contractor or agent) is to stop work when notified directly or by telephone. The company will provide written confirmation at its earliest convenience. Where there is a dispute over a 5.1 company finding, the licensee will stop all work until the dispute is settled through the dispute resolution procedure set out in SSA section 11.
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|
162.
|
The CCTA argued that 5.1 and 5.2 are inappropriate. The tariff requires the licensee to comply with safety and technical standards. The CCTA submits that company employees should not have the proposed powers. When inspecting, the company will find any breaches of standards. Where permits are absent, the company can rely on the dispute resolution process pursuant to section 11 of the SSA or apply to the Commission or the courts.
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|
163.
|
The companies noted that the companies own the structures; they will have to deal with third party complaints on damages or on breaches of permits. In their view, therefore, these provisions are appropriate.
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|
164.
|
The Commission considers that the companies must be able to protect other users of support structures. The Commission is of the view, however, that section 5.1, as proposed, would give the companies too much discretion. In substance, this provision is similar to those relating to inspections. The Commission concludes that where there is no permit or other approval, or where a company employee is of the view that the licensee may be endangering others' facilities, the provisions under National Services Tariff Item 901.4(q) should apply.
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|
165.
|
The Commission directs that the proposed wording of section 5.1 be replaced with the following:
|
|
Where a company employee, agent or representative determines that a licensee does not have the required permit, license, consent, approval or authorization to perform work, the licensee is required to apply for a permit, license, consent or approval, pursuant to the applicable tariff provisions and in addition, shall be liable for the payment of an unauthorized attachment charge pursuant to National Services Tariff Item 901.5(a)(1).
|
|
In the event that a company employee, agent, or representative believes that support structures or any attached facilities are being exposed to hazardous conditions as a result of the licensee's work operations, the company may inspect the work, order that it be stopped immediately, and take action pursuant to National Services Tariff Item 901.4(q).
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|
166.
|
The Commission directs that the proposed wording of section 5.2 be replaced with the following:
|
|
In the event of a dispute between the company and the licensee with respect to a determination by the company pursuant to section 5.1 of this agreement, the dispute may be resolved in accordance with the procedure specified in section 11 of this agreement.
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|
167.
|
Section 5.3 states that the licensee shall ensure that its employee, contractor or agent doing work on, in or near support structures knows and meets the licensee's responsibilities as specified in the tariff, the SSA and the construction standards. The licensee is responsible for the employee's, contractor's and agent's conduct regarding the licensee's obligations pursuant to the tariff, the SSA and the construction standards.
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|
168.
|
The CCTA submits that as the tariff requires licensee compliance with the construction standards and covers the licensee's use of contractors, section 5.3 is not needed. The companies submitted that, as the licensee may use contractors to work on or near support structures, this confirmation of obligations is appropriate.
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|
169.
|
The Commission agrees with the CCTA, however, and it is also of the view that Item 5.3 does not conflict with the other two documents and has the value of making very clear the fact that the licensee bears full responsibility for its employees', contractors' and agents' conduct.
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|
Liability
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|
170.
|
Section 6.1 notes that without restricting the generality of the company's general tariff, except where the claim, loss, liability, etc., arises from the company's gross negligence or wilful act, the licensee shall:
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|
171.
|
(a) be liable to the company and its personnel (including contractors, agents, etc.); and
|
|
(b) indemnify etc. the company and its personnel from claims and damages etc. the company incurs in connection with:
|
|
(i) losses, delays, etc. in company provided service or service provided by any authorized user of support structures to any person because of placement etc. or use of licensee's facilities or equipment, in or on the support structures;
|
|
(ii) interruption etc. of the licensee's service to its customers caused by the company under the SSA or the tariff or from any use of support structures, use of the licensee's facilities or equipment in or on the support structures or use on misuse of support structures by the licensee;
|
|
(iii) licensee caused damages or physical injury to the company, the personnel or any other person;
|
|
(iv) licensee's failure to abide by SSA, tariff, permit, or law.
|
|
172.
|
The CCTA said the proposed one-way liability and indemnification provisions are not appropriate in a competitive environment. Support structure service differs from other telecommunications services - it requires the company and the licensee to share physical space so that there is the risk that each can damage the other's equipment. The CCTA, therefore, proposes reciprocal obligations.
