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Telecom Decision CRTC 2003-74
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Ottawa, 3 November 2003
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Application by Aliant Telecom Inc. regarding compliance with Telecom Order CRTC 99-434
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Reference: 8622-A53-02/02
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In this decision, the Commission forbears, with some conditions, from regulating high capacity and digital data services interexchange private line (IXPL) services on routes for which competitors of several incumbent local exchange carriers offer, or provide, services at DS-3 or greater bandwidth.
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The Commission also determines that EastLink Limited (EastLink) does not have to report, as IXPL routes pursuant to Telecom Order CRTC 99-434 (Order 99-434), the arrangements with its affiliates to backhaul traffic between its switch in Halifax and the various exchanges where it provides local service.
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The Commission however reminds EastLink of its obligation to report, pursuant to Order 99-434, all routes on which it is providing, or offering to provide, IXPL services.
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1.
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On 13 September 2002, Aliant Telecom Inc. (Aliant Telecom) filed an application pursuant to Part VII of the CRTC Telecommunications Rules of Procedure, requesting that the Commission forbear from regulating high capacity and digital data services interexchange private line (IXPL) services along various routes in its territory. Aliant Telecom also requested relief from the competitive harm it experienced from the alleged failure by EastLink Limited (EastLink) and Bragg Communications Inc. (Bragg), its affiliates and subsidiaries, to report these routes. In addition, Aliant Telecom alleged that EastLink obtained an undue preference from Bragg in respect to the provision of IXPL services, since Aliant Telecom could not obtain IXPL services from Bragg at the same terms and conditions as EastLink.
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2.
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On 18 September 2002 and 23 September 2002, EastLink reported a number of routes pursuant to Follow-up Proceeding to Telecom Decision CRTC 97-20: Establishment of criterion and process for considering further forbearance from High Capacity/DDS interexchange private line services, Telecom Order CRTC 99-434, 12 May 1999 (Order 99-434). TELUS Communications Inc. (TCI) filed a letter of intervention on 19 September 2002.
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3.
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On 25 October 2002, Aliant Telecom and EastLink responded to interrogatories that had been sent by the Commission to Aliant Telecom, EastLink and Bragg, by EastLink to Aliant Telecom, and by Aliant Telecom to EastLink and Bragg. EastLink responded for both Bragg and EastLink. On 8 November 2002, EastLink and Aliant Telecom provided reply comments.
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Background
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4.
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The Commission's power to forbear from regulating a telecommunications service or class of services provided by a Canadian carrier originates from section 34 of the Telecommunications Act (the Act), which reads as follows:
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34. (1) The Commission may make a determination to refrain, in whole or in part and conditionally or unconditionally, from the exercise of any power or the performance of any duty under sections 24, 25, 27, 29 and 31 in relation to a telecommunications service or class of services provided by a Canadian carrier, where the Commission finds as a question of fact that to refrain would be consistent with the Canadian telecommunications policy objectives.
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(2) Where the Commission finds as a question of fact that a telecommunications service or class of services provided by a Canadian carrier is or will be subject to competition sufficient to protect the interests of users, the Commission shall make a determination to refrain, to the extent that it considers appropriate, conditionally or unconditionally, from the exercise of any power or the performance of any duty under sections 24, 25, 27, 29 and 31 in relation to the service or class of services.
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(3) The Commission shall not make a determination to refrain under this section in relation to a telecommunications service or class of services if the Commission finds as a question of fact that to refrain would be likely to impair unduly the establishment or continuance of a competitive market for that service or class of services.
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(4) The Commission shall declare that sections 24, 25, 27, 29 and 31 do not apply to a Canadian carrier to the extent that those sections are inconsistent with a determination of the Commission under this section.
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5.
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The Canadian telecommunications policy objectives set out at section 7 of the Act include the following:
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(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;
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(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;
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(h) to respond to the economic and social requirements of users of telecommunications services.
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6.
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The Commission established a framework for considering whether or not to forbear in Review of regulatory framework, Telecom Decision CRTC 94-19, 16 September 1994 (Decision 94-19).
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7.
