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Telecom Decision CRTC 2003-82

Ottawa, 4 December 2003

Terms and conditions of existing agreements for access to municipal rights-of-way

Reference: 8690-C12-03/01, 8690-A4-01/01 and 8690-A4-04/02

In this decision, the Commission considers that the provisions of the Telecommunications Act, including section 43, do not contemplate that the Commission could issue a broad direction requiring parties to bring all existing municipal access arrangements (MAAs) into conformity with a set of guidelines similar to those articulated in Ledcor/Vancouver - Construction, operation and maintenance of transmission lines in Vancouver, Decision CRTC 2001-23, 25 January 2001. The Commission is prepared to consider applications from Canadian carriers seeking to establish that municipal consent was not obtained on terms acceptable to the carrier with the onus on the Canadian carrier applying to the Commission to establish that the signed MAA does not represent proof that the Canadian carrier has obtained, on terms acceptable to it, the consent of the municipality to construct a transmission line.

The Commission sets out further process for consideration of the Part VII applications filed by Allstream Corp. (Allstream) against the City of Toronto (Toronto) and the City of Calgary that were suspended pending the issuance of this decision. The Commission finds that interveners do not have the right to intervene in Allstream's Part VII application against Toronto and will therefore not consider those interventions in reaching a determination on this application.

Background

1. On 28 May 2001, AT&T Canada Corp., (subsequently renamed Allstream Corp.) on behalf of itself and AT&T Canada Telecom Services Company (collectively Allstream) filed a Part VII application which requested that the Commission change the terms and conditions of its existing municipal access agreement (MAA) with the Corporation of the City of Toronto (Toronto) to make those terms and conditions consistent with the principles set out in Ledcor/Vancouver - Construction, operation and maintenance of transmission lines in Vancouver, Decision CRTC 2001-23, 25 January 2001 (Decision 2001-23).

2. The Commission suspended its consideration of the Part VII application and issued Terms and conditions of existing agreements for access to municipal property, Public Notice CRTC 2001-99, 31 August 2001 (Public Notice 2001-99). In Public Notice 2001-99, the Commission stated that it would consider, given the framework set out in subsections 43(1) to 43(4) and any other relevant provisions of the Telecommunications Act (the Act) and the principles laid out in Decision 2001-23, what circumstances, if any, would justify an intervention by the Commission to alter the terms of an existing contract between a carrier and a municipality for access to municipal rights-of-way.

3. On 24 June 2002, Allstream filed another Part VII application which requested that the Commission change the terms and conditions of its existing MAA with the City of Calgary (Calgary) to make those terms and conditions consistent with the principles set out in Decision 2001-23. The Commission, in AT&T Canada Corp. Part VII application re: City of Calgary, Telecom Decision CRTC 2002-46, 9 August 2002, suspended consideration of this Part VII application until such time as the Commission had reached a decision on the issues raised in Public Notice 2001-99.

Process

4. Allstream and Toronto were made parties to this proceeding. The Commission also made the existing MAA between Allstream and Toronto part of the record of this proceeding.

5. The Commission received submissions from the following municipalities and association: Calgary, the City of Edmonton (Edmonton), the Federation of Canadian Municipalities (FCM), Halifax Regional Municipality (Halifax), the City of Ottawa, Toronto and the City of Vancouver (Vancouver) (collectively, the municipalities).

6. The following municipalities, county and association sent letters which indicated general support for the submissions filed by Toronto and the FCM: the City of Aidrie, the Association of Municipalities of Ontario, the Corporation of the City of Burlington, the Municipality of Digby, the Municipal District of East Peace No. 131, the Town of Fort Erie, the City of Kitchener, the Corporation of the District of Maple Ridge, the City of Mississauga, the City of Prince Albert, the City of Prince George, the Town of Qualicum Beach, the City of Richmond and Strathcona County.

7. The Commission received submissions from the following carriers and association: Allstream; Bell Canada; the Canadian Cable Television Association (CCTA); Futureway Communications Inc. (subsequently renamed FCI Broadband), GT Group Telecom Services Corp. (subsequently renamed LondonConnect Inc.) and Call-Net Enterprises Inc. (jointly LondonConnect et al.), TELUS Communications Inc. (TELUS) and Vidéotron Télécom ltée (Vidéotron) (collectively, the carriers).