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|
173.
|
The companies argued that this licensee liability is akin to the liability of a commercial lessee of real estate or equipment. The companies should not have to assume greater risks in providing access to their support structures than other lessees of equipment and real estate, especially, as the companies are obligated by Commission directives to provide access to their spare capacity on their support structures.
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|
174.
|
The Commission's view is that CCTA's proposed reciprocal obligations would be inappropriate. The Commission has obliged the companies to permit access to their support structures by cable companies and competitive telecommunications providers at rates that are not market-based to serve public policy objectives.
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|
Insurance
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|
175.
|
7.1 Provides that the licensee shall carry insurance, at its own costs, to cover all legal liabilities that the licensee assumes and that relate to operations its contractors and agents perform under the SSA. The company is added as co-insured under the licensee's policies.
|
|
7.2 Minimum insurance must be $2 million in aggregate for any one accident or occurrence.
|
|
7.3 Notwithstanding termination of the SSA, all insurance is in force as long as the licensee has a facility on or in the companies support structures, except a facility that the company requires to be abandoned in place, such as conduit connections.
|
|
7.4 The licensee's insurance company must be licensed per applicable provincial and/or federal law. The licensee must give the company insurance certificates stating the insurance company:
|
|
· has insured the licensee, its contractors and agents against liability under the SSA;
|
|
· will not cancel or change the policies without giving the company 30-calendar days prior written notice.
|
|
7.5 The company is not responsible for insuring the licensee's facilities or equipment against loss or damage.
|
|
176.
|
The CCTA proposed wording to change the thrust of these sections to conform to the changes in section 6. The proposed wording would allow licensees to avoid giving the company the insurance certificates until the company requests them in writing. The CCTA proposed a minimum coverage of $1 million rather than $2 million.
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|
177.
|
The Commission is of the view that the company should not have to request insurance certificates in writing to have them submitted. The company, as owner of the support structure, is entitled to have proof of insurance. With regard to minimum coverage, the companies stated that their insurers recommend a $2 million minimum. The CCTA proposed $1 million but did not provide any support to indicate whether this would be sufficient for the purposes at issue. In the Commission's view, the companies' proposed $2 million should stand.
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|
Termination of agreement and permits
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|
178.
|
9.1 Notwithstanding any other provisions of this agreement or the tariff, the company is entitled to terminate at its option a permit and/or the SSA with 60 days prior written notice where a licensee fails to:
|
|
(a) pay any amounts pursuant to the tariff or the SSA; or
|
|
(b) comply with any terms and conditions of the tariff or the SSA;
|
|
as long as the licensee has been given written notice of such failure and has had 60 days to pay or comply and has not paid or complied.
|
|
179.
|
The CCTA said the opening wording is not appropriate because the tariff should prevail where it conflicts with the SSA. No other SSA provisions appear to conflict with 9.1; and 9.1 would override the company's tariffed terms of service.
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|
180.
|
The Commission notes that in section 1.4 of the SSA as amended by the Commission, the tariff item on support structures always prevails over the SSA in the event of conflict. The CCTA suggests that there are no other sections of the SSA that conflict with this item. In the Commission's view, the corrective measures found in the tariff item should continue to apply. The Commission is of the view, therefore, that the wording should be "Notwithstanding any other provisions of this agreement, and subject to the provisions of National Services Tariff Item 901,.".
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|
181.
|
The CCTA submitted that "fails to pay any amounts ." should be replaced by "fails to pay any undisputed amounts.". The Commission notes that the companies' proposed provision provides for amounts due "under the Tariff or this Agreement" which suggests that the amounts are not open to question. However, the Commission is also of the view that to adopt the CCTA wording, "failure to pay undisputed amounts" could be an invitation to automatic dispute.