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The Commission, in Stentor Resource Centre Inc. - Forbearance from regulation of interexchange private line services, Telecom Decision CRTC 97-20, 18 December 1997 (Decision 97-20), further to an analysis in accordance with the framework set out in Decision 94-19, granted forbearance pursuant to section 34 of the Act with respect to the provision of IXPL services by the incumbent local exchange carriers (ILECs) for the routes identified in that decision. The Commission found that forbearance from regulation of the routes at issue would, under subsection 34(1) of the Act, be consistent with the Canadian telecommunications policy objectives set out in section 7 of the Act, including paragraphs 7(c) and (f). The Commission also found that it would be appropriate to forbear under subsection 34(2) of the Act on the basis that the forborne services are or will be subject to a level of competition sufficient to protect the interests of users. Finally, the Commission found, pursuant to subsection 34(3) of the Act, that to forbear would not impair unduly the establishment or continuance of a competitive market for the forborne services.
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8.
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The Commission, in Decision 97-20, noted that IXPL services were offered and provided on a route-specific basis and customers required these services on one or more routes. The Commission determined that each route should be considered as a separate market for purposes of forbearance analysis, and that forbearance is appropriate for routes for which rivalrous competition exists or will exist in the near future.
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9.
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The Commission later determined in Order 99-434 that, given that the IXPL market is route-specific, forbearance from a route is appropriate if there is at least one competitor that provides, or that is offering to provide, IXPL services, at DS-3 or greater bandwidth, on that route using facilities other than facilities obtained from the ILEC or an affiliate of the ILEC.
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10.
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The Commission, in Order 99-434, directed competitors to report to the Commission semi-annually their new IXPL routes that meet the above-mentioned criterion. The Commission also stated that ILECs may request forbearance from regulation of IXPL routes that competitors have failed to report.
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11.
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With respect to the scope of forbearance, the Commission, in Decision 97-20, forbore from the exercise of its powers and duties under section 25, subsections 27(1) and 27(2) and section 31 of the Act. The Commission found it appropriate to impose conditions pursuant to section 24 of the Act with respect to the protection of customer confidential information and the bypass of Canadian telecommunications services and facilities. In addition, the Commission retained its powers pursuant to section 24 of the Act to impose future conditions upon the forborne services provided by the ILECs, where the circumstances so warrant.
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12.
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The Commission considered, in Decision 97-20, that it was appropriate to retain its powers pursuant to subsection 27(3) of the Act to the extent that this subsection did not refer to compliance with powers and duties not forborne from in that decision.
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13.
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The Commission also found it appropriate to continue to exercise its powers under section 29 of the Act with respect to the requirement to file for Commission approval agreements or other arrangements.
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The application
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Part I - Aliant Telecom's application for forbearance from regulation of additional IXPL routes
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Aliant Telecom's application
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14.
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Aliant Telecom submitted that EastLink and Bragg were non-compliant with Order 99-434 in respect to a number of routes. Aliant Telecom submitted that EastLink and Bragg should have reported the following IXPL routes, pursuant to the direction set out in the order:
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a) routes from Halifax to New Glasgow, Halifax to Sackville, N.B., and Halifax to Charlottetown used by EastLink and Bragg to provide Internet access at gigabit bandwidth to three universities;
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b) routes where EastLink and Bragg provided IXPL services, including the route from Halifax to New Glasgow, the route between Halifax and Sydney, and any other route where EastLink and Bragg quoted to provide IXPL services; and
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c) routes between Halifax and local exchanges where EastLink provides local telephone services, which are listed in Appendix 1.
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15.
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Aliant Telecom submitted that the routes identified in paragraphs 14 (a) and (b), above, met the forbearance criterion of Order 99-434. Aliant Telecom noted that IXPL services on a route should be forborne from when a competitor offers IXPL services on that route.
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16.
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Aliant Telecom submitted that EastLink should also have reported that it provided IXPL services on the routes identified in paragraph 14 (c), above, since EastLink required IXPL services to provide local telephone service in various local exchanges in Nova Scotia.
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17.
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With respect to the routes EastLink required to provide local telephone service, Aliant Telecom argued that since EastLink's switch and EastLink's point of interconnection with Aliant Telecom were situated in Halifax, EastLink required IXPL services at DS-3 or greater bandwidth to provide cable high speed Internet access, broadband, and local services to retail customers in various local exchanges in Nova Scotia. Aliant Telecom stated that EastLink did not have transmission facilities, and thus must obtain the IXPL services from Bragg, who holds the cable licenses in the exchanges where EastLink offered telephone service. Accordingly, Aliant Telecom argued that, since Bragg is a carrier and not an affiliate of Aliant Telecom, all routes between Halifax and the local exchanges where EastLink provided local service met the criteria for forbearance pursuant to Order 99-434.
