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Decision CRTC 2001-753
Ottawa, 13 December 2001
Reference: 8690-C12-03/01
To: Distribution list, PN 2001-99
and
Edward Earle
City Solicitor - Legal services
City of Toronto
55 John Street, Metro Mall
Toronto, Ontario
M5V 3C6
Dear Sir or Madam:
Subject: City of Toronto request to amend Public Notice CRTC 2001-99
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1.
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With respect to a request by the City of Toronto for an amendment to Public Notice CRTC 2001-99, Terms and conditions of existing agreements for access to municipal property, dated 31 August 2001, by majority decision, the Commission denies the City of Toronto's request, for the reasons set out below.
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2.
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The scope of the proceeding, as set out in PN 2001-99, is as follows:
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In this proceeding, the Commission will consider, given the framework set out in sections 43(1) to 43(4) and any other relevant provisions of the [Telecommunications] Act, and the principles laid out in Decision 2001-23 [Ledcor/Vancouver - Construction, operation and maintenance of transmission lines in Vancouver, dated 25 January 2001,] what circumstances, if any, would justify an intervention by the Commission to alter the terms of an existing contract between a carrier and a municipality for access to municipal rights-of-way.
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3.
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The release of PN 2001-99 was prompted by the filing of a Part VII application by AT&T Canada Corp. regarding its access agreement with the City of Toronto. AT&T Canada requested that the Commission replace the provisions of its access agreement with the City of Toronto with terms and conditions that are consistent with the principles set out in Decision 2001-23. The City of Toronto's preliminary position, in that Part VII proceeding, is that the Commission lacks the jurisdiction under the Telecommunications Act to interfere with an existing agreement for access to municipal property.
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4.
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The Commission issued PN 2001-99 to consider the general issue of the circumstances, if any, that would justify intervention by the Commission with respect to an existing access agreement.
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5.
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As part of the original Part VII application by AT&T Canada, the current access agreement between the City of Toronto and AT&T Canada was filed with the Commission and placed on the public record. That contract was also placed on the record of the PN 2001-99 proceeding.
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6.
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In a letter dated 9 October 2001, the City of Toronto asked the Commission to modify PN 2001-99 so that:
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- The City of Toronto - AT&T Canada agreement would be removed from the record of the PN 2001-99 proceeding; and
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- The Commission expressly prohibit any submissions on the extent to which any particular agreement may or may not correspond to the terms set out by the Commission in Decision 2001-23.
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7.
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The City of Toronto submitted that the contents of the current agreement between the City and AT&T Canada were in no way relevant to the preliminary issue that the Commission was attempting to resolve through the PN 2001-99 proceeding.
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8.
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In the City of Toronto's view, placing the agreement on the record of the PN 2001-99 proceeding could be interpreted as suggesting that the appropriateness of intervention by the Commission depends on the substantive terms and conditions of the agreement. In the City of Toronto's view, it will be a hotly contested point whether the Commission is even in a legal position to review the substantive terms of such existing agreements.
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9.
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Furthermore, in the City of Toronto's view, other parties may be encouraged to place their own agreements on the record. According to the City of Toronto, this would take the process beyond its scope and into a re-arguing of Decision 2001-23.
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10.
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The Commission directed the City of Toronto to serve a copy of its request on all interested parties to the PN 2001-99 proceeding. All parties were given an opportunity to file comments on the City of Toronto's request.
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11.
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A number of municipalities and organizations representing municipalities filed comments supporting the City of Toronto's request. The Commission also received comments from a number of telecommunications companies and industry associations representing cable companies, who opposed the City of Toronto's request.
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Determination
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12.
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The request by the City of Toronto for amendments to PN 2001-99 would, if granted, place restrictions on the kind of evidence that parties could file with the Commission and what submissions parties could make to the Commission in this proceeding. The Commission is of the view that it should, in general, be cautious about restricting the scope of the evidence and submissions that parties are permitted to provide to the Commission.
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13.
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In this case, the Commission believes that parties should be able to illustrate, by filing actual agreements, the circumstances in which they feel it would be appropriate or inappropriate for the Commission to intervene. Such agreements may provide the Commission with a factual context to assist it in its decision-making process. In the absence of existing contracts on the record, the Commission might be forced to make its decision in a factual vacuum.
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14.
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The Commission notes that the PN 2001-99 proceeding will not be deciding whether the terms and conditions of the AT&T Canada - City of Toronto agreement should be modified or indeed whether the terms and conditions of any particular agreement should be modified. The purpose of the PN 2001-99 proceeding is to provide parties with an opportunity to comment generally on what circumstances, if any, would justify Commission intervention with respect to an existing agreement.
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15.
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The purpose of placing the AT&T Canada - City of Toronto contract on the record, and of accepting other contracts on the record, is to allow parties to provide the Commission with some factual context for their arguments. As a result, they would be able to provide the Commission with solid examples that would illustrate their submissions.
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16.
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The fact that the issue of whether the Commission has jurisdiction to vary the terms of an existing agreement will be a sharply contested one in the PN 2001-99 proceeding does not mean that the Commission should prevent parties from using existing agreements to illustrate their jurisdictional and policy arguments or to provide a factual framework for their submissions.
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17.
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Therefore, for the reasons set out above, by majority decision, the Commission denies the City of Toronto's request for amendments to PN 2001-99.
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18.
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In order to allow the parties sufficient time to make their submissions in the PN 2001-99 proceeding, the Commission modifies the procedure set out in PN 2001-99 as follows:
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- Parties wishing to comment must submit those comments to the Commission, serving a copy of their submission on all parties on the interested parties list, by 18 January 2002.
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- Parties may file reply comments with the Commission, serving a copy on those parties who filed comments, by 15 February 2002.
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- Parties are reminded that submissions longer than five pages should include a summary.
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- Where a document is to be filed or served by a specific date, the document must be actually received, and not merely sent, by that date.
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Yours sincerely,
Ursula Menke
Secretary General
cc: James Wilson, CRTC (819) 997-3875
Michael Cawood, CRTC (819) 997-3485
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Dissenting opinion of Commissioner Jean-Marc Demers
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The City of Toronto filed an interlocutory application seeking the removal from the record of this proceeding a copy of a contract between it and AT&T placed on the record by the Commission when the proceeding began. The City also requested that the Commission, in this proceeding, "expressly prohibit any submissions on the extent to which any particular agreement may or may not correspond to the terms set out by the Commission in Decision 2001-23" (paragraph 6 of the majority opinion).
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Decision 2001-23 concerned a disagreement between the City of Vancouver (Vancouver) and Ledcor Industries Limited in which Ledcor claimed that it was unable to obtain consent from Vancouver to access certain municipal properties. Accordingly, there was no contract between Vancouver and Ledcor (Decision 2001-23 dated 25 January 2001). This application, on the other hand, is part of a proceeding that involves existing contracts (introductory paragraph of Public Notice CRTC 2001-99 dated 31 August 2001).
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With respect for the opposite opinion of the majority, I would have essentially allowed Toronto's interlocutory application.
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I believe that a generic proceeding without this type of contract or other similar terms and conditions would permit a better examination of what circumstances, if any, that would justify an intervention by the Commission to alter the terms and conditions of an existing contract between a carrier and a municipality for access to municipal property (paragraph 3 of PN 2001-99).
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In my view, studying a case in which the contract is already subject to a request for modification runs the risk of opening a debate that focuses too much on the specific clauses and could, therefore, lead the Commission to make an overly narrow policy statement. I believe that a broader, more forward-looking debate would better serve all interested parties, in particular users of Canadian telecommunications services.
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Date Modified: 2001-12-13
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