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|
182.
|
The Commission is of the view that, where a licensee has failed to pay an amount the company claims to be owing but the licensee objects then partial payment, within the period provided, of 50% of what the company claims, is a reasonable compromise to prevent abrogation. The dispute should then be dealt with under section 11 of the SSA.
|
|
183.
|
In light of the foregoing, the Commission directs that the following be substituted for the currently proposed section 9.1:
|
|
Notwithstanding any other provision of this agreement, and subject to the provisions of National Services Tariff Item 901, the company shall be entitled, to terminate any permit and/or this agreement upon 60 calendar days written notice to the licensee:
|
|
(a) where the licensee fails to pay any undisputed amounts due and owing to the company under the tariff or this agreement;
|
|
(b) fails to pay 50% of the disputed amount claimed by the company; or
|
|
(c) where the licensee fails to comply with any of the terms and conditions of the tariff or this agreement;
|
|
always provided that the licensee shall have been given written notice of such failure to pay or to comply and a period of sixty (60) calendar days within which to cure such failure to pay or to comply, and that such deficiency shall remain unremedied at the expiration of such sixty (60) day period.
|
|
184.
|
Section 9.2 provides that notwithstanding any other provisions of the SSA or the tariff, the company may terminate the SSA, at its option, immediately upon written notice, where:
|
|
(a) a licensee does not maintain insurance pursuant to section 7;
|
|
(b) it is required by law, court order or regulatory directive;
|
|
(c) a licensee goes bankrupt; or
|
|
(d) a licensee ceases doing business.
|
|
185.
|
The CCTA submitted that it is unreasonable to terminate immediately because of an insurance policy lapse because it could be due to clerical error or the bankruptcy of the insurer. The CCTA proposed there should be a reasonable time period for the licensee to remedy the situation as follows:
|
|
The company may terminate after 14 days written notice for failure to maintain insurance if a licensee has not taken the necessary corrective action to comply with section 7.
|
|
186.
|
The companies argued that failure to maintain insurance is a serious breach; it could expose the company, which owns support structures, to third-party claims.
|
|
187.
|
The Commission considers that insurance must be maintained to protect the support structure owners from third-party claims and that the insured, and not the support structure owner, must be clearly responsible for ensuring the validity of its insurance.
|
|
188.
|
The Commission is of the view that the preamble in section 9.2 should be changed to reflect the substance of the preamble in section 9.1 as follows:
|
|
Notwithstanding any other provision of this agreement, and subject to the provisions of National Services Tariff Item 901, the company shall be entitled to terminate any permit and/or this agreement upon written notice to the licensee:
|
|
189.
|
Section 9.3 notes that notwithstanding any other provision of the SSA or the tariff, the company, on notice to the licensee, may terminate forthwith a permit for support structures use where:
|
|
(a) the licensee defaults on complying with 4.1 or 4.3 of the SSA;
|
|
(b) the licensee defaults on complying with construction standards and fails to correct within the company's specified time period;
|
|
(c) support structures are destroyed from any cause;
|
|
(d) the company will not terminate a permit for support structures it replaces for maintenance purposes.
|
|
190.
|
The CCTA stated that its comments relating to section 9.1 should apply. It asked that the Commission delete 9.3(a) consistent with the CCTA's proposal to delete sections 4.1 and 4.3 since they are superfluous because the tariff covers the related issues of the SSA.
|
|
191.
|
The CCTA asked the Commission to delete 9.3(b) as the tariff provides a remedy where the licensee does not comply with construction standards. Regarding section 9.3(c), the CCTA argued that the permit should be cancelled only where the company does not intend to replace the support structures. Further, where replacement will occur, no rent should be payable until the support structures are replaced.
|
|
192.
|
The companies stated that paragraphs (a), (b) and (c) provide reasonable grounds for cancelling a permit. The companies argued that a company should not have to assume the costs that the CCTA's proposal for 9.3(b) would result in. Regarding 9.3(c), they argued that if a structure were destroyed, the replacement structure might differ, so a new permit would be required for the new structure.
|
|
193.
|
The Commission is of the view that this provision must be made subject to the provisions of National Services Tariff Item 901 as prescribed in section 9.1.
|
|
194.
|
With regard to section 9.3(a), the Commission views both sections 4.1 and 4.3 as being far more comprehensive than the tariff items that the CCTA described. The Commission considers that a licensee's failure to comply with sections 4.1 and/or 4.3 could put the company in the position of being in violation of the law. The Commission's view is that the company should be able to cancel immediately, as long as the circumstances leading to the cancellation are not covered by sections of National Services Tariff Item 901.
|
|
195.
|
Regarding section 9.3(b), the Commission has concluded that National Services Tariff Item 901.3(l) should apply.
|
|
196.
|
Regarding 9.3(c), the Commission notes the companies' point that a replacement structure may differ from the original. In the Commission's view, therefore, the permit need not be cancelled unless this is the case.