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18.
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Aliant Telecom argued that EastLink is a separate legal entity from Bragg, based on the following:
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- EastLink was a registered competitive local exchange carrier (CLEC);
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- EastLink had signed an interconnection agreement with Maritime Tel & Tel Limited;
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- EastLink had entered into agreements with Aliant Telecom's Carrier Services Group;
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- EastLink was not a signatory to any Support Structure Agreements, indicating that EastLink did not support facilities over which to deliver service; and
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- Bragg operating companies that, according to EastLink, were providing local telephone service (Halifax Cablevision Ltd., K-Right Communications Limited, Bay Communications Incorporated and Access Communications) were not registered as CLECs.
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19.
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Aliant Telecom also argued that even if EastLink was not the legal entity providing telephone service, each Bragg entity located outside Halifax that provided telephone service would have had to obtain IXPL services of DS-3 or greater bandwidth from at least one other company. Thus, Aliant Telecom submitted that regardless of which Bragg entity provided local service, the service provider required IXPL services of DS-3 or greater bandwidth to carry local traffic between the local exchange and Halifax, the point of interconnection with Aliant Telecom and EastLink's sole switch.
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20.
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Aliant Telecom argued that as long as the legal entities differed, a carrier to carrier relationship existed between the different Bragg legal entities, and the requirements of Order 99-434 had been met. In addition, Aliant Telecom argued that forbearance was indicated by EastLink's willingness to offer IXPL services over these routes.
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21.
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Aliant Telecom submitted that EastLink and Bragg were reminded of their obligation to file IXPL routes in a Commission letter dated 5 April 2002, and the matter of non-compliance with Order 99-434 received further attention with the Part VII application filed by TCI on 18 June 2002.
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22.
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Aliant Telecom also submitted that it had suffered direct and specific harm because EastLink and Bragg did not report, pursuant to Order 99-434, the IXPL routes indicated in paragraph 14, above, which met the criteria for forbearance. Aliant Telecom stated that absent forbearance, it was unfairly restricted from making competitive bids for high-speed data services on certain routes, and could not respond in flexible and innovative ways to customer requests for IXPL services.
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23.
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Aliant Telecom requested the following relief:
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- a Commission order forbearing from IXPL services on routes between Halifax and the localities where EastLink offered local service, and the routes between Halifax and New Glasgow, Halifax and Sackville, N.B., and Halifax and Charlottetown;
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- a report from EastLink, filed on the public record by 1 October 2002, showing all additional routes where EastLink is offering or providing IXPL services at DS-3 or greater bandwidth, and the dates when EastLink offered or first provided service;
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- an affidavit signed by a senior executive of EastLink attesting to the accuracy of the 1 October 2002 report;
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- that EastLink file each 1 April and 1 October a revised report showing all its IXPL routes, including "nil" reports if EastLink has not opened any new routes;
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- that the next four semi-annual reports be accompanied by an affidavit by a senior executive attesting to the correctness and completeness of the reports; and
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- any other remedy the Commission considers appropriate against EastLink and Bragg, taking into consideration the severity of the infraction and the harm to Aliant Telecom.
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EastLink's comments
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24.
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EastLink acknowledged that the routes between Halifax and New Glasgow, Halifax and Sackville, N.B., and Halifax and Charlottetown that connected the universities to the Internet met the criteria set out in Order 99-434.
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25.
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EastLink indicated that it quoted to provide IXPL services at DS-3 bandwidth between Halifax and Truro, Halifax and Yarmouth and Halifax and Sackville, N.S. However, EastLink submitted that it did not provide IXPL services on any of these routes. EastLink also stated it did not have facilities of DS-3 or greater bandwidth between Halifax and Sydney.
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26.
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EastLink argued that the Commission should not forbear from regulating the IXPL services on routes between Halifax and the local exchanges where EastLink provided local telephone services.
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27.
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EastLink indicated that because of cost considerations, it had only one switch in Halifax, and would add additional switches if it became necessary to do so. EastLink also observed that telephone companies often served several local exchanges from one switch. EastLink indicated that with its network, a local call often crossed exchange boundaries and transited different corporate entities, so that calls could be switched in Halifax.
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28.
