Telecom Decision CRTC 2003-53
Ottawa, 12 August 2003
See also: 2003-53-1
Conditions of service for wireless competitive local exchange carriers and for emergency services offered by wireless service providers
Reference: 8669-M16-01/01 and 8669-C12-01/01
In 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, the Commission sought comments on the terms and conditions under which a wireless competitive local exchange carrier (wireless CLEC) should be permitted to provide local exchange service. The Commission also sought comments on issues relating to the provision of 9-1-1 services by wireless service providers (WSPs).
In this Decision, the Commission confirms that wireless CLECs are required to provide equal access for long distance calling with respect to mobile originating calls, subject to an Interexchange Carrier's willingness to interconnect in areas served by the wireless CLEC. The Commission is suspending the obligation of wireless CLECs to provide equal access with respect to mobile terminating calls and mobile call forwarded calls. The Commission also confirms that incumbent local exchange carriers (ILECs) are relieved of their obligation to interconnect their interexchange networks with a wireless CLEC for the purpose of carrying toll calls originated by the end-users of the wireless CLEC.
With respect to public safety obligations, the Commission is continuing to require wireless CLECs to provide wireless Enhanced 9-1-1 (wireless E9-1-1) in all areas where they operate as CLECs, and where wireless E9-1-1 network access services are available. In this Decision, the Commission finds that it would not be appropriate to continue to require wireless CLECs to enter subscriber records in Automatic Location Identifier (ALI) databases. Therefore, wireless carriers no longer have the option to operate as wireless CLECs by including subscriber records in ALI databases.
For competitive equity vis-ŕ-vis wireline local exchange carriers, the Commission will allow wireless carriers to operate as wireless CLECs in communities where either no 9-1-1 service is offered or where only basic 9-1-1 service is offered. In such communities, the wireless CLEC must provide a level of 9-1-1 service that is comparable to that provided by the ILEC.
To enhance public safety, the Commission is requiring WSPs to provide wireless E9-1-1 service to their subscribers in communities where wireless E9-1-1 network access service is available from an ILEC.
The Commission also directs WSPs and wireless CLECs to maintain toll-free telephone access to and continuous staffing (i.e., 24 hours per day, seven days per week) of at least one of their operations centres, in order to promptly assist authorized Public Safety Answering Point (PSAP) personnel seeking subscriber information in emergency situations. Furthermore, all WSPs and wireless CLECs are required to provide subscribers with information regarding the availability, characteristics and limitations of the wireless emergency service that they provide.
Finally, the Commission has concluded that, with regards to mandated emergency services, WSPs and wireless CLECs should be afforded limitation of liability protection with respect to their end-users under section 31 of the Telecommunications Act that is consistent with the limitation of liability approved for the ILECs. The Commission has also found that a wireless carrier subscribing to an ILEC's wireless E9-1-1 network access service should enjoy inter-carrier limitation of liability protection comparable to that of the ILEC.
1. In Regulation of wireless services, Telecom Decision CRTC 94-15, 12 August 1994 (Decision 94-15), the Commission decided to refrain from exercising its powers under sections 25, 29 and 31 and subsections 27(1), (5) and (6) of the Telecommunications Act (the Act) in respect of the provision of cellular service and public cordless telephone service by Canadian carriers other than incumbent local exchange carriers (ILECs).
2. Subsequently, in Regulation of mobile wireless telecommunications services, Telecom Decision CRTC 96-14, 23 December 1996 (Decision 96-14), the Commission concluded that all public switched mobile voice services (other than those offered in-house by an ILEC) were or would be subject to competition sufficient to protect the interest of users. Accordingly, the Commission decided to refrain from exercising its powers under sections 24 (in part), 25, 29, 31 and subsections 27(1), (5) and (6) of the Act in respect to public switched mobile services provided by Canadian carriers other than by ILECs.
3. The regulatory regime established by Decision 96-14 was subsequently extended to public switched mobile voice services offered in-house by ILECs in a series of decisions:
- NBTel Inc. - Forbearance from Regulating Cellular and Personal Communications Services, Telecom Decision CRTC 98-18, 2 October 1998;
- Forbearance from Regulation of Mobile Wireless Services Provided by Municipally Owned Telephone Companies, Telecom Decision CRTC 98-19, 9 October 1998;
- Telecom Order CRTC 99-991, 13 October 1999;
- SaskTel - Transition to federal regulation, Decision CRTC 2000-150, 9 May 2000;
- and CRTC refrains from regulating O.N.Telcom's delivery of mobile wireless services, Order CRTC 2001-501, 29 June 2001.
4. In Local competition, Telecom Decision CRTC 97-8, 1 May 1997 (Decision 97-8), the Commission established the terms and conditions for local competition. In that decision, the Commission indicated that, among other things, competitive local exchange carriers (CLECs) would be required to provide equal access to inter-exchange service providers (IXSPs) and to provide 9-1-1 service. The Commission also indicated that its framework was intended to be technologically neutral:
This framework encourages efficient interconnection arrangements while remaining neutral in terms of technology. Thus, for example, should a wireless service provider (WSP) wish to become a competitive local exchange carrier (CLEC), it will be subject to the same terms and conditions set out in this Decision as wireline CLECs as long as it accepts the obligations applied to CLECs by the Commission in this Decision.
5. In Telecom Order CRTC 98-1, 7 January 1998 (Order 98-1), the Commission clarified Decision 97-8 regarding the obligations of wireless CLECs. Specifically, the Commission stated:
The Commission also considers that CLECs, including wireless CLECs, need only provide 9-1-1, MRS [ Message Relay Service] and equal access in the serving area or areas where they operate as a CLEC. Stentor's contention that customers of wireless CLECs should have access to these services wherever they roam, would impose a far greater obligation on wireless CLECs than on wireline CLECs, and would effectively prevent wireless providers from selecting their own CLEC serving areas. The Commission therefore finds that the imposition of such additional obligations on wireless CLECs would not be consistent with the intention of the Commission to establish a framework that is neutral in terms of technology.
6. On 3 May 2000, Microcell Telecommunications Inc. (Microcell Telecom) filed, for approval, a General Tariff on behalf of Microcell Connexions Inc. (Microcell Connexions) which proposed to operate as a CLEC in all exchanges where it had points of interconnection as a wireless service provider (WSP). In General Tariff approved on an interim basis with modifications for Microcell Connexions Inc., Order CRTC 2000-831, 8 September 2000, as corrected by Order CRTC 2000-831-1, 2 October 2000 (collectively, Order 2000-831), the Commission approved Microcell Connexions' proposed General Tariff, on an interim basis, subject to certain changes. In General Tariff approved on an interim basis with modifications for Clearnet PCS Inc., Order CRTC 2000-830, 8 September 2000, as corrected by Order CRTC 2000-830-1, 11 October 2000, the Commission also approved Clearnet PCS Inc.'s proposed General Tariff, on an interim basis, subject to the same changes that it made in Order 2000-831. In these Orders, the Commission also clarified the equal access and 9-1-1 service obligations of wireless CLECs.