|
|
197.
|
The Commission directs that section 9.3 be reworded as follows:
|
|
Notwithstanding any other provisions of this agreement, and subject to National Services Tariff Item 901, the company may, upon notice to the licensee, terminate any permit for the use of the company's support structures in the following circumstances:
|
|
(a) Default on the part of the licensee in complying with section 4.1 or 4.3 of this agreement;
|
|
(b) Default on the part of the licensee in complying with the construction standards and failure to correct such default;
|
|
(c) Where support structures for which the company has issued a permit are destroyed from any cause and the company has determined that the replacement structures must differ from the original; and
|
|
(d) A permit for support structures being replaced for maintenance purposes shall not be terminated.
|
|
198.
|
Section 9.4 notes that on termination of the agreement, the licensee has 180 days, or a mutually agreed period from the termination date of the SSA, to remove its facilities at its own expense.
|
|
199.
|
The CCTA stated that, given the scale of facilities relocation, 180 days should be changed to 12 months.
|
|
200.
|
The companies noted that the 180-day maximum has been changed to a 180-day minimum, or the licensee may leave its facilities in place pursuant to section 9.6. On termination of an agreement, the company should be able to put its support structures to good use as soon as possible, where possible.
|
|
201.
|
The Commission notes the companies' point that the 180 days had become a minimum period for removal in view of the reference to mutually agreed additional periods. The Commission notes however that, where parties fail to agree, the 180 days becomes a minimum and a maximum. The Commission also notes the CCTA's point that relocation is more complex than simple removal. Therefore, the Commission is of the view that both parties envisage a period longer than 180 days as reasonable.
|
|
202.
|
The Commission directs that the words, "within 180 days" be replaced with "and shall have 180 to 270 calendar days".
|
|
203.
|
Section 9.5 notes that on termination of a permit, the licensee must remove its facilities, at its expense, on or before the date specified in the notice for permit termination.
|
|
204.
|
The CCTA noted that the permit might apply to a number of support structures. In addition, under section 9.3, the notice period may be minimal. The CCTA proposed that this provision states:
|
|
On termination of a permit pursuant to sections 9.1 or 9.3, the licensee has 60 days from the permit's effective date to remove its facilities.
|
|
205.
|
The companies said that a company may be bound by other agreements, such as joint use agreements with others, and so be unable to provide the removal period the CCTA requests.
|
|
206.
|
The Commission is of the view that section 9.5, as proposed, would provide a company with too much discretion. Further, the Commission is of the view that the licensee requires predictability. In the Commission's view, a 60-day period from the effective date of the permit cancellation is reasonable and directs that the words "such removal date to be no less than 60 days following the termination date of the permit" be added at the end of section 9.5.
|
|
207.
|
Section 9.6 notes that where the licensee fails to remove facilities pursuant to sections 9.4 or 9.5, facilities' ownership goes to the company at no cost. The company may remove and/or sell them at the licensee's risk and expense and apply the net amount of such sale to the licensee's account. On the date of sale or removal, rentals and charges to the licensee end.
|
|
208.
|
The CCTA submitted that there should be no transfer of ownership of the facilities. The CCTA agreed that a company may remove the facilities at a licensee's risk and expense according to the company's tariff rate for support structure work; rentals and charges cease on expiry of the notice period under section 9.4 or 9.5 of the SSA as applicable. The companies stated that failure to remove is effective abandonment. A company should not have to remove and then seek costs from a licensee that may have ceased doing business. The company should be able to use the abandoned facilities attached to its support structures if a use is available. The companies argued that they need this provision to avoid risk of damage to other facilities from the removal of facilities at issue; and to be able to remove the facilities efficiently as and when appropriate.
|
|
209.
|
The Commission has prescribed changes to sections 9.4 and 9.5 to provide the licensee with a minimum time period for the removal of its facilities. Further, the Commission is of the view that failure of the licensee to remove facilities within the terms of the SSA can appropriately be considered abandonment. In such circumstances, the Commission considers it appropriate that ownership of the facilities transfer to the owner of the support structures.
|
|
210.