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EastLink stated that it provided IXPL services using its fibre optic network, which was equipped with SONET electronics. EastLink stated that, for example, it had a fibre optic system that linked Halifax to New Glasgow, which was constructed to carry cable television, Internet and telephone service between its head-end locations in Halifax and New Glasgow. EastLink stated that where a customer sought high capacity bandwidth, EastLink was required to add incremental SONET electronics and place fibre optic and SONET equipment to the specific customer end points in each of the Halifax and New Glasgow exchanges.
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29.
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EastLink submitted that it did not provide IXPL services over these routes, that there was no evidence of a market for IXPL services over these routes, and that Aliant Telecom did not provide IXPL services over many of the routes for which it requested forbearance.
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30.
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EastLink argued that competitive entry would be discouraged if IXPL routes were deregulated following commencement of competitive local service. EastLink argued that if Aliant Telecom wished forbearance from regulation of IXPL services along the specified routes, it should have filed an application for forbearance.
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31.
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EastLink argued that Aliant Telecom's case for forbearance from regulation of these routes rested on the assumption that Bragg and EastLink were different legal entities, so that one entity, EastLink, obtained IXPL services from another entity, Bragg, which was not an ILEC, thus apparently meeting the criterion of Order 99-434.
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32.
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EastLink submitted that EastLink and Bragg were not two separate legal entities. EastLink submitted that the corporate entity "EastLink Limited" was wound up as of 31 August 2002. EastLink indicated that "EastLink" was a registered business name, and that Bragg and its wholly owned subsidiaries, Halifax Cablevision Ltd., K-Right Communications Limited, Bay Communications Incorporated and Access Communications provided telephone service to customers. EastLink argued that in each case, the telephone service provider and the corporate entity were the same, so that Bragg was not providing IXPL services to EastLink, and EastLink was not a customer of Bragg.
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33.
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With respect to Aliant Telecom's request for relief due to the alleged late filing by EastLink, EastLink argued that it had not unduly harmed Aliant Telecom, because:
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- Aliant Telecom filed its Part VII application more than seven months after it became aware that EastLink was offering IXPL services on one route;
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- EastLink's service to Charlottetown was public knowledge, and Aliant Telecom could have protected itself; and
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- EastLink did not provide IXPL services between Halifax and the exchanges where it offered local service, there was no evidence of competition, and there was a questionable market for IXPL services along these routes.
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34.
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Accordingly, EastLink requested that Aliant Telecom's application be dismissed.
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TCI's comments
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35.
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TCI submitted that the Commission should quickly forbear from routes that meet the forbearance criterion, and that Aliant Telecom's application be dealt with on its own merits, separate from TCI's application for a new process for considering forbearance from IXPL routes.
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Commission analysis and determination
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36.
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The Commission notes that, while subsection 34(1) of the Act provides that the Commission may refrain from regulating a service or class of services when it finds that such forbearance is consistent with the Canadian telecommunications policy objectives, subsection 34(2) of the Act requires it to forbear where it finds that the market for the service in question is, or will be, subject to sufficient competition to protect the interests of users. The Commission also notes, however, that subsection 34(3) of the Act provides that the Commission shall not forbear if it finds that to do so would be likely to impair unduly the establishment or continuance of a competitive market for that service.
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a) IXPL routes used by EastLink to connect customers to the Internet
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37.
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In accordance with Order 99-434, the Commission finds it appropriate to forbear from regulating the IXPL services along the routes where EastLink provides IXPL services of at least DS-3 bandwidth and connects customers to the Internet. These are the routes between Halifax and Charlottetown, Halifax and New Glasgow, and Halifax and Sackville, N.B., since supply from EastLink is a competitive alternative to Aliant Telecom's IXPL services.
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b) IXPL routes where EastLink has at least DS-3 capacity, and has quoted to provide IXPL services
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38.
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In accordance with Order 99-434, the Commission finds it appropriate to forbear from regulating the IXPL services along the routes where EastLink has stated that it has offered to provide IXPL services of at least DS-3 bandwidth. These are the routes between Halifax and Sackville, N.S., Halifax and Truro, and Halifax and Yarmouth.
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c) IXPL routes between Halifax and the local exchanges where EastLink provides local services
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39.
