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Telecom Decision CRTC 2003-52
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Ottawa, 1 August 2003
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Procedural determination in the Competitor Digital Network Access service proceeding with respect to an application made by the Canadian Cable Television Association
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Reference: 8661-C12-10/02, 8638-C12-61/02, 8740-B2-6621/01, 8740-T66-0063/02 and 8740-T66-0079/02
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The Commission directs Cogeco Cable Canada Inc., Bragg Communications Inc. carrying on business as EastLink, Shaw Communications Inc., Rogers Cable Inc. and Vidéotron Télécom ltée to respond to two Commission supplemental interrogatories by 2 September 2003.
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Background
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1.
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In Regulatory framework for second price cap period, Telecom Decision CRTC 2002-34, 30 May 2002 (Decision 2002-34), the Commission required Aliant Telecom Inc., Bell Canada, MTS Communications Inc., Saskatchewan Telecommunications (collectively, Bell Canada et al.) and TELUS Communications Inc. (TELUS) (all of which are collectively referred to as the incumbent local exchange carriers, or the ILECs) to develop a Digital Network Access (DNA) service for competitor telecommunications service providers. In Competitor Digital Network Access service proceeding, Telecom Public Notice CRTC 2002-4, 9 August 2002 (Public Notice 2002-4), the Commission established a proceeding to consider both policy and tariffing issues regarding the implementation of the Competitor Digital Network Access service (CDNA service) (the CDNA proceeding).
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2.
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The process set out in Public Notice 2002-4 allowed parties to ask interrogatories to the ILECs on their cost studies. By letter dated 21 August 2002, GT Group Telecom Services Corp., now LondonConnect Inc. (LondonConnect), requested that the scope of the interrogatory process be broadened so that parties could address interrogatories to all participants in respect of all aspects of the case put forward. LondonConnect also submitted that the Commission should obtain supply information from registered non-dominant carriers, including hydro company affiliates. By letter dated 17 September 2002, the interrogatory process was expanded to allow all parties to address interrogatories to any other party with respect to matters relevant to the scope of the proceeding.
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3.
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On 11 October 2002, Bell Canada et al. addressed interrogatories to a number of competitor service providers, including Cogeco Cable Canada Inc., EastLink and Shaw Communications Inc. (collectively, Cogeco et al.).
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4.
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Cogeco et al. refused to file responses to Bell Canada et al.'s interrogatories, stating that the process did not permit parties to ask interrogatories of non-parties.
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5.
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By a Commission staff letter dated 21 February 2003, Cogeco et al. were requested to respond to Bell Canada et al.'s interrogatories by 14 March 2003. That letter noted that, by responding to Bell Canada et al.'s interrogatories, Cogeco et al. would provide information that could prove helpful to the Commission in this proceeding. The letter stated further that, in the circumstances, the anticipated benefit from such responses outweighed concerns regarding the imposition of a regulatory burden on persons that were not registered as parties in the CDNA proceeding. In addition, Commission staff addressed supplemental interrogatories at that time to various parties to the CDNA proceeding.
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The application
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6.
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By letter dated 3 March 2003, the Canadian Cable Television Association (the CCTA) on behalf of Cogeco et al. requested that the Commission determine that Cogeco et al. were not required to respond to Bell Canada et al.'s 11 October 2002 interrogatories because Cogeco et al. were not registered as parties to the proceeding.
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7.
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The CCTA argued that the 21 February 2003 Commission staff letter determination was inconsistent with the process set out by the Commission in Public Notice 2002-4. The CCTA stated that the Commission staff letter in effect overturned a 17 September 2002 Commission staff ruling rejecting a request by LondonConnect that all carriers, not only those registered as parties to the proceeding, be directed to provide comments and that parties be permitted to address interrogatories to all carriers.
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8.