|
Section 9.7 provides that:
|
|
Notwithstanding section 9.6, where the Licensee requests in writing that its Facilities remain in place after termination of the Agreement or of any Permit, and where the company agrees in writing to such request, or where in the company's reasonable opinion such Facilities must remain in place, the ownership of such Facilities will be transferred to the company at a mutually agreed to date, prior to the effective date of termination of this Agreement or of any Permit, and at no cost to the company. All liability of the Licensee accruing after the date of such transfer (other than any liability accruing after the date of such transfer arising as a result of any act or omission of Licensee or any failure to comply with the Agreement prior to termination of the Agreement) under this Agreement and the Tariff, including payment of any rentals and charges, will cease for such Facilities.
|
|
211.
|
The CCTA suggested deleting the words, "or where in the company's reasonable opinion such Facilities must remain in place." The company should not be able to determine whether a licensee may retain ownership of its own facilities. If a licensee wants to remove its facilities at its own cost, the company should not be able to prevent it.
|
|
212.
|
The CCTA submitted that there should be no licensee liability accruing after the ownership transfer date. Once the company has ownership of the facilities, all licensee liability should stop.
|
|
213.
|
The companies stated that the company, as owner of the support structures, should be permitted to determine whether the facilities can be removed. The issue is the potential for damage to the support structure or other facilities on it.
|
|
214.
|
The Commission agrees with the CCTA that the company should not have the sole discretion to decide whether a licensee may or may not remove its own facilities. The Commission notes, however, that there could be cases in which removal could cause damage to support structures. In that case, the licensee should have the choice of removing the facilities and paying the company's costs to repair the structures damaged in consequences or leaving the facilities in place and allowing ownership to transfer to the company.
|
|
215.
|
With regard to the CCTA's contention that a licensee should not be liable after the transfer date, the Commission is of the view that liability accruing as a result of any acts, omissions or failures to comply with the agreement prior to its termination is properly the licensee's.
|
|
216.
|
The Commission prescribes deletion of the words "or where in the company's reasonable opinion such facilities must remain in place".
|
|
217.
|
Immediately before the final sentence, the Commission prescribes insertion of the following:
|
|
Where the company determines on a reasonable basis that removal of the licensee's facilities will result in damage to the support structures, the company shall, at least 30 calendar days prior to the termination date of the agreement or of any permit, advise the licensee, in writing, of the company's determination and shall provide a written estimate of costs to repair the support structures. The licensee shall then have 10 calendar days to advise the company, in writing, of whether it intends to remove the facilities and pay costs to repair the support structures or to transfer ownership of the facilities.
|
|
Unauthorized presence of licensee's facilities
|
|
218.
|
10.1 Provides that the company shall apply to a licensee's facilities that are on a support structure without a permit, without restricting other legal remedies available upon advising the licensee of the unauthorized attachments, and the licensee agrees to pay, an unauthorized attachment charge per unit as the tariff sets out. The company may remove the facilities on 30 days written notice to the licensee at the licensee's expense. To keep the facilities on the structure, the licensee must apply within the 30-day notice period.
|
|
10.2 Provides that where there is spare capacity, the company may approve the application as above, as long as the facilities are correctly installed per tariff, SSA and construction standards or, if they are not, the licensee agrees to correct defects.
|
|
10.3 Provides that where there is no spare capacity, the company may elect to upgrade the support structure at licensee's cost. If the licensee does not agree to pay, the company will not approve the application; licensee must remove the unauthorized facilities at its own expense within a time period determined by the company or the company may do so and recover costs from the licensee.
|
|
219.
|
The CCTA disagreed with this approach. It submitted that item 10 should substantively be as follows:
|
|
10.1 The company notifies the licensee of the requirement for a permit for the unauthorized attachments.
|
|
10.2 The company may charge pursuant to the tariff for the unauthorized attachment. The licensee must apply for a permit within 30 days of the applying of the charge. Where the application is denied, the company does nothing with regard to the licensee's facilities without the licensee having the opportunity to dispute the denial before the Commission. If the Commission approves the denial or if the licensee fails to apply to the Commission within 30 days of written notice of the denial, the company may require the licensee to remove the facilities at the licensee's cost. If the licensee does not, the company may remove them in accordance with the tariff.
|
|
10.3 Where an unauthorized attachment charge does not apply, the company must issue a permit without requiring an application.
|
|
10.4 Where the company issues a permit for facilities originally placed without the permit, it may inspect the facilities in accordance with the tariff.
