ARCHIVED - Telecom Costs Order CRTC 2002-5

Telecom Costs Order CRTC 2002-5

Ottawa, 24 April 2002

Action Réseau Consommateur, the Consumers' Association of Canada, Fédération des associations coopératives d'économie familiale and the National Anti-Poverty Organization application for costs - Public Notice CRTC 2001-110

Reference: 4754-204 and 8669-C12-01/01

Background

By letter dated 31 January 2002, Action Réseau Consommateur (ARC), Consumers' Association of Canada, Fédération des associations coopératives d'économie familiale and the National Anti-Poverty Organization (ARC et al.) applied for an award of costs in respect of their joint intervention in the proceeding initiated by Conditions of service for wireless competitive local exchange carriers and for 9-1-1 services offered by wireless service providers, Public Notice CRTC 2001-110, 31 October 2001 (PN 2001-110).

Position of parties

ARC et al. submitted that they met the criteria for the award of costs set out in section 44(1) of the CRTC Telecommunications Rules of Procedure (the Rules). In this respect, ARC et al. noted that they represent a body of subscribers that has a clear interest in the proceeding, that they have participated responsibly and that they have contributed to a better understanding of the issues through their comments in the proceeding.

Given the amount of costs in question ($1,394.66) and the straightforward nature of the bill of costs, ARC et al. requested that their costs be fixed as part of the costs award determination, so as to dispense with the need for a separate taxation process.

ARC et al. also submitted that the appropriate respondents in this case include wireless service providers participating in this proceeding, preferably through their association, the Canadian Wireless Telecommunications Association (CWTA) for reasons of administrative simplicity.

A copy of the application was served on all interested parties.

In its submission dated 4 February 2002, CWTA noted that it was a registered interested party, but did not participate in the proceeding. In that regard, it therefore stated that there is no cause to name CWTA as a respondent for costs more than any other interested party that did not participate. With respect to administrative simplicity, the CWTA stated that naming it as a respondent for costs would increase the administrative burden on both the CWTA and its members. CWTA stated that it has no mechanism in place to recover or determine the appropriate distribution for such costs. CWTA submitted that granting ARC et al.'s request would simply shift the administrative burden from ARC et al. and the Commission to CWTA. CWTA therefore submitted that it is more appropriate that costs be paid by specific participants in the proceeding.

In a submission dated 8 February 2002, Aliant Telecom Inc., Bell Canada, MTS Communications Inc. and Saskatchewan Telecommunications (the Companies) did not oppose the applicant's entitlement or the amount claimed. However, the Companies submitted comments in relation to service of costs information and who should pay ARC et al.'s costs. The Companies stated that recently, applicants have developed the practice of not serving proposed respondents with the CRTC forms setting out the detailed costs information when applying for costs using the streamlined process pursuant to New procedure for telecom costs awards, Telecom Public Notice CRTC 98-11, 15 May 1998 (PN 98-11).

The Companies submitted that regardless of whether the normal or streamlined approach is used, applicants must serve detailed costs material on the respondents.

The Companies also submitted that, given their limited interest in the above-noted proceeding, they are not proper respondents. The proceeding arose from an application made by Microcell Telecommunications Inc. (Microcell). The issues primarily related to wireless competitive local exchange carriers (CLECs). The Companies' interest in the proceeding was secondary. The Companies' participation was directed towards assisting the Commission rather than advancing its own interest.

In its submission dated 13 March 2002, Microcell disagreed with the Companies' submission that PN 2001-110 arose from an application made by Microcell. Microcell stated, among other things, that its Part VII application focused on the obligations of the incumbent local exchange carriers (ILECs) to provide wireless E9-1-1 access services to wireless carriers. Nowhere did it refer to or request relief in regard to the obligations of the wireless carriers themselves. By contrast, PN 2001-110 focused on obligations of wireless carriers including whether they should be required to offer wireless E9-1-1 and whether they should further be required to enter their subscribers records into the ILEC 9-1-1 database.

Microcell also disagreed that the Companies had no significant interest in the proceeding. Microcell stated that the wireless equal-access portion of PN 2001-110 arose due to the failure of the CRTC Interconnection Steering Committee's Network Operations Working Group (NOWG) to reach consensus on the technical feasibility of wireless equal access, a situation in which the Companies had a major role, and a major interest, in creating.

Microcell noted that it has never objected to the provision at paragraph 26 of General Tariff approved on an interim basis with modifications for Microcell Connexions Inc., Order CRTC 2000-831, 8 September 2000 (Order 2000-831), stating that its requirement to provide access is subject to Microcell's ability to provide equal access and the ability of the inter-exchange provider to provide the service. Microcell also noted that it has never objected to the provision at paragraph 34 of Order 2000-831 directing the NOWG to investigate certain issues related to technical feasibility of wireless equal access. Microcell added that it has never submitted an application to the Commission to change these requirements, and is already operating as a CLEC in two provinces in adherence with these requirements.

Finally, Microcell stated that if there was anything that prompted the Commission to issue PN 2001-110, it was the refusal on the part of Bell Canada and all other ILECs, in defence of their vested dominance of the local telecommunications market, to engage in any meaningful discussion of the terms and conditions under which a wireless carrier may operate in that market.

Service of detailed costs material on the respondents

As described above, the Companies did not oppose the applicant's entitlement or the amount claimed in the present case. However, in their submissions, the Companies expressed the concern that recently, applicants have developed the practice of not serving proposed respondents with the Commission's forms that set out the detailed costs information when applying for costs using the streamlined process pursuant to PN 98-11.

The Commission is of the view that the concerns expressed by the Companies are well founded. Indeed, although parties who are served with a copy of a costs application always have the possibility to get a copy of the detailed costs information from the Commission, the procedure established in PN 98-11 should be followed in all cases in order to properly protect the procedural rights of potentially affected parties.

Accordingly, the Commission reminds parties that when applying for costs using the streamlined process, they must comply with all the requirements stated in PN 98-11.

More particularly, parties must file a summary of the fees and disbursements being claimed with their costs application. To this end, applicants are expected to use "Form V - Summary of Fees and Disbursements" of the Commission Legal Directorate's Revised Guidelines for the Taxation of Costs, dated 15 May 1998.

Commission determinations

The Commission considers that ARC et al. meets the criteria for an award of costs set out in section 44(1) of the Rules.

The Commission is of the view that this is an appropriate case in which to dispense with taxation and fix the costs in accordance with the streamlined procedure set out in PN 98-11.

The Commission is also of the view that the amount claimed by ARC et al. was reasonably and necessarily incurred and should be allowed.

The issues addressed in PN 2001-110 related in large part to the terms and conditions of service for wireless local exchange carriers. They also related to the provision of 9-1-1 services by mobile cellular service providers, and to other ancillary questions.

The Commission is of the view that most of these issues directly relate to Microcell's commercial and regulatory actions to operate as a wireless local exchange carrier.

Given this, and considering the relatively small amount of costs at issue, the Commission is of the view that Microcell is the proper respondent for costs in the present case.

Direction as to costs

The Commission approves the application by ARC et al. for an award of costs in respect of PN 2001-110. Pursuant to section 56(1) of the Telecommunications Act, the Commission fixes the amount payable at $1,394.66:

Legal counsel fees

Ms. Philippa Lawson

$579.60

Consultant fees

Mr. Bill Harper

$815.06

The Commission directs that the costs awarded and fixed herein be paid forthwith by Microcell.

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