7. In order to further clarify the regulatory framework for wireless carriers, which term includes wireless CLECs and WSPs as distinct subclasses, the Commission initiated the present proceeding via 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 (Public Notice 2001-110). In this Public Notice, the Commission sought comments on a wide range of topics, including appropriate terms and conditions to govern services offered by wireless CLECs, ILECs' associated interconnection obligations and on 9-1-1 services offered by WSPs.
The Public Notice 2001-110 proceeding
8. In Public Notice 2001-110, the Commission invited comments on a large number of specific issues relating to three broad areas of concern:
- Equal access obligations of wireless CLECs;
- Public safety obligations of wireless CLECs and WSPs; and
- Limitation of liability protection for WSPs.
9. The Commission made the following Canadian carriers parties to the Public Notice 2001-110 proceeding: Aliant Telecom Inc., Bell Canada, Bell Mobility Inc. (Bell Mobility), The Corporation of the City of Thunder Bay, Microcell Telecom, MTS Communications Inc., NorTel Mobility Inc., Northern Telephone Limited, Northwestel Inc., Prince Rupert City Telephone, Rogers Wireless Inc. (RWI), Saskatchewan Telecommunications and TELUS Communications Inc.
10. In addition, the following persons registered as interested parties to the proceeding: Mr. Bohdan Zabawskyj, Alberta E9-1-1 Advisory Association (AEAA), Canadian Wireless Telecommunications Association (CWTA), City of Calgary (Calgary), Communauté urbaine de Montréal (Montréal), Consumers' Association of Canada (CAC) and Action réseau consommateur (ARC), gouvernement du Québec, Greater Vancouver Regional District, GT Group Telecom Services Corp., l'Union des municipalités du Québec (UMQ), Lemay-Yates Associates Inc., Navigata Communications Inc., NBI/Michael Sone Associates, Ontario 9-1-1 Advisory Board (OAB), Primus Telecommunications Inc. (Primus), Simon Fraser University and View Communications Inc.
11. At the request of a number of parties, the Commission modified the process set out in Public Notice 2001-110 and permitted parties to file comments by 14 December 2001, first round reply comments by 17 January 2002 and second round reply comments by 28 January 2002.
12. The following parties filed comments on or before 14 December 2001: ARC, CAC and Fédération des associations coopératives d'économie familiale (collectively referred to as ARC et al.); AEAA; Aliant Telecom Inc., Bell Canada, MTS Communications Inc., Northwestel Inc. and Saskatchewan Telecommunications (collectively referred to as Bell Canada et al.); Bell Mobility; Microcell Telecom on behalf of Microcell Connexions and Microcell Solutions (collectively referred to as Microcell); Montréal and UMQ (collectively referred to as Montréal/UMQ); OAB; Primus; RWI; TELUS Communications Inc and TELE-MOBILE COMPANY (collectively referred to as TELUS); and Greater Vancouver Regional District on behalf of the B.C. 9-1-1 Service Providers Association (Vancouver).
13. The following parties filed first round reply comments: ARC et al.; AEAA; Bell Canada et al.; Bell Mobility; Microcell; OAB; RWI; and TELUS.
14. The following parties filed second round reply comments: ARC et al.; AEAA; Bell Canada et al.; Bell Mobility; Microcell; Montréal/UMQ; OAB; RWI; TELUS and Vancouver.
15. In addition to the submissions filed by registered parties, the Commission also received written submissions from the following: Central York Fire Services; Corporation of the County of Essex; County of Oxford; County of Elgin; London Police; Ontario Association of Fire Chiefs; Ontario Association of Chiefs of Police; and York Regional Police.
Equal access obligations of wireless CLECs
16. In Order 2000-831 in which the Commission clarified the obligations of wireless CLECs, the Commission stated, with respect to equal access:
23. The Commission considers that, consistent with the principle of end-user choice, the end-users of a mobile wireless CLEC should have equal access to the IXSP of their choice on mobile originating calls, wherever they roam in the serving area or areas where the wireless CLEC operates.
24. The Commission further considers that end-users of a mobile wireless CLEC should have equal access to the IXSP of their choice on mobile terminating calls, where roaming outside the local calling area associated with the end-user's home exchange. Although the roaming subscriber does not dial the long distance call, the subscriber causes the call by roaming, and is responsible for the applicable charges.
25. The Commission thus finds that Decision 97-8 requires that Microcell provide enhanced equal access products to the end-users of any affiliated reseller, as long as they are roaming within the serving areas where the company is operating as a CLEC.
26. Accordingly, the Commission directs Microcell to provide equal access on mobile originating calls, where Solutions' [ Microcell Solutions Inc., a reseller of Microcell] end-users are roaming within Microcell's CLEC serving areas and on mobile terminating calls, where an end-user is roaming outside the local calling area associated with the home exchange. This requirement is subject to Microcell's ability to provide equal access and the IXSP's ability to provide the service.
17. In light of billing and routing issues associated with roaming calls, the Commission went on to relieve the ILECs of the obligation to interconnect their interexchange networks with Microcell Telecom's network for the purpose of carrying toll calls. The Commission also requested the CRTC Interconnection Steering Committee (CISC) Network Working Group (NTWG) to address possible solutions to these interexchange billing and routing issues.
18. On 8 December 2000, the CISC NTWG filed Report on Billing and Routing Alternatives Associated with Roaming End-customers of Mobile Wireless CLECs. The report concluded that Microcell Telecom was able to provide equal access for mobile originating calls (MOCs).
19. The CISC NTWG submitted a second report, Equal Access Mobile Terminating Calls, on 1 May 2001. This report indicated that Microcell Telecom did not have the ability to provide equal access for mobile terminating calls (MTCs) or mobile call forwarded calls (MCFCs).
Positions of parties
20. Microcell submitted that it was already operating as a wireless CLEC in Alberta and British Columbia in accordance with the conditions set out in Order 2000-831. Microcell noted that pursuant to that order, its equal access obligations as a wireless CLEC were subject to its ability to provide equal access and the IXSP's ability to provide the service.
21. According to Microcell, there were significant technical differences between equal access for MOCs and equal access for MTCs or MCFCs. While MOCs presented a number of difficulties, especially in respect of billing by the IXSP, it was technically feasible to provide equal access for MOCs. However, Microcell submitted that its research with its two equipment vendors revealed equal access for MTCs and MCFCs to be impractical.
22. Microcell noted that, to its knowledge, no other wireless provider in the world was actively pursuing the possibility of equal access for MTCs and MCFCs. In Microcell's view, those parties who claimed that it should be possible to provide equal access of this type, within a limited time period such as one or two years, had not researched the issue and had no support for their claim.
23. Microcell also submitted that Bell Canada and other ILECs were simply trying to protect their dominant position in the local market and their interconnection revenues when they argued that Microcell should be prohibited from acting as a CLEC until equal access on MOCs, MTCs and MCFCs was fully implemented.