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The Commission considers that the use being made of the network by EastLink is very different from the circumstances described in Decision 97-20 and Order 99-434 in which the Commission stated that it would grant forbearance on a particular route where a party is offering to provide, or actually providing, IXPL services using facilities not obtained from an ILEC or an affiliate of the ILEC. As illustrated by EastLink's description of how it provides IXPL services using its fibre optic network, the network was built in order for various related Bragg cable companies to carry cable television, Internet and telephone service between its head-end locations, for example in Halifax and New Glasgow. The Commission is therefore of the view that providing services to an affiliate like EastLink described above does not satisfy the criteria set out in Order 99-434, because EastLink is not seeking customers that will use the facilities along the routes.
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40.
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Since EastLink neither offers to provide, nor provides, IXPL services to an arm's-length entity the Commission is of the view that there is no evidence of a competitive alternative to IXPL services available from Aliant Telecom. The Commission considers that, with forbearance, there would not be sufficient competition to protect user interests in the market for IXPL services. Therefore, the Commission finds that the IXPL routes between Halifax and the local exchanges where EastLink and Bragg provide local service, except with respect to the routes for which forbearance is indicated in this decision, do not satisfy the criteria under section 34 of the Act for a forbearance determination by the Commission.
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41.
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Accordingly, the Commission finds it appropriate:
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a) to forbear from the following IXPL routes:
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Halifax to New Glasgow
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Halifax to Sackville, N.B.
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Halifax to Sackville, N.S.
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Halifax to Charlottetown
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Halifax to Truro
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Halifax to Yarmouth
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b) not to forbear from regulation of IXPL services on routes between Halifax and the local exchanges where EastLink is backhauling traffic to its switch, except for the routes indicated above.
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Application of subsections 34(1), (2) and (3) of the Act
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42.
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The Commission finds, pursuant to subsection 34(1) of the Act, as a question of fact, that to refrain from the exercise of its powers and the performance of its duties, to the extent set out in this decision, with respect to the regulation of the IXPL services on the routes listed in paragraph 41 (a), above, is consistent with the Canadian telecommunications policy objectives set out in section 7 the Act.
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43.
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The Commission also finds, pursuant to subsection 34(2) of the Act, as a question of fact, that it is appropriate to refrain from regulating the IXPL services on the routes listed in paragraph 41 (a), above, to the extent set out in this decision, on the basis that the forborne services are subject to a level of competition sufficient to protect the interests of users of these services.
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44.
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Finally, the Commission finds, pursuant to subsection 34(3) of the Act, as a question of fact, that refraining from regulating the IXPL services for the routes listed in paragraph 41 (a), above, to the extent set out in this decision, is unlikely to impair unduly the continuance of a competitive market for these services.
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45.
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In light of these findings, the Commission must determine the extent to which it is appropriate to refrain, in whole or in part, and conditionally or unconditionally, from the exercise of any powers or the performance of any duty under sections 24, 25, 27, 29 and 31 of the Act.
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Section 24
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46.
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Section 24 of the Act provides:
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24. The offering and provision of any telecommunications service by a Canadian carrier are subject to any conditions imposed by the Commission or included in a tariff approved by the Commission.
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47.
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The Commission considers that it is appropriate to retain its powers pursuant to section 24 of the Act to ensure that the confidentiality of customer information continues to be protected. Accordingly, the Commission directs Aliant Telecom, on a going forward basis, to incorporate, where appropriate, the existing conditions regarding disclosure of confidential customer information to third parties into all contracts and any other arrangements for the provision of the services forborne from regulation in this decision.
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48.
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The Commission considers that it is also appropriate to retain sufficient powers under section 24 of the Act to specify possible future conditions upon the forborne services provided by Aliant Telecom, where circumstances so warrant.
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49.
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The Commission notes that the restrictions against the bypass of Canadian telecommunications services and facilities were terminated in Regulatory regime for the provision of international telecommunications services, Telecom Decision CRTC 98-17, 1 October 1998. Therefore, there is no need to impose a condition with respect to bypass pursuant to section 24 of the Act as was done in Decision 97-20.
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Section 25
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50.
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Section 25 of the Act provides:
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25. (1) No Canadian carrier shall provide a telecommunications service except in accordance with a tariff filed with and approved by the Commission that specifies the rate or the maximum or minimum rate, or both, to be charged for the service.
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(2) A joint tariff agreed on by two or more Canadian carriers may be filed by any of the carriers with an attestation of the agreement of the other carriers.