8. The Commission also received comments from Mr. François Ménard.

Positions of the parties

The municipalities

9. The municipalities submitted that it was not within federal constitutional jurisdiction to regulate MAAs between carriers and municipalities unless a vital part of a federal undertaking was being sterilized. Toronto also submitted that disputes arising from existing MAAs were contractual in nature and were therefore within the jurisdiction of the provincial superior courts.

10. The municipalities further submitted that section 43 of the Act provided a complete statutory code with respect to construction issues involving carriers and municipalities and did not provide the Commission the statutory authority to intervene in existing MAAs. The municipalities argued that section 43 provided a carrier with two choices: either negotiate an MAA with a municipality or apply to the Commission where it had been unable to obtain the municipality's consent on terms and conditions acceptable to it. The municipalities submitted that the existence of an MAA was conclusive evidence of municipal consent and confirmed that there was no longer a dispute between a carrier and a municipality as to the terms and conditions of access to municipal rights-of-way.

11. The FCM submitted that section 43 of the Act necessarily addressed both the carriers' interest in obtaining access to municipal rights-of-way and the municipalities' interest in ensuring that the use and occupancy of municipal rights-of-way was consistent with the interests of its constituents. The FCM submitted that municipalities, in granting access to municipal rights-of-way, could therefore attach terms and conditions to their consent that extended beyond the initial construction to protect their interests as well as those of their taxpayers and other users of the rights-of-way.

12. The municipalities submitted that other sections of the Act did not provide the Commission with the authority to intervene in existing MAAs since, in their view, section 43 of the Act provided a complete statutory code with respect to construction issues involving carriers and municipalities.

13. The municipalities argued that carriers who chose to enter into MAAs instead of applying to the Commission should not be allowed to renege on their contractual obligations. They submitted that if the Commission were to intervene in existing agreements, commercial chaos would result and carriers would be encouraged to negotiate in bad faith with municipalities to gain faster access to municipal rights-of-way. The municipalities argued that such a situation would deter municipalities from negotiating consensual MAAs with carriers. The municipalities further argued that if the Commission was concerned with creating a level playing field among all carriers with respect to access to municipal rights-of-way, it should require incumbent local exchange carriers (ILECs) to negotiate MAAs with municipalities on the same basis as competitive local exchange carriers (CLECs), instead of altering existing MAAs.

The carriers

14. The carriers submitted that the Act and, in particular, section 43, gave the Commission the authority to intervene in existing MAAs. Allstream submitted that section 43 created a substantive right for carriers to construct, maintain and operate their facilities on municipal lands, subject only to the procedural requirement that carriers obtain municipal consent for construction and not unduly interfere with the public use and enjoyment of the municipal lands. Allstream, the CCTA and LondonConnect et al. all submitted that the sole precondition on the exercise of the Commission's authority, under section 43, was whether the terms of access, either being negotiated or pursuant to an existing agreement, were, or continued to be, satisfactory to the carrier regardless of whether there was an MAA in place or not. The CCTA also submitted that section 43 should be interpreted broadly to give the Commission full discretion to make orders that were consistent with the policy objectives of the Act.

15. Many of the carriers argued that section 32 of the Act also provided the Commission with the authority to intervene in existing MAAs. These carriers submitted that under section 32, the Commission may disallow or substitute any portion of an agreement which is inconsistent with Part III of the Act. The carriers thus submitted that, since section 43 of the Act is found in Part III of the Act, the Commission could use section 32 to disallow any portion of an MAA inconsistent with the principles laid out in Decision 2001-23 and then replace the disallowed portion with terms and conditions which were consistent with the principles set out in Decision 2001-23.

16. LondonConnect et al. submitted that where MAAs included the provision of telecommunications services, such as the lease of dark fibre, the Commission had the jurisdiction to review and revise the MAA pursuant to its powers under section 24 of the Act.

17. TELUS and LondonConnect et al. submitted that section 47 of the Act requires the Commission to exercise its powers and perform its duties with a view to implementing the policy objectives of the Act. TELUS also submitted that the principles established in Decision 2001-23 were intended to further the Act's policy objectives and that MAAs which did not comply with Decision 2001-23 were, by extension, inconsistent with the Act's policy objectives.