24. In response to the idea that equal access on MOCs could be limited to calls originating in a caller's home exchange, Microcell submitted that this was not possible. Microcell indicated that it could not validate whether a call originated within the caller's home exchange since the physical boundaries of the exchange did not coincide with the boundaries of the areas served by cell sites. According to Microcell, a caller placing a call from within the caller's home exchange could actually be served by a cell site outside the exchange boundary or vice versa. Furthermore, Microcell's Mobile Switching Centres did not validate the Calling Party; thus the phone number and home exchange of the call-originating mobile subscriber were not used for routing purposes. Consequently, in Microcell's submission, it was not possible to restrict equal access to within the home exchange.
25. Microcell argued that its service did not need to be identical to or an equivalent substitute to wireline local exchange service in order for Microcell to qualify as a CLEC. In Microcell's view, its service was actually superior to wireline service. Microcell submitted that what was important was that it was meeting all of the CLEC obligations set out in Decision 97-8, as clarified and interpreted by the Commission in Order 98-1 and Order 2000-831. Microcell also submitted that its service satisfied the basic service objective established by the Commission in Telephone service to high-cost serving areas, Telecom Decision CRTC 99-16, 19 October 1999 (Decision 99-16). In Microcell's view, its participation in the local market as a wireless CLEC enhanced competition and was in the public interest.
26. In Microcell's submission, it would be best if the Commission recognized the technical differences between wireless and wireline networks and did not attempt to impose on wireless CLECs equal access obligations which only made sense in the wireline context. Accordingly, Microcell submitted that the equal access obligations for wireless CLECs should be removed altogether.
Comments of other parties
27. ARC et al. submitted that the CLEC obligations should remain technologically neutral and should be the same for all CLECs. In ARC et al.'s view, true local competition existed only where competitive service providers were offering substitutable services. ARC et al. submitted that it was not yet clear whether wireless service would become a full substitute for wireline service for most Canadians. ARC et al. argued that if a CLEC could not, or chose not to offer basic residential service, as defined by the Commission, it was questionable whether it should be granted CLEC status with its corresponding rights to access the national subsidy fund.
28. In ARC et al.'s view, equal access was a cornerstone of toll competition and toll competition should not, and need not, be sacrificed in the name of local competition. In ARC et al.'s submission, a wireless CLEC should be required to comply fully with the equal access obligations established by Decision 97-8. ARC et al. submitted that the equal access obligations should be suspended for a wireless CLEC for technical reasons, only if it were likely that a technical solution would be found within a reasonable period, such as one year. Even then, in ARC et al.'s view, it would be preferable to defer granting the service provider CLEC status until the technical solution was available.
29. Bell Canada et al. argued that the Commission should maintain the CLEC obligations set out in Decision 97-8 since they were technologically neutral and promoted end-user choice. Bell Canada et al. did not consider it necessary or appropriate to revise or review the definition of equal access given that local exchange carriers (LECs) and IXSPs had configured their networks to satisfy the equal access requirements which, in turn, benefited end-users. In Bell Canada et al.'s submission, the Commission should deny CLEC status to a WSP until such time as the Company could fulfil all such obligations, including the obligation to provide full equal access to IXSPs.
30. Bell Mobility submitted that it was important to distinguish between wireless CLECs and WSPs in general. In Bell Mobility's view, the Commission had relied on market forces to govern the behaviour of WSPs and should continue to do so. However, Bell Mobility also submitted that WSPs that choose to become wireless CLECs should be required to meet all of the CLEC obligations, including the requirement to provide equal access.
31. Primus submitted that the Commission had made it extremely clear that wireless CLECs should be subject to the same equal access provisions as wireline CLECs. Primus argued that wireless CLECs should continue to be required to meet all CLEC obligations, including all equal access obligations. In Primus' view, if a proposed CLEC could not fulfil all of the obligations set out by the Commission, then CLEC status should be denied until such time as it could fulfil such obligations.
32. Nonetheless, Primus submitted that, as a last resort, equal access could be implemented on MOCs until such time as a technical solution was available for MTCs. In Primus' view, if this approach were adopted, then the Commission should impose a strict time line for the implementation of full equal access by wireless CLECs.
33. TELUS submitted that the principles of technological neutrality and regulatory symmetry must be upheld with respect to CLEC obligations. TELUS argued that if Microcell, or any other service provider, using any type of technology, was unable to provide equal access to IXSPs, such service provider should be denied CLEC status.
34. TELUS submitted that removing, even on a temporary basis, the equal access obligations of wireless CLECs or any other type of LECs offering roaming capabilities would lead to unintended consequences by virtue of providing the less regulated providers with artificial advantages over other LECs. TELUS submitted that should the Commission choose to permit Microcell to operate as a CLEC, in spite of its inability to fulfil its obligations, then it would be incumbent upon the Commission to examine the removal of equal access obligations for all LECs.
35. TELUS submitted that, in order to maintain technological neutrality, the Commission should consider defining "equal access" to be an arrangement that would allow a local exchange service customer within its home exchange to access long distance companies with equal ease and quality of connection. For the purposes of this definition, TELUS proposed that the "home exchange" would be defined in accordance with the ILEC exchange boundary as directed in Decision 97-8. A subscriber would be considered to be in the subscriber's home exchange when the subscriber was physically located within the geographical boundaries of the exchange where the subscriber's Billing Telephone Number was assigned.
36. TELUS argued that a wireless CLEC could comply with this approach by configuring its cell sites to conform to exchange boundaries. According to TELUS, when providing service to a subscriber outside of the subscriber's home exchange, a wireless CLEC would no longer be operating as a CLEC, but instead would be providing service as a WSP.
Commission findings and determinations
37. As noted above, Decision 97-8 envisioned a market for local exchange services where LECs could use distinct technologies, while adhering to a common set of regulatory obligations. Those obligations were designed to be technologically and competitively neutral.
38. In Order 98-1, the Commission reaffirmed that the framework for local competition was intended to be neutral in terms of technology. Consequently, the Commission rejected a suggestion that wireless CLECs be required to meet the CLEC obligations wherever they provide roaming service to subscribers, and not merely in those areas where they serve as a CLEC. The Commission indicated that such an approach would impose far greater obligations on wireless CLECs than on wireline CLECs and would effectively prevent WSPs from selecting their own CLEC serving areas.
39. There is nothing on the record of this proceeding that would cause the Commission to change its views on the importance of technological and competitive neutrality.
40. In the Commission's view, the removal of all equal access obligations for wireless CLECs would create competitive inequity vis-ŕ-vis other LECs which must meet equal access obligations, would eliminate options for subscriber choice and would represent a permanent loss of competitive opportunities for IXSPs. Consequently, the Commission rejects Microcell's suggestion that the equal access obligation be eliminated for wireless CLECs.
41. The question, therefore, is not whether the equal access obligation should be retained, but whether the requirements of that obligation have been properly specified for wireless CLECs or whether those requirements should be reformulated. In light of the technical issues identified above, the Commission is of the view that this question should be addressed in two parts: first, with respect to MOCs; second, with respect to MTCs and MCFCs.
The equal access obligation with respect to MOCs
42. In Order 2000-831, the Commission concluded that the principle of end-user choice warranted requiring a wireless CLEC to provide equal access on MOCs wherever the wireless carrier operates as a CLEC, irrespective of the home exchange of the subscriber.
43. The 8 December 2000 CISC NTWG report and the record of this proceeding indicate that this approach is capable of implementation by wireless CLECs.