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(3) A tariff shall be filed and published or otherwise made available for public inspection by a Canadian carrier in the form and manner specified by the Commission and shall include any information required by the Commission to be included.
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(4) Notwithstanding subsection (1), the Commission may ratify the charging of a rate by a Canadian carrier otherwise than in accordance with a tariff approved by the Commission if the Commission is satisfied that the rate
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(a) was charged because of an error or other circumstance that warrants the ratification; or
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(b) was imposed in conformity with the laws of a province before the operations of the carrier were regulated under any Act of Parliament.
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51.
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The Commission considers it appropriate that Aliant Telecom no longer be required to file tariffs and obtain the Commission's approval in respect of the forborne services in this decision. Accordingly, the Commission will refrain from the exercise of all of its powers and the performance of all of its duties under section 25 of the Act with respect to the forborne services in this decision.
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Section 27
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52.
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Section 27 of the Act provides:
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27. (1) Every rate charged by a Canadian carrier for a telecommunications service shall be just and reasonable.
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(2) No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.
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(3) The Commission may determine in any case, as a question of fact, whether a Canadian carrier has complied with section 25, this section or section 29, or with any decision made under section 24, 25, 29, 34 or 40.
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(4) The burden of establishing before the Commission that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the Canadian carrier that discriminates, gives the preference or subjects the person to the disadvantage.
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(5) In determining whether a rate is just and reasonable, the Commission may adopt any method or technique that it considers appropriate, whether based on a carrier's return on its rate base or otherwise.
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(6) Notwithstanding subsections (1) and (2), a Canadian carrier may provide telecommunications services at no charge or at a reduced rate
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(a) to the carrier's directors, officers, employees or former employees; or
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(b) with the approval of the Commission, to any charitable organization or disadvantaged person or other person.
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53.
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The Commission considers that there is no need to apply the regulatory standards for "just and reasonable" rates to rates that are set in a competitive market. Accordingly, the Commission will refrain from the exercise of all of its powers and the performance of all of its duties under subsection 27(1) of the Act with respect to the services forborne from in this decision. Similarly, the Commission will refrain from the exercise of all of its powers and the performance of all of its duties under subsection 27(2) of the Act.
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54.
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However, the Commission considers it necessary to retain its powers under subsection 27(3) of the Act with respect to compliance with powers and duties not forborne from in this decision.
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55.
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The Commission will also forbear from all of its powers under subsections 27(4), (5) and (6) of the Act, since these subsections relate to subsections 27(1) and (2) of the Act with respect to which the Commission is forbearing in this decision.
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Section 29
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56.
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Section 29 of the Act provides:
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29. No Canadian carrier shall, without the prior approval of the Commission, give effect to any agreement or arrangement, whether oral or written, with another telecommunications common carrier respecting
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(a) the interchange of telecommunications by means of their telecommunications facilities;
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(b) the management or operation of either or both of their facilities or any other facilities with which either or both are connected; or
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(c) the apportionment of rates or revenues between the carriers.
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57.
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The Commission considers it appropriate to continue to exercise its powers under section 29 of the Act to the extent discussed in Decision 97-20.
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Section 31
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58.
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Section 31 of the Act provides:
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31. No limitation of a Canadian carrier's liability in respect of a telecommunications service is effective unless it has been authorized or prescribed by the Commission.
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59.
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The Commission considers it appropriate that Aliant Telecom be able to limit its liability with respect to the provision of the forborne services on the routes listed in paragraph 43 (a), above. Any provision limiting liability in existing contracts or arrangements will continue to remain in force until their expiry. A contract or arrangement will be deemed to terminate on the date or in the manner provided therein as of the date of this decision, notwithstanding extensions provided for therein.
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Declaration pursuant to subsection 34(4) of the Act
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60.
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In light of the above, the Commission declares, pursuant to subsection 34(4) of the Act, that sections 24, 25, 27 and 31 of the Act do not apply to Aliant Telecom's IXPL services on the routes identified in paragraph 43 (a), above, except with respect to:
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a) the conditions pursuant to section 24 of the Act set out in this decision with respect to the confidentiality of customer information;
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b) any future condition that the Commission may impose, pursuant to section 24 of the Act; and
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c) the Commission's powers under subsection 27(3) of the Act with respect to compliance with powers and duties not forborne from in this decision.
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Tariff filings
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61.