|
|
220.
|
The companies said that this section, as proposed, deals efficiently with the persisting unauthorized attachment problem and the provisions are clear and fair. Licensees complying with the SSA and the tariff in obtaining permits will not suffer unauthorized attachment charges.
|
|
221.
|
Where unauthorized facilities are attached, the CCTA wants the company to be prevented from removing a licensee's facilities where an application is denied, pending the completion of a dispute resolution process that result in a Commission order. The Commission notes, however, that in sections 10.2 and 10.3, the SSA sets out clearly the requirements for approval of an application including what a licensee must do to meet them. The requirements are fully consistent with Decision 95-13, the tariffs and the SSA as amended. In the Commission's view, there is no need to include a provision to provide the licensee an opportunity to refer a matter to the Commission for dispute resolution.
|
|
222.
|
The Commission recognizes that conflicts may arise. For example, should the company claim that the unauthorized facilities do not conform to requirements and require the licensee to correct alleged defects, the licensee may claim that the facilities do conform to requirements. In such circumstances, the licensee may refer the dispute to the Commission. As section 10.2 indicates, approval/denial of an application depends upon whether in fact the unauthorized facilities comply with requirements, and if they do not, whether the licensee agrees to correct the defects. In section 10.3, the companies proposed that where a licensee does not agree to charges for support structure provision or upgrade, the company might determine the time period that the licensee has to remove the facilities. The Commission is of the view that this gives the company inappropriate discretion and directs that, in 10.3, the words "within a time period determined by the company" be replaced with words consistent with section 9.4, namely, "within a period of 180 to 270 calendar days."
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Dispute resolution process
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223.
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Section 11.1 provides that the company and the licensee will try to resolve a dispute at the level where it arose, then up through middle and upper management. Absent resolution, they will establish a joint committee at the request of either. Absent resolution at that level, either party may refer it to the Commission. Parties agree to time intervals at each negotiation level. Unless otherwise agreed the period within which a dispute may be referred to the Commission will not exceed 30 calendar days from the date of establishing the joint committee.
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224.
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The CCTA agreed with the proposed dispute resolution procedure, but proposed that either party be able to refer the dispute directly to the Commission at any time.
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225.
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The companies acknowledged that the Commission can hear and dispose of an application regardless of the companies' proposed mechanism. They suggested that CCTA's wording invites parties to ignore the mechanism. The proposed mechanism is for addressing operational day-to-day issues (that have seldom been brought before the Commission) as well as other matters and it is a resolution method that does not affect the Commission's ability to intervene.
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226.
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The Commission notes that any procedure agreed to by the parties cannot abridge the rights of either party in respect of bringing a matter before the Commission; therefore, with or without the addition of the CCTA's proposed wording, either party may do as the CCTA's wording suggests. The companies acknowledged this in their response.
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General conditions
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227.
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12.1 Survival: Terms and conditions of the SSA or tariff that apply, extend, or may extend beyond the termination of the SSA, continue in force except as expressly set out herein. Notwithstanding anything herein, licensee's liabilities under the SSA and tariff, including charges, continue until facilities are removed and the company has accepted the removal. Section 12.1 survives termination of the SSA with the licensee.
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228.
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The CCTA said that the proposed wording is unclear. It suggested substitute wording that says the termination of the agreement does not relieve the licensee of the obligation to pay what it owes to the company at termination. The companies said that section 12.1 addresses more than obligations for payment of amounts owing; it covers the full range of obligations that may survive SSA's termination.
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229.
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The Commission considers that the termination of the agreement does not relieve the licensee of outstanding obligations and accordingly, adopts the provision as proposed.
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230.
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12.2 No Waiver: Failure of either party to insist on compliance with SSA or the tariff or standards and requirements in the construction standards is not a waiver of any terms, conditions or rights; mere passage of time, or the execution of revisions, modifications or extensions to the SSA does not affect other terms, conditions or rights under the SSA unless expressly stated.
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231.
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12.6 Prior Agreements: This agreement, including the tariff and construction standards, replaces and cancels all other existing agreements, licences, and contracts between the parties hereto relating to the installation of the licensee's facilities on or in the support structures.
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232.