44. As noted above, in this proceeding TELUS proposed that the requirements of Order 2000-831 should be revised so that wireless CLECs would be required to provide equal access for MOCs only when a subscriber places toll calls from the subscriber's home exchange. In response to this suggestion, Microcell submitted that, for technical reasons, it would be impractical for a wireless CLEC to attempt to imitate a wireline LEC by limiting equal access to calls placed from a subscriber's home exchange.
45. The Commission is of the view that TELUS' proposal is impractical from a technical perspective. Among other things, imperfect alignment of radio coverage to exchange boundaries and dynamic fluctuations in radio coverage would make it difficult, if not impossible, to implement this approach in a satisfactory manner.
46. In addition, the Commission remains of the view that, in light of the principle of end-user choice, a subscriber roaming outside the subscriber's home exchange should not be denied the benefit of equal access when it is available to other subscribers within the relevant exchange.
47. In light of the above, the Commission concludes that a wireless CLEC must provide equal access for all MOCs originating within the areas served by the wireless CLEC, as a CLEC, subject only to the willingness of IXSPs to make their interexchange services available to the wireless CLEC's subscribers in the relevant locations.
The equal access obligation with respect to MTCs and MCFCs
48. In Order 2000-831, the Commission concluded that a wireless CLEC should provide equal access in respect to MTCs since the long distance charges are caused and payable by the subscriber roaming outside the subscriber's home exchange. The Commission did not expressly address MCFCs in Order 2000-831.
49. As noted above, the 1 May 2001 consensus report of the CISC NTWG indicated that Microcell was not able to provide equal access on MTCs and MCFCs. Microcell confirmed this conclusion in its 14 December 2001 comments in this proceeding. While parties differed in their expectations as to when a standard-based solution to this problem might be available, no party disagreed with either the CISC NTWG report or with Microcell's 14 December 2001 submission that the problem was not resolved at present. In addition, no party suggested that any other WSP would be in a better position than Microcell to provide equal access for these types of calls, should that WSP choose to become a CLEC.
50. The Commission is of the view that the development of a standard-based solution to this problem, its adoption by equipment manufacturers and its deployment by service providers will likely take some time. Indeed, given the apparent lack of interest in this issue outside of Canada, it is conceivable that such a solution may not be developed in the foreseeable future.
51. Nonetheless, since wireless CLECs may be able to support equal access for MTCs and MCFCs at some point in the future, the Commission considers it appropriate to retain this requirement as part of the obligation for wireless CLECs to provide equal access, subject to the IXSPs' willingness to make their services available to a wireless CLEC's subscribers in the relevant location.
52. At the same time, inlight of the consensus report filed by the CISC NTWG on 1 May 2001 and the record of this proceeding, the Commission hereby suspends the requirement for wireless CLECs to make available equal access on MTCs and MCFCs until such time as it is demonstrated to be viable from both a technological and an economic perspective.
Interconnection obligations of IXSPs to wireless CLECs
53. As noted above, in Order 2000-831, the Commission relieved ILECs of their obligation under Decision 97-8 to interconnect their interexchange networks with a wireless CLEC. The Commission took this step because of the billing and routing issues associated with roaming. Microcell emphasized the same billing and routing issues in the present proceeding and no party contradicted Microcell on this point. In these circumstances, the Commission considers it appropriate to extend the relief granted in Order 2000-831. Therefore, ILECs shall continue to be relieved of their obligation to interconnect their interexchange networks with a wireless CLEC for the purpose of carrying toll calls originated by the end-users of the wireless CLEC.
Public safety obligations for wireless CLECs and WSPs
Different forms of 9-1-1 services and underlying 9-1-1 network access services
54. There are several forms of emergency services, in different communities in Canada. In some communities in Canada, there is no 9-1-1 emergency service at all. Some communities have basic 9-1-1 service, which is a dialled 9-1-1 service, that routes 9-1-1-dialled calls, without any additional information, to a public safety agency which is not necessarily a designated 9-1-1 Call Centre. In many of the ILECs' serving areas, where there is a designated 9-1-1 Call Centre, it is referred to as a Public Safety Answering Point (PSAP).
55. The highest level of wireline 9-1-1 service is referred to as wireline enhanced 9-1-1 (wireline E9-1-1) service. In furnishing wireline E9-1-1 service, the LEC provides information (the subscriber's telephone number, customer name and billing address) to the Automatic Location Identifier (ALI) database. This information appears at the PSAP at the same time as the 9-1-1 voice call. In Bell Canada - Revenue requirements for 1993 and 1994, Telecom Decision CRTC 93-12, 30 August 1993, the Commission approved a province-wide wireline E9-1-1 service for Bell Canada. Since then, the Commission has approved similar province-wide wireline E9-1-1 service for most of the other ILECs. Each CLEC offers the same service to its subscribers, using the ILEC's wireline E9-1-1 network access service as an underlying service.
56. More recently, certain ILECs, wireless carriers and PSAPs have collaborated to introduce wireless enhanced 9-1-1 (wireless E9-1-1) service in some communities. The provision of wireless E9-1-1 service by a wireless carrier to its subscribers is established by using the ILEC's wireless E9-1-1 network access service as an underlying service. Wireless E9-1-1 provides a superior form of emergency service for wireless callers, as compared to emergency services offered by a wireless carrier using the ILEC's wireline E9-1-1 network access service. When a wireless carrier provides wireless E9-1-1 service in a geographical area from which a 9-1-1 phone call is placed by a mobile subscriber, the PSAP operator will receive wireless cell site location information and the 10-digit call back number at the same time as the 9-1-1 phone call from the wireless caller.
57. The Commission has approved the provision of wireless E9-1-1 network access service on an interim basis in TELUS Communications (B.C.) Inc. - Wireless service provider enhanced provincial 9-1-1 network access service, Order CRTC 2001-96, 2 February 2001 (Order 2001-96); TELUS Communications Inc. - Wireless service provider enhanced provincial 9-1-1 network access service, Order CRTC 2001-97, 2 February 2001 (Order 2001-97) and Bell Canada - Wireless service provider enhanced 9-1-1 service, Order CRTC 2001-902, 21 December 2001 (Order 2001-902). Wireless carriers (service is available to either WSPs or wireless CLECs) have individually elected to offer the wireless E9-1-1 service to their subscribers in some communities where the wireless E9-1-1 network access service is available from the ILEC.
Wireless CLEC requirements vis-ŕ-vis 9-1-1 service
58. In Order 2000-831, the Commission noted the submission of AEAA, which had acknowledged that wireless subscriber records were not as useful as having an actual location record delivered. The Commission also noted the submission of Bell Canada, Island Telecom Inc., Maritime Tel & Tel Limited, MTS Communications Inc., NBTel Inc. and Newtel Communications Inc. (Bell Canada et al.), which had submitted that Bell Canada, as well as other ILECs, had in the past offered to make available to WSPs a trunk-side routing arrangement that would improve 9-1-1 call routing accuracy.
