ARCHIVED - Telecom Costs Order CRTC 2002-14

Telecom Costs Order CRTC 2002-14

Ottawa, 4 October 2002

Tatlayoko Think Tank application for costs - Public Notice CRTC 2001-47

Reference: 8663-C12-04/01 and 4754-202

1.

By letter dated 17 December 2001, Tatlayoko Think Tank (TTT et al.) applied for costs with respect to their participation in the proceeding initiated by Framework for the expansion of local calling areas and related issues, Public Notice CRTC 2001-47, 27 April 2001 (the PN 2001-47 proceeding) and requested that the Commission fix their costs at $8,379.00 consisting of $1,453.50 for consultant fees (Ms. Dale Kerr); $6,754.50 for consultant fees (Mr. John Kerr); and $171.00 for analyst fees.

Position of parties

2.

TTT et al. submitted that they had met the criteria for an award of costs set out in subsection 44(1) of the CRTC Telecommunications Rules of Procedure (the Rules) because they represent 20 individuals, businesses and organizations from across British Columbia (B.C.) who are either actual or potential rural subscribers whose interests will be affected by the outcome of the proceeding; they participated responsibly in the PN 2001-47 proceeding; and they contributed to a better understanding of the issues by presenting the viewpoint of rural B.C. subscribers.

3.

TTT et al. submitted that the appropriate respondent in this case is TELUS Communications Inc. (TCI) as, in the applicant's view, it had the most significant interest in the outcome of TTT et al.'s participation in the proceeding.

4.

In a letter dated 21 December 2001, Bell Canada, on behalf of itself and MTS Communications Inc., (Bell Canada/MTS) noted that, based on information filed by the applicant in this proceeding, TTT et al. represented, among others, individual businesses, business organizations and public organizations. Bell Canada/MTS argued that, consistent with previous Commission determinations, such entities should not be entitled to costs because they are sufficiently funded or have adequate commercial interest to motivate their participation. Bell Canada/MTS submitted that TTT et al.'s claim for costs should be reduced in proportion with the level of its membership that are not entitled to claim costs.

5.

Bell Canada/MTS further submitted that because some of TTT et al.'s submissions dealt with matters that Bell Canada/MTS believed were not relevant to the proceeding, such as quality of service to rural areas and universality, a moderate reduction in the costs claimed would be appropriate.

6.

Bell Canada/MTS agreed with TTT et al. that TCI should be the respondent in this matter.

7.

In a letter dated 24 December 2001, Télébec ltée (now Société en commandite Télébec (Télébec)) and Northern Telephone Limited (now Northern Telephone Limited Partnership (Northern)) expressed their support for Bell Canada/MTS' position.

8.

In a letter dated 7 January 2002, TCI stated that it did not object to an award of costs to TTT et al. but considered that the costs claimed were excessive. Specifically, TCI submitted that the hourly fee of $75.00 claimed should, at a minimum, be reduced to the rate of $45.00 per hour allowed with respect to the applicant in Subject: Service to high-cost serving area proceeding - Telecom Public Notice CRTC 97-42, Taxation Order CRTC 2000-8, 26 July 2000. TCI also submitted that the costs allowed should take into account the fact that only one party posed interrogatories to TTT et al., and that
TTT et al. had not submitted comments in the PN 2001-47 proceeding.

9.

TCI disagreed that it should be the only respondent because, in its view, the PN 2001-47 proceeding was a policy proceeding and other service providers would be impacted by its outcome. Accordingly, TCI submitted that all service providers that actively participated in this proceeding should be respondents, and that costs should be paid in proportion to their operating revenues from telecommunications activities.

10.

In its letter of reply of 14 January 2002, TTT et al., among other things, disagreed with Bell Canada/MTS's submission that its costs should be reduced in proportion to the level of TTT et al.'s membership that, in Bell Canada/MTS' view, was not eligible for costs. TTT et al. submitted that organizations and businesses do not have the time, nor the financial resources, to participate in Commission proceedings. TTT et al. argued that they were the only party representing the interests of rural/remote regions in B.C.

11.

Contrary to Bell Canada/MTS's submission, TTT et al. argued that they participated extensively and responsibly in this proceeding. TTT et al. also disagreed with Bell Canada/MTS' submission that TTT et al. had addressed irrelevant matters, arguing that the scope of the proceeding was very broad.