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The CCTA said the passage "or the execution of revisions, modifications, or extensions to this Agreement" should be deleted from section 12.2. If the Commission approves an amendment of the SSA, it could affect other parts of the SSA and it would be impractical to try to identify every possible effect of such an amendment. The CCTA proposed references to the tariff and construction standards be deleted from section 12.6 as superfluous and misleading.
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233.
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The companies said that the wording is appropriate.
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234.
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With regard to section 12.2, the Commission agrees with the CCTA and prescribes deletion of the words "or the execution of revisions, modifications, or extensions to this Agreement." With regard to s.12.6, the Commission does not agree with the CCTA that the references are superfluous. The tariff and the Construction Standards contain requirements that parties must meet.
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235.
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12.5 Assignment: (a) Provides that each party may assign the SSA in whole or part. A licensee's assignment is subject to the company's prior written consent, not to be unreasonably withheld or delayed. A licensee must give at least 30 days advance notice in advance of the assignment date. On receipt and consent, the company will send the licensee the documentation within 30 days. The licensee will return the executed documents within 30 days of the effective date of the assignment or change. When consent is denied, the company will advise, in writing and with reasons, within 30 days of receipt of the original request. The assignee and assignor, jointly and generally, agree to pay a charge for each day after the 30th day prior to the assignment date for which the company has not received notification. The charge is as the tariff specifies.
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236.
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The CCTA submitted that the 30-day advance notice should apply to the company too. Further, as neither Decision 95-13 nor Order 96-1484 provide for a late notification charge, reference to the charge should be deleted.
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237.
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The companies stated that neither Commission ruling contains a directive applying to the subject matter of section 12.5(a). In the past, late notification of assignments has cost the companies money in misdirected bills and unpaid charges. Late payment charges are incentives to licensees to notify the companies of an assignment; they should cause no trouble to licensees complying with notification rules on time.
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238.
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The Commission agrees with the CCTA that each party should give notification of assignment. Further, as the notification requirement is required for valid assignment, the Commission is of the view that a charge for late notification is not required. The Commission directs that the last sentence be deleted. The Commission also directs that the first sentence be replaced with the following:
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This agreement may be assigned, in whole or in part, by either party upon 30 days written notice, provided that any assignment by the licensee shall be subject to the company's prior written consent that shall not be unreasonably withheld.
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239.
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12.8 Severability: Where provisions in the SSA or the tariff are declared invalid or unenforceable, the SSA and the tariff regarding enforceable provisions and all related rights and remedies survive the declaration. The company will replace the non-enforceable provision with a valid provision coming closest to the intention underlying invalid, illegal or unenforceable provision.
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240.
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The CCTA requested deletion of references to the tariff, stating that it is beyond the SSA's scope to address possible consequences if the tariff were found unlawful.
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241.
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12.10 The SSA and permits are governed by federal law and the law of the province where the support structure is located. Parties agree that disputes going to any court, tribunal other than the Commission will go to the court etc. in the province where the support structure at issue is located. If the support structure is in more than one province, the company decides which province it will be heard in. Where the Commission hears a dispute, it shall specify the manner in which the dispute shall be heard.
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242.
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The CCTA suggested deleting all but the first sentence. A company should not have exclusive right to choose which province the dispute shall be heard where the structure is in more than one. The convenience of both parties should be considered. Also, the law of a province should be restricted to the structure in that province; it cannot apply to the structure in another province.
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243.
|
The companies said that modifications to this section provide clarity on disputes before the courts.
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244.
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The Commission considers that the company should not, by itself, have the choice of what province a dispute shall be heard in, where support structures at issue are in two or more provinces. Further, the Commission notes CCTA's point that the law of one province may not necessarily apply to a support structure in another province. Accordingly, the Commission directs that these provisions be deleted from the proposed section 12.10.
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245.
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12.11 Time shall be of the essence in the SSA and the Tariff.
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246.
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The CCTA proposed deletion of the word "Tariff" as the SSA cannot impose interpretative conditions in the tariff.
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247.
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The companies replied that, in sections 12.8 and 12.11, references to the tariff are appropriate as both the tariff and the SSA define terms and conditions of the service offered.
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248.
|
The Commission considers that these descriptive references to the tariff are useful and approves these as proposed.