59. In its determination, the Commission stated that it agreed with AEAA that, in emergency situations, the information contained in wireless subscribers' records could be of value to the PSAPs. The Commission stated that it considered that until wireless E9-1-1 was implemented, Microcell Telecom should support the inclusion of the subscriber records of its resellers' end-users in the ALI databases.
60. Accordingly, in Order 2000-831, the Commission directed Microcell Telecom to update the relevant ALI databases with the subscriber records of its resellers' end-users where it was operating as a CLEC. The Commission also directed Microcell Telecom to use the trunk-side routing arrangements referenced in the comments of Bell Canada et al. The Commission noted that Microcell Telecom had expressed concerns regarding these trunk-side routing arrangements for 9-1-1 service, and the Commission requested the CISC Inter-carrier Operations Group - Emergency Services (9-1-1) to address any operational issues associated with its directives.
61. Finally, in Order 2000-831, the Commission directed Microcell Telecom to implement wireless E9-1-1 as soon as the service became available in any of the ILEC's serving areas where the company would be operating as a CLEC.
Positions of parties
62. AEAA submitted that all WSPs, not merely wireless CLECs, should be required to implement wireless E9-1-1 service. AEAA also submitted that WSPs should be required to create verifiable subscriber records that could be made available to PSAPs. However, given the lack of reliability in current subscriber records, AEAA submitted that input of subscriber records into the ALI database should be held in abeyance. AEAA also submitted that all wireless CLECs and WSPs should be required to inform their subscribers of the limitations of wireless 9-1-1 service.
63. In ARC et al.'s view, there should be no distinction between wireless CLECs and other WSPs with respect to public safety issues. ARC et al. submitted that all WSPs should be required to offer 9-1-1 services as an option to their subscribers. ARC et al. also submitted that the Commission should focus on functionality when assessing the inclusion of WSP subscriber records in the ALI database. In ARC et al.'s view, WSPs should be required to improve their subscriber records and should give subscribers the option of having their records included in the ALI database. ARC et al. also emphasized that consumer education was critical and submitted that WSPs and wireless CLECs should be required to inform their subscribers of the unique nature and limitations of wireless 9-1-1 service.
64. Bell Canada et al. submitted that the Commission should maintain the obligation on wireless CLECs to provide 9-1-1 service and to implement wireless E9-1-1 service when possible. However, Bell Canada et al. argued that market forces, not regulation, should govern the provision of emergency services by WSPs. With respect to the ALI database, Bell Canada et al. argued that there were too many technical and administrative problems associated with inputting subscriber records to make this a reasonable obligation to impose on wireless CLECs. Bell Canada et al. submitted that this obligation should be eliminated so that the relevant parties could focus their energies on pursuing more effective solutions. Bell Canada et al. also suggested that this matter could be referred to the Emergency Services Working Group of CISC.
65. Bell Mobility submitted that WSPs and wireless CLECs operated under distinct regulatory regimes and should continue to do so. In particular, Bell Mobility submitted that the Commission should rely on market forces with respect to WSPs, as it had in the past, and should not mandate public safety obligations for WSPs. Bell Mobility submitted that WSPs had voluntarily offered 9-1-1 service and further indicated that Bell Mobility itself intended to implement wireless E9-1-1 service. In Bell Mobility's view, while wireless CLECs should be required to provide 9-1-1 service and implement wireless E9-1-1 service when possible, this requirement should not be mandated for WSPs.
66. Bell Mobility considered it reasonable for wireless CLECs to inform their subscribers of the particular nature and limitations of wireless 9-1-1 service. As regards the ALI database, Bell Mobility submitted that wireless CLECs did not maintain reliable subscriber records and, hence, should not be required to input those records into the ALI database.
67. Microcell submitted that wireless CLECs should be required to provide 9-1-1 service and wireless E9-1-1 service when possible. In regard to the latter obligation, Microcell emphasized that wireless CLECs were reliant on the ILECs to provide the required wireless E9-1-1 interconnection services and, consequently, the obligation on wireless CLECs should not be absolute, but contingent on the necessary service being available from the ILEC.
68. Microcell argued against wireless CLECs being required to input subscriber data into the ALI database on several grounds. First, Microcell submitted that providing a PSAP with the fixed address of a mobile customer was of little value and could actually be misleading. Second, Microcell submitted that PSAPs would be unable to see the ALI records in real-time and very few (i.e., only 2%) would be able to access these records manually. Third, there were no plans to develop or implement standards which would permit real-time access of ALI records. Fourth, wireless CLECs would have to totally redesign their up-front activation systems which would, in turn, increase costs, raise privacy issues for subscribers and possibly irritate subscribers.
69. Microcell submitted that it had consistently argued that the way to maximize the public safety benefits from wireless telephony was to pursue proven wireless E9-1-1 technical solutions, augmented by timely subscriber information retrieval services operated by wireless carriers' security departments. Microcell submitted that this position appeared to be shared by Montréal/UMQ and Vancouver.
70. Microcell submitted that the subscriber notification proposals advocated by certain other parties would be either impractical or inappropriate. Microcell argued that disclaimers could easily be misconstrued by subscribers and could prove to be counterproductive.
71. Montréal/UMQ submitted that the obligations established in Order 2000-831 should be maintained for wireless CLECs and should be extended to WSPs. In particular, in their view, the Commission should direct all WSPs to implement wireless E9-1-1 service and also require them to develop and offer a service for providing the geographical location of callers. Montréal/UMQ acknowledged the marginal utility of inputting WSP subscriber records into the ALI database. Consequently, they requested that the Commission require all WSPs to maintain a security response service on a 24 hour per day, seven-day per week basis. This service would be accessible by PSAPs via a confidential security number. Montréal/UMQ also submitted that WSPs should be required to inform their subscribers, at least annually, that it would be helpful to PSAPs if subscribers provided address information to their WSP.
72. OAB submitted that the fact that 35 to 40 percent of 9-1-1 calls originated from WSP subscribers was indicative of the importance of wireless services in emergency situations. OAB argued that PSAPs needed accurate subscriber information in order to respond to wireless emergency calls. Consequently, in OAB's view, all WSPs should be required to input subscriber information into the ALI database. However, OAB submitted that, in light of the lack of reliability of wireless subscriber records, this obligation should be suspended until proper records could be created. OAB also submitted that the deployment of wireless E9-1-1 services should not eliminate the obligation to populate ALI databases with wireless subscribers' records.
73. OAB submitted that the obligation of wireless CLECs to provide 9-1-1 and wireless E9-1-1 service should be extended to WSPs and that the Commission should set target time frames for all WSPs to commence deployment of wireless E9-1-1 service once it is commercially available. In OAB's submission, this would ensure that the same level of 9-1-1 service would be available to all Canadian wireless customers, regardless of their choice of service provider.
74. RWI submitted that it did not make sense to input wireless CLEC or other WSP subscriber records into the ALI database given the lack of reliability and utility of such records. RWI also submitted that the ALI database could only be accessed manually by PSAPs and, therefore, it would be just as efficient for the PSAP to call the Company directly. In light of these factors, RWI submitted that the obligation in Order 2000-831 that wireless CLECs populate the ALI database should be eliminated.