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The Commission directs Aliant Telecom to issue revised tariff pages forthwith deleting the tariffs for the services on the routes identified in paragraph 43 (a), above, effective on the date of issuance of the tariff pages.
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Other relief requested by Aliant Telecom
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62.
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Aliant Telecom requested that EastLink be required to submit affidavits signed by senior executives when filing its semi-annual reports and be required to file revised reports each 1 April and 1 October, including "nil" reports, and requested that the Commission order any other remedy it considers appropriate, considering the severity of the infraction and the harm to Aliant Telecom.
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63.
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The Commission considers that it is not appropriate at this time to grant the additional relief sought by Aliant Telecom. The Commission notes that there was no obligation for EastLink to report many of the routes Aliant Telecom considered should have been reported. The Commission considers that the fact that EastLink has now reported the routes it should have, indicates that the company intends to comply with the filing requirements. The Commission also considers that the ILEC's ability to file, at any time, requests for forbearance from IXPL services on routes that competitors have failed to report, serves as a fundamental check and balance against inaccurate reporting of routes by competitors.
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Importance of compliance
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64.
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The Commission considers that EastLink is familiar with Commission procedures, and that EastLink should have reported the IXPL routes identified in paragraph 41 (a), above, in accordance with Order 99-434. The Commission reminds EastLink of the importance of complying with all applicable regulatory requirements, including in accordance with Order 99-434, reporting changes to its IXPL routes in an accurate, complete and timely manner. The Commission notes that it can itself take the necessary steps to enforce such compliance where it considers it necessary.
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Part II - Aliant Telecom's allegations of undue preference
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Aliant Telecom's application
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65.
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Aliant Telecom submitted that pursuant to paragraph 9 of the Broadcasting Distribution Regulations (BDRs), Bragg was restricted from providing an undue preference to EastLink or any other party. Aliant Telecom argued that if Bragg provided capacity to EastLink, Bragg would also have been obligated to offer capacity to other non-related entities. Aliant Telecom argued that, unless Bragg made the facilities available to others, including Aliant Telecom, on the same terms and conditions as to EastLink or other Bragg entities, it would have been extending an undue preference to EastLink, contrary to the BDRs.
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66.
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Aliant Telecom also requested a full explanation of EastLink's corporate relationships and arrangements.
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EastLink's comments
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67.
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EastLink did not comment on Aliant Telecom's allegations of undue preference. EastLink submitted that this proceeding was not the appropriate forum to discuss issues regarding EastLink's corporate structure.
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Commission analysis and determination
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68.
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In Forbearance - Services provided by non-dominant Canadian carriers, Telecom Decision CRTC 95-19, 8 September 1995, the Commission forbore from regulating the services provided by non-dominant Canadian carriers, but retained its powers and duties under subsection 27(2) of the Act with respect to issues related to access to the networks of competing carriers and the resale and sharing of their services. The Commission notes that EastLink is operating as a non-dominant carrier.
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69.
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The Commission is of the view that, with respect to the IXPL services on routes for which forbearance is granted in this decision, the question of an undue preference under the Act does not arise at this time, because there is no evidence that EastLink and Bragg are not prepared to provide IXPL services to any arm's length party, including Aliant Telecom, that wishes to obtain IXPL services from EastLink and Bragg.
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70.
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Further, the Commission is of the view, that along the routes between Halifax and the local exchanges where EastLink provides local service, the question of whether EastLink acts contrary to subsection 27(2) of the Act does not arise, since EastLink is not providing IXPL services to an arm's length party, but only backhauling traffic as part of its local network.
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71.
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The Commission is also of the view that EastLink is not acting as a broadcasting distribution undertaking pursuant to the BDRs when it is backhauling telephone-related traffic as a part of its network to provide local telephone service.
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72.
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Accordingly, the Commission dismisses Aliant Telecom's allegation of undue preference under the Act and the BDRs.
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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: www.crtc.gc.ca
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Appendix 1
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Local exchanges where EastLink provided local telephone services
at the time of Aliant Telecom's application
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Antigonish
Bridgewater
Charlottetown
Chester
Collingwood
Halifax
LaHave
Liverpool
Lunenburg
Mahone Bay
Mill Village
New Glasgow
Oxford
Port Mouton
Riverport
Sackville, N.S.
Truro
Yarmouth
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Date Modified: 2003-11-03