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249.
|
13.1 Confidentiality provision:
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The company agrees to use information regarding the Licensee's customers, services, facilities, and current or future business plans and strategies provided by the Licensee to the company in the course of the performance by the parties of their obligations under this Agreement, the Tariff and the Construction Standards ("Licensee Confidential Information") solely for the purpose of facilitating the provision of the services contemplated under this Agreement, the Tariff and the Construction Standards. The company will hold in confidence Licensee Confidential Information in accordance with the provisions of the company's Terms of Service. Furthermore, the company will not use or disseminate or permit dissemination of Licensee Confidential Information within the company or the member companies of Stentor Canadian Network Management (or its successors or assigns) or the company's affiliates and subsidiaries, or Stentor Resource Centre Inc. (and its successors or assigns) or to anyone else for competitive purposes. Any Licensee Confidential Information provided by the company to any such person or entity shall be provided to such person or entity upon the agreement of such person or entity to protect the confidentiality of such Licensee Confidential Information to the same degree that the company protects the confidentiality of Licensee Confidential Information pursuant to this section 13.
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250.
|
Section 13.2 provides that:
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The Licensee will hold in confidence information regarding the company's customers, services, facilities, and current or future business plans and strategies provided to it by the company or received by the Licensee in the course of the parties' performance of their obligations under this Agreement, the Tariff or the Construction Standards or as a result of the Licensee's use of the Support Structures ("company Confidential Information"). The Licensee agrees to use company Confidential Information solely for the purpose of facilitating performance of the services contemplated in this Agreement, the Tariff and the Construction Standards. The Licensee will protect the confidentiality of company Confidential Information to the same degree that the Licensee protects the confidentiality of its own confidential information which, in any event, shall not be less than a reasonable degree of care. Furthermore, the Licensee shall not use or permit use of company Confidential Information for competitive purposes nor will, without the prior written consent of the company, it disclose or permit its disclosure to any third parties except to contractors authorized pursuant to the Tariff and then, only for the purposes of facilitating the performance of services contemplated in this Agreement, the Tariff and the Construction Standards.
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251.
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The CCTA strongly opposed any possibility of any sharing of a licensee's confidential information with any of the other companies. The CCTA submitted that there is no need for such disclosure and that it should not be permitted. The CCTA also submitted that the level of confidentiality protection of a licensee's information that a company assumes in section 13.1 should be the same as that which a licensee assures with respect to a company's information in section 13.2.
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252.
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The CCTA proposed that the second, third and fourth sentences of s.13.1 be replaced with the following:
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The company shall hold in confidence Licensee Confidential Information in accordance with the company's Terms of Service and shall protect the confidentiality of Licensee Confidential Information to the same degree or greater as the company protects the confidentiality of its own confidential information which, in any event, shall not be less than a reasonable degree of care. The company shall not disclose Licensee Confidential Information to any other person, including any other Canadian carrier or distribution undertaking, except as may be expressly permitted under this Agreement. Furthermore, the company will not use or disseminate or permit dissemination of Licensee Confidential Information within the company or to any other person for competitive purposes. Any Licensee Confidential Information provided by the company to any person shall be provided to such person upon the agreement of such person to protect the confidentiality of such Licensee Confidential Information to the same degree that the company protects the confidentiality of Licensee Confidential Information pursuant to this section 13.
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253.
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The Commission is of the view that the CCTA's proposed wording would afford a licensee a measure of protection that is more in line with what the licensee must provide the company. The Commission directs that section 13.1 be amended by substituting the second, third and fourth sentences with the CCTA's proposed wording.
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254.
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The CCTA proposed the addition of a section 13.4 which would specify that the obligations in article 13 would not be subject to limitations of liability. This would ensure that proper care is taken to protect confidentiality of information and ensure that it was not used for anti-competitive purposes.
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255.
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The CCTA proposed the following wording for section 13.4: "Notwithstanding any other provision of this agreement, the obligations set out in this Article 13 are not subject to any limitation of liability, whether set out in this agreement, the tariff, the company's terms of service or otherwise."
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256.
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The Commission is of the view that the provisions of the tariff and the SSA, as approved, are sufficient to protect licensees. In the Commission's view, it would not be appropriate to adjust limitations of liability for the purposes the CCTA set out. Accordingly, the Commission denies the CCTA's proposed section 13.4.
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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: http://www.crtc.gc.ca
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