75. RWI submitted that WSPs did not offer local exchange services in competition with the ILECs. In addition, RWI argued that the Commission had not found wireless services to be substitutable for local exchange services but, instead, the Commission had concluded that wireless services were discretionary services. Accordingly, in RWI's view, CLECs and WSPs were subject to very different regulatory regimes. RWI submitted that CLEC obligations should not be imposed on WSPs, only on those WSPs who might choose to become wireless CLECs. RWI argued that market forces would ensure that WSPs offered 9-1-1 service and, eventually, wireless E9-1-1 service.
76. RWI submitted that the imposition of CLEC obligation on WSPs, without any coincident extension of any CLEC-related benefits to WSPs, would be unfair. RWI submitted that, rather than adopting an inequitable and piecemeal approach to the extension of specific CLEC obligations to WSPs, the Commission should undertake a broader consultation whereby all of the principal elements of the two regimes could be considered, and the rights and obligations appropriately balanced.
77. TELUS submitted that wireless CLECs should be required to provide wireless E9-1-1 service to their end-users, where it is available, since wireless E9-1-1 service is a closer equivalent to 9-1-1 service provided by wireline LECs to their end-users than the alternative arrangement which is simply line-side 9-1-1 service. TELUS submitted that the Commission should not require wireless CLECs to input subscriber information in the ALI databases given the general lack of reliability and the limited usefulness of such data.
78. TELUS argued against imposing wireless CLEC obligations on WSPs. In TELUS' submission, WSPs were already responding to the market demand for 9-1-1 services. Similarly, TELUS was of the view that the wireless industry was already keeping customers informed of the limits of wireless 9-1-1 service and, therefore, it would not be appropriate to mandate education programs.
79. Vancouver stated that 40% of emergency calls originate from mobile subscribers. Vancouver did not support the inclusion of WSP subscriber records in the ALI database given that the reliability of these records would be suspect. Vancouver submitted that it would be preferable if all WSPs became wireless CLECs and implemented wireless E9-1-1 service. Vancouver indicated that if this were to occur, Vancouver would wish to rely on a wireless CLEC's security desk in order to trace an incomplete call or do any other kind of follow-up. Vancouver submitted that all WSPs should be required to have security departments which were staffed on a 24 hour per day, seven day per week basis and which could be accessed from the PSAP by a toll-free number.
Commission findings and determinations
80. Public Notice 2001-110 identified numerous public safety issues for consideration. Those issues are addressed below under the following broad categories:
- Public safety obligations of wireless CLECs / wireless E9-1-1 and ALI;
- Public safety obligations of wireless CLECs / PSAP queries;
- Public safety obligations of wireless CLECs / subscriber notification;
- Public safety obligations of WSPs.
Public safety obligations of wireless CLECs / wireless E9-1-1 and ALI
81. As noted above, in Order 2000-831, the Commission directed Microcell to implement wireless E9-1-1 service in those areas where it operated as a CLEC, as soon as the wireless E9-1-1 network access service became available. The Commission also directed Microcell to support the inclusion of subscriber records in ALI databases where it wished to operate as a wireless CLEC and could not offer wireless E9-1-1 service to its subscribers.
82. The parties who commented on public safety issues agreed that, in the wireless context, wireless E9-1-1 service provides a superior form of emergency service and closer equivalent to the E9-1-1 service provided by wireline carriers. When a wireless CLEC provides wireless E9-1-1 service to its mobile subscribers, the PSAP operator receives wireless cell site location information, which sets out an approximate location of the call, and the 10-digit call back number, at the same time as the 9-1-1 phone call. By contrast, where wireless E9-1-1 network access service is not available and a wireless CLEC can only offer emergency services using the ILEC's wireline E9-1-1 network access service, the PSAP will only have access to information that is included in the ALI database, i.e., phone number, customer name and billing address.
83. A strong consensus emerged in the present proceeding that the Commission should retain the obligation on wireless CLECs to implement wireless E9-1-1 service when wireless E9-1-1 network access services are available. In the Commission's view, there is no reason to modify this obligation. On the contrary, competitive equity and public safety concerns argue for the continuation of this obligation. The Commission has decided, therefore, that this obligation should be maintained as a public safety obligation for all wireless CLECs.
84. The Commission notes that Order 2000-831 required wireless CLECs to provide information for the ALI database until they offer wireless E9-1-1 service to their subscribers. On the question of whether wireless CLECs should continue to be required to provide information for the ALI database, the parties who commented on this issue acknowledged that there were problems with the accuracy of wireless subscriber records and with the availability of customer data for many wireless subscribers.
85. The Commission recognizes the reported difficulties associated with inputting wireless subscriber records into the ALI database. The Commission also notes that there have been improvements in the geographical availability of wireless E9-1-1 network access services and options for more accurate location-based wireless emergency services. In light of these developments, the Commission is of the view that it would be more effective and cost-efficient for all parties to focus on improvements to the wireless emergency services and underlying network access services. Given these circumstances, the Commission finds that it would not be appropriate to continue to require wireless CLECs to enter subscriber records in ALI databases. The Commission concludes that wireless carriers, therefore, no longer have the option to operate as wireless CLECs by including subscriber records in ALI databases.
86. The Commission notes that there are some communities where neither wireless E9-1-1 nor wireline E9-1-1 services are offered. In these communities, the ILEC may provide basic 9-1-1 service, or there may be no 9-1-1 service at all. Under the current regulatory framework, ILECs, WSPs and wireline CLECs may operate in such communities, but under the formulation of their obligations set out above, wireless carriers would not be able to obtain CLEC status. For competitive equity towards wireline LECs, the Commission considers that wireless carriers should be able to operate as wireless CLECs in communities where neither wireless E9-1-1 nor wireline E9-1-1 services are offered. Accordingly, the Commission concludes that in a community where the ILEC provides basic 9-1-1 service, the wireless carrier must provide a comparable level of service, in order to attain or maintain status as a wireless CLEC. Similarly, in a community where the ILEC provides no 9-1-1 service, a wireless carrier may operate without providing such service.
87. The Commission notes that in communities with basic 9-1-1 service or with no 9-1-1 capabilities, superior forms of 9-1-1 service may be introduced over time. The Commission considers that when enhanced 9-1-1 services are introduced in a community where a wireless carrier already operates as a wireless CLEC, the ILEC is to plan the introduction of both wireline E9-1-1 and wireless E9-1-1 network access services. When and where this occurs, the Commission considers that the wireless CLEC, like other CLECs, must fulfil its 9-1-1 obligations, in order to maintain its status as a CLEC. Should the wireless CLEC not fulfil such requirements, it must relinquish its status as a CLEC in that community. In the latter case, the wireless carrier must notify, in writing, both the Commission and the relevant ILEC of its change in status.
Public safety obligations of wireless CLECs / PSAP queries
88. A number of parties argued that wireless CLECs should be required to provide a mechanism for handling queries by PSAPs for more information about a subscriber who has placed a 9-1-1 call. In particular, it was suggested that a wireless CLEC should be required to staff its operations centre on a continuous basis (i.e., 24 hours per day, seven days per week) so as to be able to respond to queries for subscriber information by authorized PSAP personnel. It was also suggested that wireless CLECs should be required to maintain a toll-free number for this purpose.