18. Allstream, TELUS, the CCTA and LondonConnect et al. submitted that the scope of section 42 of the Act was not limited to the scope of powers under sections 43 and 44 of the Act but complemented the powers that the Commission had under other provisions of the Act. Allstream and TELUS argued that the Commission could, under section 42, intervene in existing MAAs to permit a carrier to construct, operate, use or maintain its facilities subject only to "such conditions as to compensation or otherwise and under such supervision as the Commission determines to be just and expedient".

19. Allstream submitted that where a municipality seeks to impose a condition of access that is inconsistent with the subsection 43(2) substantive right of access, it is acting in a manner prohibited by the Act. According to Allstream, section 51 of the Act allows the Commission to make an order, enforceable by the Federal Court of Canada, forbidding behaviour prohibited by the Act.

20. Allstream submitted that the Commission could use subsections 55(c) and (e) of the Act to provide a carrier with injunctive relief where the conditions imposed by a municipality were in breach of a carrier's statutory rights.

21. The carriers also relied on previous Commission and court decisions to support their position that the Commission had the authority to modify existing MAAs. The CCTA submitted that in Part VII Application - Access to supporting structures of municipal power utilities - CCTA vs. MEA et al. - Final decision, Telecom Decision CRTC 99-13, 28 September 1999 (Decision 99-13), the Commission had concluded that it had jurisdiction under subsection 43(5) of the Act to establish the terms and conditions of access to support structures, notwithstanding the existence of an agreement, where the person seeking access is unable to gain access on acceptable terms. The CCTA noted that subsection 43(5) contains wording similar to that used in subsection 43(4) of the Act. The CCTA and LondonConnect et al. also submitted that in British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. (BC TEL v. Shaw), Saskatchewan Power Corp. v. TransCanada Pipelines Ltd., [1981] 2 S.R.C. 688, and Dow Chemical Canada Inc. v. Union Gas Ltd. (1983), 43 O.R. (2d) 731 (Ont. C.A.), the courts had established the principle that parties could not bypass, by means of an agreement, the policies established by a regulatory body pursuant to its exclusive authority. The carriers submitted that where an existing MAA contained terms and conditions that had the effect of circumventing the policy principles established by the Commission, the Commission had the authority to disallow the impugned provisions and to replace them with terms and conditions consistent with its regulatory framework.

22. Allstream submitted that the Commission, if it did not intervene in existing MAAs, would effectively create three classes of carriers:

23. The CCTA submitted that absent Commission intervention in existing MAAs, a carrier's only recourse would be to make an application to the Commission before entering into an MAA with a municipality. The CCTA argued that the delays involved in disposing of such an application would undermine the effectiveness of the Commission's regulatory framework and its policies with respect to access to rights-of-way and competition in the provision of telecommunications services.

24. LondonConnect et al. and FCI Broadband submitted that the issues in this proceeding needed to be examined in light of the Commission's policy objective of facilities-based competition in the local exchange service market. LondonConnect et al. submitted that Decision 2001-23 supported this objective by trying to provide a more level playing field between CLECs and ILECs. LondonConnect et al. further submitted that Decision 2001-23 redressed the bargaining imbalance between carriers and municipalities. LondonConnect et al. argued that municipalities, because they control access to rights-of-way, could extract "monopoly rents" from carriers seeking access to them. LondonConnect et al. argued that CLECs and other new entrants were particularly vulnerable to unreasonable terms and conditions because of the pressure to build out their networks quickly or face the consequences of losing their customers and financing.

25. Vidéotron submitted that municipalities had a dominant position when negotiating with carriers because of the short deadlines and commercial pressures faced by carriers trying to enter markets and meet their customers' requests. Vidéotron submitted that by intervening in existing MAAs, the Commission would send a clear signal that the principles, terms and conditions set out in Decision 2001-23 were a reference not only when negotiating new MAAs, but also when re-negotiating MAAs signed before Decision 2001-23.

26. Bell Canada considered that the Commission should only intervene in existing MAAs where terms and conditions were clearly oppressive. Bell Canada submitted that parties could include clauses in MAAs to protect themselves. Bell Canada submitted, however, that the Commission could intervene in existing MAAs signed prior to Decision 2001-23 because until then parties could not know the terms and conditions that the Commission would consider, in principle, appropriate.