Commission analysis and determination

12.

The Commission notes that in order to be awarded costs, an applicant is required to satisfy the criteria set out in subsection 44(1) of the Rules, namely that the applicant (a) has, or is representative of a group or class of subscribers that has, an interest in the outcome of the proceeding of such a nature that the intervener or group or class of subscribers will receive a benefit or suffer a detriment as a result of the order or decision resulting from the proceeding; (b) has participated in a responsible way; and (c) has contributed to a better understanding of the issues by the Commission.

13.

The Commission agrees with Bell Canada/MTS that some of the entities represented by TTT et al. were organizations that generally are not awarded costs because, among other things, they have a sufficient commercial motive to justify their participation or participation in Commission proceedings is one of their recognized functions. However, given that TTT et al. also represented residential B.C. rural subscribers in the PN 2001-47 proceeding, the Commission finds that TTT et al. has satisfied the first criterion set out in subsection 44(1) of the Rules.

14.

The Commission further finds that TTT et al. participated responsibly in this proceeding, and contributed to a better understanding of the issues by bringing to the Commission's attention the viewpoint of B.C. rural subscribers.

15.

In light of the above, the Commission finds that TTT et al. has satisfied the criteria set out in subsection 44(1) of the Rules.

16.

The Commission considers that this is an appropriate case in which to dispense with taxation and fix costs in accordance with the streamlined procedure set out in New procedure for Telecom Costs Awards, Telecom Public Notice CRTC 98-11, 15 May 1998.

17.

The Commission is not persuaded by Bell Canada/MTS' submission that the applicant's claim for costs should be reduced in proportion to the level of membership that is not entitled to claim costs. As noted above, the Commission is satisfied that TTT et al.'s representation was not limited to such entities. Given that the applicant also represented residential rural B.C. subscribers in this proceeding, the Commission considers that it would not be appropriate to reduce TTT et al.'s claim for costs.

18.

With respect to Bell Canada/MTS' submission that TTT et al.'s costs be moderately reduced to the extent TTT et al.'s comments were not relevant, the Commission notes that the scope of the PN 2001-47 proceeding was broad. The Commission also considers that the issues identified by Bell Canada/MTS as irrelevant, such as quality of service to rural areas and universality, were, in fact, related to the subject matter of the proceeding. Accordingly, the Commission does not consider that TTT et al.'s participation in this proceeding justifies a reduction in the costs to be recovered.

19.

The Commission is not persuaded by TCI's submission that the costs should be reduced because only one party posed interrogatories to TTT et al. and that TTT et al. did not file comments. The Commission notes that TTT et al. filed evidence, interrogatories and reply comments in this proceeding. In the circumstances, the Commission considers that TTT et al.'s participation does not warrant a reduction in its costs.

20.

The Commission notes TTT et al. claimed 17 hours in respect of Ms. Dale Kerr and 79 hours in respect of Mr. John Kerr. In both cases, the claims were based on an hourly rate of $75.00. In the Commission's view, Ms. Dale Kerr and Mr. John Kerr are in-house consultants. The Commission notes that the Legal Directorate's Guidelines for the Taxation of Costs (the Guidelines) contemplate that in-house consultants be reimbursed on a daily rate basis, at a rate of $400.00 per day. The Commission considers that this is the appropriate rate to apply in the circumstances of this case. Based on the number of hours claimed, and a benchmark of one full day being equivalent to seven hours as set out in the Guidelines, the Commission has revised the costs in respect of the two consultants (inclusive of GST and PST) as follows:

$1,107.42 in respect of Ms. Dale Kerr; and $5,146.28 in respect of Mr. John Kerr.

21.

The Commission finds that the amounts claimed, as revised above, were reasonably and necessarily incurred, and should be allowed.

22.

With respect to the issue of the appropriate respondents, given the small size of the costs award in this case, and because TTT et al.'s participation in this proceeding largely addressed the needs of rural B.C. subscribers, the Commission finds that TCI is the appropriate respondent.

Direction as to costs

23.

The Commission approves TTT et al.'s application for costs with respect to its participation in the PN 2001-47 in this proceeding.

24.

Pursuant to subsection 56(1) of the Telecommunications Act, the Commission fixes the costs at $6,424.70.

25.

The Commission directs that the award of costs to TTT et al. be paid forthwith by TCI.

Secretary General

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