89. In the Commission's view, this type of mechanism would be a cost-effective way of improving emergency services since it would augment the information available through wireless E9-1-1 service capabilities. The Commission therefore requires wireless CLECs to establish and maintain by 14 October 2003 toll-free telephone access to and continuous staffing of at least one of their operations centres, in order to promptly assist authorized PSAP personnel seeking subscriber information in emergency situations.
Public safety obligations of wireless CLECs / subscriber notification
90. A number of parties argued that public safety would be improved if wireless subscribers were fully aware of the attributes of their wireless emergency service. The Commission agrees. In the Commission's view, wireless subscribers may not be aware that emergency calls dialled using the 9-1-1 format may be routed to a public safety agency which is not necessarily a designated 9-1-1 Call Centre. Subscribers may also not be aware that, due to radio coverage, some emergency calls may reach a 9-1-1 Call Centre that does not provide emergency services in the caller's specific location. In addition, subscribers may not be aware that their specific location, phone number or identity may not always be immediately available to the 9-1-1 Call Centre's personnel.
91. In the Commission's view, it would improve public safety if wireless CLECs were to provide subscribers with information regarding the availability, characteristics and limitations of the wireless emergency service that they offer. This information should be provided to (1) new subscribers upon service initiation, (2) in a one-time information campaign to existing subscribers, and thereafter, (3) periodically to existing subscribers, for example when they renew their mobile handset. The Commission directs each wireless CLEC to file by 13 November 2003 a proposal for the implementation of this requirement. Upon receipt and review of these proposals, the Commission will determine what further action is required.
Public safety obligations of WSPs
92. Wireless carriers, where they operate as WSPs, are not currently subject to mandatory 9-1-1 service requirements. Parties to the present proceeding were divided on the question of whether such obligations of wireless CLECs should be extended to WSPs. PSAPs and public interest groups sought uniform public safety obligations for WSPs and wireless CLECs. Carriers, both wireless and wireline, generally opposed this approach and argued in favour of reliance on market forces.
93. The Commission notes the statistics provided by OAB and Vancouver which indicate that a significant percentage of emergency calls originate from wireless subscribers. The Commission also notes that these statistics were derived from calling data at some of Canada's largest 9-1-1 call centres. In the Commission's view, this evidence demonstrates that wireless services play an increasingly important role in public safety in Canada.
94. The Commission is of the view that given the increasing public reliance on wireless services in emergency situations, it is appropriate to impose some public safety obligations on all WSPs. Accordingly, the Commission requires all WSPs to :
- provide wireless E9-1-1 service to their subscribers in communities where wireless E9-1-1 network access service is available from an ILEC;
- establish and maintain by 14 October 2003 toll-free telephone access to and continuous staffing of at least one of the WSP's operation centres, in order to promptly assist authorized PSAP personnel seeking subscriber information in emergency situations; and
- file by 13 November 2003 a proposal for providing the WSP's subscribers with initial and periodic notification of the availability, characteristics and limitations of the 9-1-1 service offered by the WSP.
Limitation of liability for WSPs and CLECs
95. As noted above, in Decision 96-14, the Commission forbore from exercising its powers under various sections of the Act with regards to mobile wireless telecommunications service, including section 31, which pertains to limitations of liability.
96. In addition, in Decision 97-8, the Commission forbore from exercising its powers under section 31 in respect of services provided by CLECs to their end-users. However, with respect to liability as between carriers, the Commission noted that under section 31 of the Act, the ILEC's liability to other carriers may be limited. In Decision 97-8, the Commission retained its powers under section 31 of the Act, in respect of CLECs' provision of services to, and agreements with, other Canadian carriers.
97. In Telecom Order CRTC 97-1959, 30 December 1997 (Order 97-1959), the Commission approved, on an interim basis, a proposed Interconnection Agreement for the Provision of 9-1-1 Service to a Competitive Local Exchange Carrier (the ILEC-CLEC Interconnection Agreement), filed by Stentor Resource Centre Inc. (Stentor), on behalf of BC TEL, Bell Canada, Maritime Tel & Tel Limited, MTS NetCom Inc., The New Brunswick Telephone Company, Limited and TELUS Communications Inc. In Order 97-1959, the Commission ordered the ILEC-CLEC Interconnection Agreement to be modified in order to revise section 7 to make the Companies' limitations of liability consistent with the limitations of liability set out in their respective Terms of Service.
98. By letter dated 3 March 1998, Stentor filed the revised ILEC-CLEC Interconnection Agreement, with modifications pursuant to Order 97-1959. In this letter, Stentor submitted that the required changes were not appropriate and requested that the Commission grant approval to the originally filed agreement.
99. In the tariff application proceedings that led to Orders 2001-96, 2001-97 and 2001-902, interested parties suggested that the liability for WSPs should be symmetrical to that of the ILECs. In Orders 2001-96, 2001-97 and 2001-902, the Commission granted interim approval to proposed wireless E9-1-1 service tariffs and related agreements between the applicant ILEC and the WSP that would subscribe to the service (the WSP E9-1-1 Agreements). The limitation of liability provisions granted interim approval in these Orders were modelled on those that Stentor had filed with its 3 March 1998 letter, and were drafted so as to limit the liability of the ILECs only.
100. In the present Public Notice 2001-110 proceeding, the Commission asked for comments on limitations of liability for wireless carriers and on the appropriateness of any other related measures.
101. Having determined in Decision 97-8 not to forbear with respect to the application of section 31 to limitation of liability provisions relating to interconnection arrangements between CLECs and other Canadian carriers, in Model tariff for the interconnection services of competitive local exchange carriers, Telecom Decision CRTC 2002-54, 3 September 2002 (Decision 2002-54), the Commission approved a model tariff for CLECs which included an intercarrier limitation of liability provision.
Positions of parties
102. Bell Canada et al. argued that the consideration of legal liability issues should be reviewed during the Commission's consideration of the ILEC's wireless E9-1-1 network access service tariff applications.
103. Bell Mobility supported the extension of the limitation of liability protections to WSPs as, in its view, this would promote the implementation of emergency response services.
104. Microcell submitted that extending limitation of liability protection to wireless CLECs and WSPs was not a precondition for these carriers to provide 9-1-1 services since they were already doing so. However, Microcell supported granting such protection to wireless CLECs and WSPs since the ILECs benefited from Commission approved limitation of liability provisions.
105. RWI submitted that WSPs should be given the same limitation of liability as ILECs, otherwise WSPs who were not affiliated with an ILEC would be at a competitive disadvantage.
106. TELUS supported granting WSPs limitation of liability protection comparable to that granted to ILECs. TELUS suggested using the ILECs' General Terms of Service relating to liability as a model for the limited liability provision for WSPs.
Commission findings and determinations
Limitation of liability relating to the provision of 9-1-1 services to end-users
107. In this Decision, the Commission is requiring wireless carriers to provide wireless E9-1-1 service to their subscribers in certain circumstances. Given the potential for claims by subscribers against wireless carriers in connection with the provision of these emergency services, the Commission will now resume the exercise of its powers under section 31 of the Act on a limited basis (i.e., in connection with the emergency services provided by wireless carriers on a mandatory basis).