The municipalities' reply

27. The municipalities reiterated that, under section 43 of the Act, carriers could either choose to negotiate an MAA or apply to the Commission. The municipalities submitted that the existence of an MAA was conclusive evidence that both parties had reached consensus on the terms of access to the rights-of-way. The municipalities further submitted that section 43 did not allow a carrier to ask the Commission to intervene solely based on that carrier's decision that it was no longer satisfied with the terms and conditions of an existing MAA.

28. The municipalities submitted that section 32 of the Act, when read as a whole, clearly only applied to intercarrier agreements and arrangements submitted for approval pursuant to section 29 of the Act, not to MAAs concluded pursuant to section 43 of the Act.

29. The FCM and Toronto submitted that a condition established pursuant to section 24 of the Act could only be imposed on a carrier prospectively and that modifying an existing MAA would amount to a final determination having retrospective effect. The FCM further submitted that using section 24 to single out and modify specific arrangements between a carrier and a municipality and take away specific rights of the municipality would amount to unjust discrimination, contrary to section 27 of the Act. Toronto, for its part, submitted that, since section 24 only allowed the Commission to impose conditions applicable to telecommunications services, section 24 could not open the door to a review of other provisions not concerned with the provision of a telecommunications service by a carrier.

30. Calgary submitted that the carriers' broad interpretation of section 24 of the Act, which is a general power, would make subsection 43(4) of the Act unnecessary since section 24 would override the narrow circumstances dealt with by section 43. Calgary argued that this interpretation was contrary to the statutory rules of interpretation.

31. The municipalities submitted that with respect to sections 42, 47, 48, 51 and 55 of the Act, the Commission could only invoke its authority pursuant to these sections in conjunction with the exercise of a power found elsewhere in the Act or another statute. The municipalities stated that no section in the Act or in another statute empowered the Commission to change the provisions of an existing MAA. The municipalities thus submitted that these sections did not provide the Commission with the authority to intervene in existing MAAs.

32. The municipalities submitted that the jurisprudence relied upon by the carriers did not support their contention that the Commission could intervene in existing MAAs. Toronto submitted that in Barrie Public Utilities v. CCTA [2001] 4 F.C. 237 (C.A.), the Federal Court of Appeal overturned Decision 99-13 in its entirety. Toronto and Vancouver submitted that in BC TEL v. Shaw, the question was not one of jurisdiction, but instead involved the resolution of an operational conflict between two equally valid decisions of administrative tribunals. Toronto submitted that the other decisions relied on by the carriers dealt with other administrative tribunals using powers specifically contained in their own enabling statutes. Toronto argued that the carriers had provided no evidence to show how those decisions were relevant to the Commission's authority under the Act. Toronto further submitted that the courts had severely restricted the use of public policy arguments to void otherwise enforceable contracts because of the fundamental importance of binding contracts in commercial relations and the need to preserve the distinction between judicial and legislative functions.

33. The FCM and Edmonton submitted that Decision 2001-23 only set out principles to assist parties when negotiating the terms of an MAA. The Commission thus had to examine each MAA on a case-by-case basis, taking into account the circumstances in each case. Toronto submitted that replacing the terms and conditions of existing MAAs in line with the principles laid out in Decision 2001-23 would be a denial of procedural fairness because it would provide the Commission with the ability to regulate municipalities by pre-determining the terms and conditions of MAAs, instead of examining each case based on its own merits.

34. The FCM submitted that carriers who chose to sign early to deploy their network and obtain a competitive advantage should not be allowed to renege on their obligations. The FCM and Vancouver submitted that by intervening in existing MAAs, the Commission would encourage carriers to engage in bad faith negotiations to gain access to rights-of-way. They argued that such actions would lead to a lack of trust between parties and deter municipalities from negotiating consensual agreements with carriers.

35. The FCM and Edmonton submitted that the carriers' contention that MAAs did not always reflect their intent but were signed because of competitive pressure was without merit. They argued that carriers should allow sufficient time for negotiations to take place. The FCM also submitted that carriers could apply to courts to rescind contracts, in instances where the law provided for it.

36. The FCM and Edmonton submitted that municipalities were not in the business of extracting monopoly rents for rights-of-way but instead fulfilled their duties in accordance with their enabling statutes and the law, taking into account the best interests of their constituents. The FCM and Edmonton further submitted that where municipalities did not act within their authority, oversight of their actions was provided for by provincial departments, agencies and the courts.

37. The FCM submitted that Decision 2001-23 did not allow carriers to be on a more equal footing. In support, the FCM noted that Decision 2001-23 did not require ILECs to negotiate MAAs with municipalities and thus prevented municipalities from creating a level playing field among all carriers.

The carriers' reply

38. TELUS submitted that the municipalities had read subsection 43(4) of the Act narrowly in order to conclude that it did not empower the Commission to intervene in an existing MAA. TELUS argued that municipalities had ignored the Commission's determinations in Decision 99-13 with respect to subsection 43(5) of the Act. TELUS also noted that nothing in subsection 43(4) suggested that it only applied where there was no signed agreement or where consent has not been given. In TELUS's view, the Commission could intervene where the terms of the municipal consent were not acceptable to the carrier, whether the terms became unacceptable to the carrier before or after the MAA was signed.

39. Allstream, FCI Broadband and LondonConnect et al. argued that the Commission's powers under section 32 of the Act were not limited to section 29 agreements and arrangements but extended to all of Part III of the Act. Allstream also submitted that the municipalities' narrow interpretation of the general powers contained in section 32 was not supported by either the language or the context of section 32 and was contrary to the principles of statutory interpretation. In Allstream's view, the ordinary meanings of the words in subsections 32(d) and (e) explicitly provided the Commission with the tools necessary to intervene in existing MAAs entered into under section 43 of the Act. Allstream further submitted that limiting the scope of subsections 32(d) and (e) to section 29 agreements would amount to adding to the terms of the statute or to depriving them of their effect, which, according to Allstream, violated the rules of statutory interpretation.

40. Allstream also added that subsection 32(c) of the Act only allowed the Commission to amend tariffs filed under section 25 of the Act and agreements submitted for approval under section 29 of the Act because the Commission logically had to be able to amend tariffs and agreements over which it had a power of prior approval. Allstream submitted that the Commission had to be able to review and, if necessary, amend tariffs and agreements that it had already amended to ensure that they reflected its original changes. Allstream argued that, by contrast, the powers granted to the Commission under subsection 32(d) of the Act, to suspend or disallow, logically applied to agreements regardless of whether or not they were ever subject to Commission prior approval.

41. Allstream further contended that the municipalities' interpretation of section 32 of the Act was incorrect because if the term "agreement" in subsections 32(d) and (e) always referred back to an agreement submitted for approval under section 29 of the Act, the term would serve no purpose. In Allstream's view, this would violate the very assumption underlying the contextual or logical method of interpretation, which is that the legislature is rational in its use of language.

42. TELUS submitted that although section 32 of the Act does not expressly reference agreements between carriers and municipalities, subsections 32(d), (f) or (g) did not expressly exclude these types of agreements or arrangements. TELUS submitted that the municipalities' narrow interpretation of section 32 transformed these general powers into very specific powers that would not be used "for the purposes of [Part III of the Act]" but rather, "for the purposes of sections 25 and 29 approval".

43. TELUS maintained that the consistent application of the principles in Decision 2001-23 to new and existing agreements would bring more consistency and certainty to the industry. Conversely, TELUS submitted that the failure to amend existing MAAs at odds with Decision 2001-23 would significantly undermine what the Commission had hoped to accomplish in Decision 2001-23.

44. TELUS submitted that the municipalities' claim that carriers freely chose to sign access agreements rather than apply to the Commission, did not take into account the history of Part VII applications for access to municipal rights-of-way. TELUS argued that no one aware of this history could credibly state that a resolution of access issues through a Part VII application could be reached in days or weeks, which, according to TELUS, is the timeframe within which carriers' business plans and commitments must be acted upon. TELUS maintained that, until carriers could obtain timely relief under subsection 43(4) of the Act, they often would not have viable choices available to them when confronted with unacceptable terms of access to municipal rights-of-way.

45. Allstream argued that the most effective way to discipline parties in their negotiations would be for the Commission to indicate its willingness to intervene whenever an MAA brought before it was inconsistent with its policy determinations in Decision 2001-23. In Allstream's view, no other threshold was required; the Commission's willingness to intervene in existing MAAs, under these circumstances, would remove the municipalities' incentive to force carriers to accept access terms inconsistent with the provisions of the Act and the Decision 2001-23 principles.

46. The CCTA submitted that, in the interest of commercial certainty, carriers should not be able to avoid compliance with contracts voluntarily entered into merely because changing business conditions have made the terms inconvenient. The CCTA maintained however, that the terms and conditions in existing MAAs could be more than an "inconvenience" and that Commission intervention was not being sought on the grounds of "changing business conditions". The CCTA argued that many clauses in existing MAAs conflicted with the carriers' right of access. The CCTA further submitted that terms and conditions not in accordance with the legislative and regulatory scheme set out in the Act and in Decision 2001-23 justified Commission intervention.

47. In its reply, FCI Broadband submitted that interfering with signed agreements should not be done lightly. However, FCI Broadband argued that the objectives set out in section 7 of the Act required that the terms and conditions imposed by municipalities on all local exchange carriers (LECs) be fair and reasonably equivalent. According to FCI Broadband, the Commission should consider intervening where there was a clear indication that municipalities had exercised inappropriate monopoly power or where there was a significant imbalance among competing LECs. In FCI Broadband's view, it was in the public interest for the Commission to step in and establish a complete end-to-end process for dealing with disputes regarding access agreements.

Commission analysis and determination

Competitive framework

48. In Local competition, Telecom Decision CRTC 97-8, 1 May 1997 (Decision 97-8) and in Regulatory framework for the second price cap period, Telecom Decision CRTC 2002-34, 30 May 2002, the Commission determined that the full benefits of local competition in telecommunications services, including high quality, affordable service, innovation and service differentiation, would best be realized through facilities-based competition, and that facilities-based competition would, in the long run, be the most effective and sustainable form of competition to achieve the policy objectives set out in section 7 of the Act.

49. The Commission considers that carriers must be able to access municipal rights-of-way on reasonable terms and conditions. In the Commission's view, reasonable access to municipal rights-of-way is especially important for CLECs since, unlike ILECs, CLECs did not have the opportunity to build their networks in a monopoly environment and under the more favourable conditions that were available to ILECs at that time. The Commission has previously noted, in Local competition: Sunset clause for near-essential facilities, Order CRTC 2001-184, 1 March 2001 and, more recently, in Report to the Governor in Council: Status of Competition in Canadian Telecommunications Markets, Deployment/Accessibility of Advanced Telecommunications Infrastructure and Services, November 2003, that the resolution of access issues related to rights-of-way is key to the development of facilities-based competition. The Commission is concerned that carriers may have signed MAAs which are detrimental to its policy of facilities-based competition and more generally detrimental to the achievement of the policy objectives outlined in section 7 of the Act. The Commission is also concerned that these MAAs may have a direct negative effect on carriers' ability to continue operating their facilities. The Commission is further concerned that the achievement of those policy objectives may be frustrated for an extended period of time if it is unable to review such existing MAAs.

Constitutional authority

50. In the Commission's view, whether to construct and where to construct transmission lines (a vital part of a telecommunications undertaking) are matters of exclusive federal concern, as are the design of the transmission lines, the material to be incorporated and other similar specifications. All terms and conditions that will be permanently reflected in the structure of the transmission lines, or have a direct effect on the operational qualities of the transmission lines, are within exclusive federal jurisdiction. The Commission considers that any effects on property and civil rights in a province are incidental. In the Commission's view, the use of property, such as a municipal highway, for the purposes of a transmission line cannot be divorced from the exclusive federal constitutional jurisdiction over telecommunications undertakings.

Ability to intervene in existing MAAs

51. The Commission considers, as argued by the municipalities, that the provisions of the Act, including section 43, do not contemplate that the Commission could issue a broad direction requiring parties to bring all existing MAAs into conformity with a set of guidelines like those articulated in Decision 2001-23. It is the Commission's view that section 43 of the Act contemplates that any consideration of access to a municipal right-of-way must be done on a case-by-case basis, bearing in mind the particular circumstances of each case.

52. However, the Commission does not accept the contention put forward by the municipalities that a signed MAA is definitive proof that a Canadian carrier has obtained, on terms acceptable to it, the consent of the municipality to construct a transmission line. The Commission notes that the law has consistently recognized circumstances under which a written agreement may not validly represent one or both parties' acceptance of its terms. These circumstances include, but are not limited to, cases of mistake, duress, and inequality of bargaining power.

53. The Commission is, therefore, prepared to consider applications from Canadian carriers seeking to establish that municipal consent was not obtained on terms acceptable to the carrier. The Commission considers that the onus will be on the Canadian carrier applying to the Commission to establish that the signed MAA does not represent proof that the Canadian carrier has obtained, on terms acceptable to it, the consent of the municipality to construct a transmission line.

54. The Commission is cognizant of the municipalities' concerns about the potential for bad faith bargaining by carriers. The Commission will, therefore, consider all of the circumstances that led to the signing of the MAA, including the parties' intent, and their relative bargaining power at the time.

55. The Commission notes that while section 43 of the Act makes provision for access to municipal rights-of-way by both Canadian carriers and broadcast distribution undertakings, parties did not, in this proceeding, specifically raise issues with regard to broadcast distribution undertakings' access to rights-of-way. Should such issues arise, the Commission will be prepared to examine them.

Pending Part VII applications regarding existing MAAs

56. As set out above, the Commission suspended consideration of both Part VII applications filed by Allstream against Toronto and Calgary relating to existing MAAs, until such time as it had reached a decision in the Public Notice 2001-99 proceeding. As that decision has now been rendered, the Commission will now consider those pending applications. Allstream may file comments within 30 days of the date of this decision on how this decision should be applied in the context of its dispute with Toronto. Toronto may file its answer within 30 days of the filing of Allstream's comments. Allstream may file reply comments no later than 10 days after Toronto has filed its answer. In the case of Allstream's application against Calgary, Allstream may within 30 days of the date of this decision, amend its application to provide submissions on how this decision should be applied in the context of that application. Calgary may provide its answer to Allstream's application no later than 30 days after the filing of Allstream's amended application. Allstream may file reply comments no later than 10 days after Calgary has filed its answer. Each party is reminded to provide copies of any submissions to the other party within the deadlines specified. Parties are also reminded that where a date is specified for filing and serving submissions, they must actually be received by that date and not merely sent.

Parties' interventions in Allstream's Part VII application against Toronto

57. The Commission notes that it received interventions from the CCTA, TELUS, Bell Canada, LondonConnect and Vidéotron, following Toronto's response of 27 June 2001 to Allstream's Part VII application of 28 May 2001, against Toronto. The Commission notes that Toronto objected to the interventions on the basis that the dispute between itself and Allstream was a bilateral dispute.

58. The Commission finds that the interveners do not have a right to intervene in Allstream's Part VII application against Toronto. In the Commission's view, the interventions will not add anything of substance to the proceeding. The Commission also finds that not allowing the interveners to participate is consistent with the requirements of the CRTC Telecommunications Rules of Procedure and the common law duty of fairness. The Commission will therefore not consider those interventions in reaching its determination on this application.

Other issues

Stay of the proceeding

59. The Commission notes that some municipalities submitted that it was inappropriate for the Commission to examine the circumstances, if any, under which it should intervene in existing MAAs while Decision 2001-23 was still under appeal.

60. In light of the fact that the Supreme Court of Canada, on 4 September 2003, denied the municipalities' application for leave to appeal the Federal Court of Appeal's judgment upholding Decision 2001-23, the Commission considers that this request is moot.

Request for an oral hearing

61. Halifax and Toronto requested that the Commission hold an oral hearing. Halifax argued that the issues before the Commission were of national importance and added that oral arguments would allow parties not familiar with the Commission to observe the Commission and its approach.

62. TELUS and LondonConnect et al. submitted that an oral hearing was not required. TELUS submitted that oral arguments would only delay the process and would not give parties the opportunity to test the evidence. LondonConnect et al. submitted that the municipalities had no legal right to an oral hearing and that the process adopted by the Commission was consistent with its procedures. LondonConnect et al. also noted that Halifax and Toronto had not sought to present additional evidence or cross-examine witnesses, which are usually the grounds for requiring an oral hearing.

63. The Commission notes that all parties were provided with an extensive opportunity to file submissions and to reply to any arguments made by other parties to the proceeding. The Commission further notes that there are no facts in dispute and no issues of credibility at issue. In light of the circumstances of this case, the Commission has concluded that an oral hearing is unnecessary. The Commission, therefore, denies the request by Halifax and Toronto for an oral hearing.

Secretary General

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

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