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The CCTA argued that the determination in the 21 February 2003 Commission staff letter was inconsistent with section 37 of the Telecommunications Act (the Act) as only the Commission can require a Canadian carrier to submit information and as the information in question had only been found to be useful but not necessary, as is required by the Act. The CCTA also argued that allowing parties to request information from non-parties on the basis that the information could prove useful would encourage fishing expeditions prejudicial to non-parties. The CCTA argued further that requiring Cogeco et al. to participate at this late stage of the proceeding, whether through the provision of interrogatory responses or as parties, would be unfair to them and would cause a substantial delay in the proceeding to the detriment of other parties.
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9.
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Comments were filed by Bell Canada et al. and by TELUS, each on 11 March 2003. Reply comments were filed by the CCTA on 13 March 2003.
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Position of parties
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10.
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Bell Canada et al. argued that the manner in which CDNA service is to be defined and rated depends to a considerable extent on the availability of competitive alternatives. The information at issue thus goes to the heart of the determinations to be made by the Commission in this proceeding.
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11.
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Bell Canada et al. argued that, as Canadian carriers with well established and growing networks of local transport facilities, Cogeco et al. were capable of supplying services in direct competition with Bell Canada et al.'s CDNA services and are themselves eligible customers for CDNA service. Bell Canada et al. stated that Cogeco et al. possess information relevant to key issues in the proceeding.
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12.
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Bell Canada et al. submitted that the central issue to be addressed by the Commission in dealing with the CCTA's request is to determine the means by which a complete record can be established with respect to the degree to which alternative sources of supply exist for each of the services at issue in the CDNA proceeding.
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13.
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TELUS stated that it agreed with the CCTA that the Commission should address the role, if any, of cable companies in the CDNA proceeding. TELUS submitted that the Commission should also consider the role, if any, in this proceeding of other non-traditional telecommunications service providers, such as hydro companies. TELUS argued that the information in question from both the large cable companies and utilities is critical evidence required by the Commission to make findings about the essentiality and near-essentiality of the facilities at issue in this proceeding.
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14.
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Bell Canada et al. and TELUS submitted that the Commission could ask its own interrogatories of Cogeco et al. Alternatively, the Commission could make Cogeco et al. parties to the proceeding and direct them to answer Bell Canada et al.'s interrogatories.
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15.
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In reply, the CCTA submitted that the record of this proceeding was sufficiently complete to allow the Commission to make findings with respect to alternative supply conditions for CDNA and that interrogatory responses showed that Cogeco et al. were not significant alternative providers of CDNA facilities. The CCTA argued that should the Commission determine that information from Cogeco et al. were to be necessary, the Commission must also address interrogatories to other non-dominant carriers, particularly hydro utilities. The CCTA further noted that Cogeco et al. would likely require at least 60 days to prepare interrogatory responses.
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Commission analysis and determination
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16.
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In its determination in the CDNA proceeding, the Commission will approve a final tariff for the CDNA service. The Commission will determine whether certain services and components provided under the DNA and inter-exchange service tariffs should be offered to competitors under the final CDNA tariff. The Commission notes that one important factor that it must consider in determining whether a service or component ought to be offered as part of the CDNA service, is the extent to which carriers self-supply or have competitive alternatives to the service or component in question. For example, the Commission stated in Decision 2002-34 that it required further information to assess the supply conditions of intra-exchange facilities in order to determine whether the intra-exchange component of the ILECs' DNA service should be included in the CDNA service.
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17.
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The supply conditions relating to a service are also an important factor in determining whether to characterize that service as a Category I Competitor Service or a Category II Competitor Service. The Commission notes that this characterization is necessary to establish service rates. For example, in TELUS Communications Inc. - Application with respect to the scope of Telecom Public Notice CRTC 2002-4, Telecom Decision CRTC 2002-75, 5 December 2002 (Decision 2002-75), the Commission stated that the CDNA proceeding is dealing with the issue of whether the CDNA service should include digital inter-exchange and channelization components of the ILECs DNA and inter-exchange services. The Commission further stated that in establishing rates for any additional service or component that is included in the CDNA service, the Commission must determine whether the services or components in question fall within Category 1 or Category II Competitor services.
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18.
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In light of the foregoing, the Commission considers that, in the CDNA proceeding, it must assess the supply conditions relating to services and components offered under the DNA, CDNA and inter-exchange service tariffs. The Commission notes that information on the record of this proceeding indicates that various competitors use cable company telecommunications facilities as an alternative to ILEC facilities provided under the DNA. The Commission considers that the provision of information by Cogeco et al. regarding the extent to which such telecommunications facilities are used by competitors as substitutes for the access and intra-exchange component of the ILECs' DNA service is necessary for the Commission to properly assess the supply conditions for these components of the DNA service. The Commission therefore finds that this information is necessary in order for it to be in a position to make its determinations in the CDNA proceeding. Accordingly, the Commission requires that Cogeco et al. respond to the two supplemental interrogatories set out below.
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19.
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The Commission notes that the interrogatories addressed by Bell Canada et al. to Cogeco et al. go beyond what the Commission requires for the purpose of examining the issues in this proceeding. For example, some interrogatories seek information regarding the cable companies' service offerings in general as well as their network structure, and other interrogatories seek general information regarding capital expenditures by the cable companies. In addition, certain interrogatories seek the opinions of the cable companies on specific statements made by various parties in the CDNA proceeding. The Commission therefore will not require Cogeco et al. to respond to Bell Canada et al.'s interrogatories.
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20.
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The Commission also notes that Rogers Wireless Inc. (RWI) and Vidéotron Télécom are parties to the proceeding initiated by Public Notice 2002-4. Vidéotron Télécom and RWI, on behalf of Rogers Cable, filed responses to Bell Canada et al.'s interrogatories. However, the supplemental interrogatories contained in the Commission staff letter dated 21 February 2003 were not addressed to Rogers Cable and Vidéotron Télécom. Accordingly, the Commission directs Rogers Cable and Vidéotron Télécom to respond to the two supplemental interrogatories set out below in order to ensure a complete record and to clarify certain responses to Bell Canada et al.'s interrogatories.
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21.
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In the Commission's view, the record to date suggests that the facilities of non-dominant carriers other than Cogeco et al., Rogers Cable and Vidéotron Télécom, such as hydro companies, that are not parties to the proceeding are less important alternatives to the ILECs' DNA services. In the Commission's view, more detailed information regarding the alternative supply by such other non-dominant carriers is not necessary for the Commission's purposes in this proceeding.
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Order
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22.
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In light of the foregoing, the Commission considers that the Canadian carriers identified below are in possession of information that is necessary for the purpose of the CDNA proceeding. The Commission therefore directs Bragg Communications Inc. carrying on business as EastLink, Cogeco Cable Canada Inc., Shaw Communications Inc., Rogers Cable Inc., and Vidéotron Télécom ltée to provide their responses to the two supplemental interrogatories below, serving copies (abridged where appropriate) on all parties to this proceeding, no later than 2 September 2003. The Commission notes that these interrogatories refer to electronic tables that will be sent to each company separately.
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23.
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First supplemental interrogatory:
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· Provide the information requested below in hard copy and in electronic form,
using Competitor-Table 1006, separately for each province.
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· Provide, by ILEC exchange name, the number of circuits leased to
telecommunications service providers that did not cross ILEC exchange
boundaries and the associated transmission speeds (that is, circuits that
would be "access" or "intra-exchange" circuits if they had been provided by an
ILEC).
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Note: In addition, identify the Band with which each exchange is associated. If an exchange has more than one wire centre area and those areas are assigned to different Bands, assign the exchange to the highest Band (e.g. A, not B).
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24.
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Second supplemental interrogatory:
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· Provide the information requested below in hard copy and in electronic form,
using Competitor-Table 1007, separately for each ILEC serving territory.
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· For each exchange with more than one wire centre area, provide the
information requested below by wire centre area for circuits that the company
leased to telecommunications service providers:
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(a) the number of circuits that do no cross ILEC wire centre area boundaries;
and
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(b) the number of circuits that cross wire centre area boundaries.
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Note: If a circuit crosses ILEC wire centre area boundaries, count that circuit in each wire centre, identifying each wire centre area by name.
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25.
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All documents to be filed must actually be received, and not merely sent, by 2 September 2003.
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Secretary General
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This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca
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Date Modified: 2003-08-01