108. The Commission finds that the limitation of liability provision set out in Appendix A to this Decision is to apply to wireless carriers in respect of emergency services provided to end-users on a mandatory basis. The provision is based on the limitation of liability provision approved for TELUS Communications Inc. in CRTC approves amalgamated Terms of Service for TELUS Communications Inc., Order CRTC 2001-552, 9 July 2001. In order to implement this determination and ensure awareness of the limitation of liability, the Commission directs wireless carriers to include such provisions in their end-user service contracts.
Inter-carrier limitation of liability relating to the provision of 9-1-1 services
109. As noted above, ILECs enjoy limitation of liability both for wireline E9-1-1 and wireless E9-1-1 network access services, pursuant to the ILEC-CLEC Interconnection Agreement and the WSP E9-1-1 Agreements, respectively. Further to Decision 2002-54, CLECs also receive limitation of liability protection in respect of interconnection arrangements between CLECs and other Canadian carriers. Under a forbearance regime, WSPs have not benefited from any limitation of liability provisions that the Commission has approved.
110. Upon examination of the agreements, the Commission notes that the degree of liability protection that CLECs receive under the model CLEC tariff approved in Decision 2002-54 is considerably less than that which the ILECs receive under the ILEC-CLEC Interconnection Agreement and the WSP E9-1-1 Agreements.
111. The Commission notes that parties that commented on this issue generally supported the introduction of limitations of liability provisions for wireless carriers. The Commission is of the view that a wireless carrier subscribing to an ILEC's wireless E9-1-1 network access service should enjoy limitation of liability protection comparable to that of the ILEC.
112. Accordingly, the Commission is of the view that the WSP E9-1-1 Agreements should be modified to incorporate the limitation of liability provision set out in Appendix B of this Decision. This provision is based on the existing limitation of liability provision contained in the WSP E9-1-1 Agreements modified in order to give comparable limitation of liability to wireless carriers. Thus, the Commission directs ILECs offering WSP E9-1-1 service to include the wording set out in Appendix B, changing the parties' names as appropriate, in their WSP E9-1-1 Agreements referenced in their tariffs and to modify existing signed WSP E9-1-1 service agreements accordingly.
This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca
Limitation of liability relating to the provision of emergency services to end-users on a mandatory basis
1.1 [The wireless carrier's] liability is not limited by sections 1.2 through 1.4, below, in cases of deliberate fault, gross negligence or anti-competitive conduct on the part of [the wireless carrier] or in cases of breach of contract where the breach results from gross negligence of [the wireless carrier].
1.2 Except in cases where negligence on the part of [the wireless carrier] results in physical injury, death or damage to the customer's property or premises, [the wireless carrier's] liability for negligence related to the provision of emergency services on a mandatory basis is limited to the greater of $20 and three times the amount the customer would otherwise be entitled to receive as a refund for the provision of defective service under the contract between [the wireless carrier] and the customer.
1.3 In respect of the provision of emergency services on a mandatory basis, [the wireless carrier] is not liable:
- for libel, slander, defamation or the infringement of copyright arising from material or messages transmitted over [the wireless carrier's] telecommunications network from the customer's property or premises or recorded by the customer's equipment or [the wireless carrier's] equipment,
- for damages arising out of the act, default, neglect or omission of the customer in the use or operation of equipment provided by [the wireless carrier],
- for damages arising out of the transmission of material or messages over [the wireless carrier's] telecommunications network on behalf of the customer, which is in any way unlawful.
1.4 When facilities of other companies or telecommunications systems are used in establishing connections to or from customer-controlled facilities and equipment, [the wireless carrier] is not liable for any act, omission or negligence of the other companies or telecommunications systems in relation to the provision of emergency services on a mandatory basis to the customer.
Inter-carrier limitation of liability and indemnification in respect of wireless enhanced 9-1-1 network access services
1.1 [The wireless carrier's] liability to [the ILEC] as a result of any liability award, claim, demand, suit, proceeding, action, cause of action, loss, cost, charge, damage, expense or other claim of any kind or nature whatsoever, direct or indirect, regardless of the cause, arising out of or relating to the Agreement, the Wireless Enhanced 9-1-1 Service Tariff or any other Tariff, the operation of or failure of Wireless Enhanced 9-1-1 Service or any part thereof including, without limitation, any claim arising out of a failure to complete a 9-1-1 call, any delay in completion of a 9-1-1 call, any interruption of a 9-1-1 call, or any error in information used in connection with the operation of Wireless Enhanced 9-1-1 Service shall be limited to the extent set out at Appendix A of Telecom Decision CRTC 2003-53.
1.2 [The ILEC] shall not be entitled to any claim against [the wireless carrier] in the event of [the wireless carrier's] failure to perform its obligations related to Wireless Enhanced 9-1-1 Service where such failure is directly or indirectly caused by or results from a breach by [the ILEC] of its obligations under this Agreement or the Wireless Enhanced 9-1-1 Service Tariff, or an event or events beyond the reasonable control of [the wireless carrier].
2.1 [The ILEC] shall:
- indemnify and hold harmless [the wireless carrier], its directors, officers, employees and agents from and against any and all manner of liabilities, awards, claims demands, suits, proceedings, actions, causes of actions or other claims which may be brought or made against [the wireless carrier] or such persons, or which [the wireless carrier] or such persons may become subject to;
be liable to [the wireless carrier], its directors, officers, employees and agents for any and all losses, costs, charges, damages and expenses whatsoever (and without limiting the generality of the foregoing, any losses, costs, damages and expenses of [the wireless carrier] or such persons, including costs as between a solicitor and his own client) which [the wireless carrier] or such persons may sustain, pay or incur; as a result of, arising out of, or in connection with:
- any act or omission of [the ILEC] in the furnishing of service by [the ILEC] to [the ILEC's] end-customers;
- any breach by [the ILEC] of its obligations with respect to this Agreement or the Wireless Enhanced 9-1-1 Service Tariff;
- any interruption in [the ILEC's] service or interference with the operation of any facilities or equipment of [the ILEC] arising in any manner from the services provided under this Agreement and the Wireless Enhanced 9-1-1 Service Tariff;
- the accuracy and content of the Cell Site/Sector Location Information and Calling Party's Numbers;
- any failure by [the wireless carrier] to carry out its obligations hereunder as a result of [the ILEC's] failure to accurately record, store and transmit Cell Site/Sector Location Information and Calling Party's Numbers.
3.1 Other than as provided for in this Agreement, there are no warranties, representations, conditions or guarantees of any kind whatsoever provided by [the wireless carrier] to [the ILEC], either expressed or implied, whether arising by statute, agreement, tort, product liability or otherwise, regarding this Agreement.
4.1 [The ILEC] waives any claims it may now or in the future have in tort or contract law, under statute or in equity, and confirms that its rights, obligations, rights of indemnity and measure and type of damages in the event of breach are limited to those provided in this Agreement.
5.1 These provisions shall survive termination of this Agreement.
- Date modified: