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Telecom Decision CRTC 2003-87
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Ottawa, 23 December 2003
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Application by Cybersurf seeking resale of Shaw higher-speed retail Internet service
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Reference: 8622-C122-200307456
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The Commission imposes as a condition on the provision of higher-speed retail Internet service the requirement that Shaw Cablesystems G.P. provide a resale arrangement for higher-speed retail Internet service under the terms set out in this decision.
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Introduction
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1.
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The Commission received an application by Cybersurf Corp. and wholly-owned subsidiaries Cybersurf Technologies Corp. and 3web Corp. (collectively Cybersurf),dated 16 June 2003, filed pursuant to Part VII of the CRTC Telecommunications Rules of Procedure (the Rules). In the application, Cybersurf sought a Commission order directing Shaw Cablesystems G.P. (Shaw) to make available for resale its higher-speed retail Internet service in Winnipeg, Saskatoon, Calgary, Edmonton, Vancouver and Victoria.
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2.
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In its application, Cybersurf had requested an expedited process for comment and reply. By letter dated 20 June 2003, Shaw objected to Cybersurf's request to abridge the filing deadlines. By Commission staff letter dated 27 June 2003, Shaw was instructed to provide its comments on Cybersurf's application by 7 July 2003. Cybersurf was instructed to reply to any comments made by Shaw by 14 July 2003. Both parties filed comments by the required dates. The Commission received further comments from Shaw on 18 July 2003 and 5 August 2003 and from Cybersurf on 24 July 2003 and 7 August 2003. Commission staff requested further information from Shaw on 25 August 2003. Shaw provided a response on 27 August 2003. Commission staff posed further questions to Shaw on 24 September 2003. Shaw provided a response on 29 September 2003. Additional comments were received from Cybersurf on 2 October 2003 and reply comments were received from Shaw on 6 October 2003.
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Background
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3.
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In Regulation under the Telecommunications Act of certain telecommunications services offered by "broadcast carriers", Telecom Decision CRTC 98-9, 9 July 1998, Regulation under the Telecommunications Act of cable carriers' access services, Telecom Decision CRTC 99-8, 6 July 1999 and Terms and rates approved for large cable carriers' higher speed access service, Order CRTC 2000-789, 21 August 2000, the Commission determined the principles of competitive access for Internet service providers (ISPs) to serve customers using third-party internet access (TPIA) on cable networks and approved transport rates for Rogers Communications Inc., Vidéotron ltée, Shaw Communications Inc. and Cogeco Cable Canada Inc.
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4.
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In Application concerning access by Internet service providers to incumbent cable carriers' telecommunications facilities, Telecom Decision CRTC 99-11, 14 September 1999 (Decision 99-11), the Commission determined that the incumbent cable carriers were required to make their higher-speed retail Internet service available on a resale basis at a discount of 25% from the lowest retail rate charged by that carrier in the applicable serving area during any one-month period. The resale requirement was to remain in place until the incumbent cable carriers provided TPIA. In a later decision, by letter dated 3 December 1999, the Commission clarified its determination made in Decision 99-11, indicating that incumbent cable carriers were not required to resell cable modems to third-party ISPs. In this regard, the Commission noted that ISPs could purchase modems from manufacturers and found that modems were not a barrier to entry into this market.
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Application
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5.
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Cybersurf requested that the Commission direct Shaw to make available for resale its higher-speed retail Internet service in Winnipeg, Saskatoon, Calgary, Edmonton, Vancouver and Victoria to Cybersurf subject to the following terms:
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- the service would have characteristics identical to Shaw's regular higher-speed retail Internet service (i.e., average throughput 1.7 million bytes per second downstream and 400 kilobytes per second upstream);
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- Cybersurf would be able to resell the service under the Cybersurf brand identification;
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- Cybersurf would be able to bill Cybersurf customers directly; and
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- Shaw would provide the service at a rate of no more than $23.69 per end-user customer per month until Shaw is able to provide TPIA that would allow Cybersurf to provide its own retail Internet service.
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6.
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Cybersurf stated that it had approached Shaw in August 2002 and requested TPIA in order to offer higher-speed retail Internet service to its customers. Cybersurf stated that arrangements for Shaw to provide TPIA to Cybersurf progressed until Shaw had informed Cybersurf, on 31 March 2003, that, contrary to previous assurances, reliable implementation of TPIA was dependent on Shaw resolving a network issue relating to a third-party software release. Cybersurf indicated that Shaw had provided no commitment as to a date when TPIA would be available.
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7.
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Cybersurf stated that Shaw had made representations that it was willing or able to provide TPIA service to Cybersurf, including the execution of a TPIA service agreement and the provision of design reports for TPIA activation. Cybersurf also stated that it had received assurances from Shaw, up to February 2003, that TPIA would be available, and that Shaw's representations were consistent with other public statements it had made. 1 Cybersurf also noted Shaw's statement, made to the House of Commons Standing Committee on Heritage in November 2002, that it provided "totally open access" for TPIA.
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8.
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Cybersurf submitted that it had relied upon Shaw's representations and was suffering irreparable harm as a result of Shaw's denial of TPIA for an indeterminate period. Cybersurf stated that it had made significant commitments to suppliers in preparation to start its service and that its inability to deliver on its commitment of providing higher-speed service to its customers would tarnish Cybersurf's reputation in the market and erode its revenues.
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9.
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Cybersurf alleged that as a result of delaying access to TPIA, Shaw would continue to use its telecommunications facilities to provide its own retail higher-speed retail Internet services under conditions more favourable to itself than to Cybersurf. Cybersurf argued that this conduct contravened subsection 27(2) of the Telecommunications Act (the Act), which prohibits a Canadian carrier from providing a telecommunications service in a manner that results in unjust discrimination or that subjects any person to an undue or unreasonable disadvantage. Cybersurf argued Shaw's conduct was further exacerbated in the circumstances by the timing of the notice by Shaw of the indeterminate lack of availability of Shaw's TPIA service.
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10.
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Cybersurf stated that Shaw had proposed resale of its higher-speed retail service as an alternative to TPIA, at a rate based on a 25% discount from Shaw's retail price before any retail discounts. Cybersurf argued that Shaw's proposed resale rate would not allow Cybersurf to compete. Cybersurf argued that in view of Shaw's actions in delaying its TPIA service for an indeterminate period, Shaw should be required to provide resale at a rate that is equivalent to the approximate cost to Cybersurf of providing higher-speed retail Internet service to its customers through TPIA. Cybersurf proposed that Shaw should provide resale at a rate of no more than $23.69 per end-user customer per month, until Shaw provided TPIA in accordance with its approved tariffs and TPIA service agreement. Cybersurf submitted that the rate of $23.69 would cover the incremental cost elements that Cybersurf would incur for TPIA.
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11.
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Cybersurf further stated that Shaw had also proposed alternate interim measures to both TPIA and resale to serve Cybersurf's customers over Shaw's network. Cybersurf submitted that these measures would not provide for connection to customers in a manner equivalent to Shaw's higher-speed retail Internet service and would result in an inferior service offering. Cybersurf argued that the denial of access to TPIA by Shaw justified a remedy that would put Cybersurf in the same position it would have been in if the additional and unexpected delay in the availability of Shaw's TPIA service had not occurred.
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Shaw's comments
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12.
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Shaw stated that it had no objection to providing its higher-speed retail Internet service for resale under the terms requested by Cybersurf and consistent with Decision 99-11, except for the proposed resale rate of $23.69. Shaw clarified that it could not commit to specific levels of throughput, but would provide the same service that its customers receive. Shaw further stated it could provide billing information to enable Cybersurf to bill its customers directly.
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13.
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Shaw noted that, pursuant to Decision 99-11, it was required to offer its retail Internet service for resale at a 25% discount off its lowest monthly rate until TPIA was provided pursuant to an approved tariff. Shaw indicated that if the 25% resale discount were to be applied to its lowest retail price of $37.95 for regular higher-speed service, and offered to customers who purchase their modem separately, the resale rate would be $28.46 per customer per month. Shaw contended that this resale rate, if it were available, provided Cybersurf with a viable option relative to the costs that Cybersurf would incur to serve its customers using TPIA.
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14.
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Shaw submitted that its difficulties associated with implementing TPIA on its cable network, which uses a proprietary technology, were unexpected and were driven by technical and economic factors that were beyond Shaw's control. Shaw indicated that it was continuing to work to provide TPIA using its current proprietary network. Shaw confirmed that it remains committed to implementing TPIA system-wide in the long term when it upgrades its network to a data-over-cable service interface specification (DOCSIS) 2.0 standard but stated that it did not provide Cybersurf with a specific date as to when TPIA would be available.
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15.
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Shaw submitted that it had acted in good faith at all times with Cybersurf to implement TPIA service as soon as possible, as evidenced by the execution of a TPIA service agreement, its provision of design reports for TPIA activation and the fact that Shaw filed an interim special facilities tariff with the Commission for TPIA interconnection. Shaw stated that as soon as it had become aware of the unexpected difficulties associated with implementing its TPIA service, it had requested a meeting with Cybersurf and explained the problems, indicated the likely timeline for implementing this service, and proposed three possible interim solutions that would allow Cybersurf to roll-out higher-speed Internet services immediately using Shaw's network.
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16.
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Shaw submitted that Cybersurf had not supported its claim that it would suffer irreparable harm due to any delay in the provisioning of TPIA service. Shaw stated that it had never promised Cybersurf a specific roll-out date for TPIA due to testing and provisioning uncertainties associated with establishing an entirely new service. Moreover, Shaw submitted that since Cybersurf could offer a resale service pursuant to the terms of Decision 99-11, Cybersurf could mitigate any harm that might arise from a delay in provisioning TPIA service. Alternatively, Shaw submitted that Cybersurf could use other higher-speed platforms, such as digital subscriber line (DSL), to serve its customers.
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17.
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Shaw argued that the Commission had already addressed the undue preference issues raised by Cybersurf. Shaw submitted that the Commission, in Decision 99-11, had determined that any undue preference resulting from the provision of retail Internet services by cable companies prior to implementation of TPIA service had been addressed by the requirement to offer retail Internet services for resale at a 25% discount.
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18.
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Shaw further submitted that Cybersurf had not filed cost evidence to support the assertion that Cybersurf's proposed resale rate would put Cybersurf in the same financial position were TPIA service available to Cybersurf. Shaw submitted that Cybersurf's proposed rate of $23.69 understated Cybersurf's transport costs using TPIA service, ignored other costs and failed to capture the additional functionality and costs associated with resale, costs which Cybersurf would avoid under a resale model. Based on internal costing information filed in confidence, Shaw estimated that the total costs to Cybersurf of providing Internet service in a TPIA environment would be at least $32.55. Shaw submitted that the rate proposed by Cybersurf was neither just nor reasonable and was not consistent with the prohibition in subsection 27(2) of the Act on the conferral of an undue preference.
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Cybersurf's reply
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19.
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Cybersurf reiterated its claim that the resale price of $23.69 was fair arguing that rate would put Cybersurf in the same competitive position in which it would have been had Shaw's TPIA service been available on schedule. Cybersurf further stated that its request for relief would remedy Shaw's breach of subsection 27(2) of the Act. Cybersurf agreed with Shaw's clarifications that Shaw's higher-speed retail Internet service did not provide a specific throughput level and that the billing information Shaw could provide would be in bulk form but would enable Cybersurf to bill its customers directly. Cybersurf restated its requested relief taking into account these revisions.
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20.
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Cybersurf took issue with Shaw's assertion that it had always acted in good faith with respect to providing Cybersurf TPIA service. Cybersurf suggested that the unavailability of DOCSIS in the cable carrier's networks did not excuse them from meeting the demand for TPIA. Cybersurf reiterated its claim that at no time prior to 31 March 2003 had Shaw advised Cybersurf of the possibility of a significant delay in the roll-out of TPIA and it had suffered irreparable harm as a result of Shaw's conduct.
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21.
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In response to Shaw's claim that Cybersurf had not filed evidence to support its proposed rate, Cybersurf stated that the costing information used to develop the $23.69 rate was filed with the Commission on 12 November 2002 in the proceeding dealing with an application by the Independent Members of the Canadian Association of Internet Providers pursuant to Part VII of the Rules. Cybersurf submitted that its proposed rate covered the incremental costs that Cybersurf would incur in the absence of TPIA service, namely the $21.25 per end-user monthly recurring fee payable to Shaw under its tariff, $2.27 per end-user per month for a combined Internet access and transit fee and a monthly link charge of $0.17 per user. Cybersurf stated that the Internet access, Internet transit and link services rates reflected current contractual arrangements that Cybersurf had with other carriers to obtain these services in the absence of TPIA. Cybersurf contended that no other items were included in the proposed rate as Shaw would not be providing any other services as part of its TPIA package.
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22.
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Cybersurf asserted that the costing information provided by Shaw was irrelevant as Cybersurf had provided its own cost estimates. Cybersurf submitted that the total rate of $32.55, based on Shaw's costing information, did not make sense given that Shaw provided its own higher-speed retail Internet service at a lower rate. Cybersurf asserted that Shaw's suggestion that Cybersurf would benefit from lower costs should it opt for a resale option instead of subscribing to TPIA, was also inconsistent with the view of independent ISPs in the marketplace who favoured TPIA over resale.
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23.
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Cybersurf argued that it could not effectively mitigate the harm from Shaw's delay in providing TPIA service. Cybersurf further argued that it was unrealistic for it to provide service using a DSL platform as this approach would require Cybersurf to start negotiating access to other incumbent carrier networks resulting in additional costs and delays. Cybersurf contended that resale under the terms of Decision 99-11 was not an adequate remedy arguing that Shaw would have no motivation to comply with the requirement to provide TPIA and Shaw would also be absolved from having to take responsibility for the harm caused to Cybersurf resulting from the delay. Cybersurf further contended that the 25% discount mandated by Decision 99-11 did not address the fact that Shaw was currently offering its higher-speed retail Internet service to new subscribers upon terms which include one free month of service, free installation, six months of service at the monthly rate of $29.95, cable modems at the price of $59.95, plus discounts on cable and digital cable subscriptions.
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Shaw's response to Commission staff interrogatories
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24.
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In its 27 August 2003 response, Shaw confirmed that it had provided discounts to its retail customers. Shaw indicated that its promotional discounts for higher-speed Internet service included an offer allowing customers to purchase modems for $59.95, free installation and the first month of service free, and a rate of $29.95 for the next six months. After this initial seven-month period, the rate would be $37.95 for those customers who purchase a modem.
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25.
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Commission staff interrogatories asked, among other things, whether the Commission should require Shaw to resell proprietary modems at the same price that it supplies modems to its own customers until it offers TPIA using competitively available modems. In its responses, dated 29 September 2003 and 6 October 2003, with respect to the supply of proprietary modems, Shaw stated that these modems were no longer manufactured and that the primary source for these modems was through second source suppliers that obtain modems from North American cable operators migrating from a proprietary to a DOCSIS technology network. Shaw stated that proprietary modems entering the second source market tended to be priced well below the original purchase price.
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26.
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With respect to the economic life of these modems, Shaw stated that DOCSIS 2.0 would be deployed in Vancouver in the fall of 2003, in Calgary in the spring of 2004, and that Shaw anticipated that DOCSIS would be deployed in the remaining urban centres during the next three to five years. Shaw stated that DOCSIS 2.0 was being introduced in parallel with existing proprietary technology and it expected to maintain this configuration for some period of time, perhaps as long as five years in some locations. Shaw indicated that through a series of initiatives it would gradually reduce the number of customers using proprietary modems. Shaw also stated that once its DOCSIS network was available in Vancouver and Calgary, ISPs would have access to TPIA in these areas using DOCSIS modems.
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27.
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Shaw stated that it was optimistic that the supply of proprietary modems would be sufficient to support demand and if this was correct, proprietary modems should not be a barrier to entry for other ISPs.
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28.
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Shaw also stated that no party to this proceeding had made an argument that there was insufficient numbers of proprietary modems available for market entry. Shaw indicated that, to its knowledge, no ISP had provided the CRTC with market projections that would even begin to permit the CRTC to determine whether there was a credible shortage of proprietary modems. Shaw argued that without first estimating the demand for and supply of these modems, it was premature to make a judgment as to whether Shaw should sell cable modems to ISPs. Shaw further stated that it had priced its cable modems to remain competitive with TELUS Communications Inc.'s service and, if Shaw were required to sell proprietary modems from its inventory to ISPs using resale or TPIA services, Shaw would be subsidizing the competitors' entry into the Internet services market. Shaw submitted that this approach would also distort the input prices to ISPs which would be reflected in the ISPs' monthly retail rate. Shaw stated that if ISPs were guaranteed a supply and floor price for proprietary modems from Shaw, ISPs would have no incentive to obtain second source modems.
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Supplemental comments
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29.
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Cybersurf requested that the Commission order Shaw to make its proprietary modems available to Cybersurf at the same price and on the same terms as it supplies them to Shaw's own customers with all applicable discounts and promotions taken into account. Cybersurf stated that, in order to ensure competitive neutrality, it was prepared to undertake to make any modems purchased from Shaw available to Cybersurf's customers at the same price it paid to Shaw for the modems.
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30.
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Cybersurf asserted that the second source supply of proprietary modems was intermittent and unpredictable. Cybersurf stated that, given that Shaw's roll-out of DOCSIS will not be complete for another three to five years, there will be many geographic regions within Shaw's operating territory where competitors will only be able to provide higher-speed Internet service using Shaw's network during that transition period if a corresponding supply of proprietary modems was available. Given that these proprietary modems were no longer being manufactured, Cybersurf asserted that the number of these modems available to third-party ISPs would continue to shrink significantly. Cybersurf submitted that Shaw's optimism on this issue was not well founded.
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31.
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Cybersurf argued that the onus was on Shaw to demonstrate that by not making its proprietary modems available to competitors on the same terms that it provided them to its retail customers, Shaw was not providing its retail service on a basis that was more favourable than that on which an ISP may use the carrier's access service.
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32.
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Regarding Shaw's argument that an obligation to resell proprietary modems would, in effect, require Shaw to subsidize the entry of competitors into the market, Cybersurf argued that if ISPs could obtain proprietary modems at lower prices in the secondary market, ISPs would choose this option rather than pay higher rates charged by Shaw. However, if Shaw's rates for modems are heavily subsidized and are lower than the secondary market price, Cybersurf argued that it was Shaw that was introducing a pricing distortion into the consumer market. Cybersurf further argued that if Shaw refused to make proprietary modems available to ISPs on the same terms that it makes them available to its own customers, ISPs would be unable to compete, and the lack of competition would be more injurious to consumers than any pricing distortion caused by Shaw.
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Commission analysis and determination
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33.
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The Commission notes that Cybersurf had requested a particular resale arrangement given the delay it had experienced in obtaining TPIA from Shaw.
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34.
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The Commission also notes that Shaw has agreed to resell its higher-speed retail Internet service to Cybersurf in accordance with the first three conditions proposed by Cybersurf, as clarified. The Commission further notes that Cybersurf agreed with Shaw's clarifications regarding its first three conditions. Cybersurf, however, has reiterated its claim that a resale price of $23.69 was fair and would put Cybersurf on the same competitive position as it would have been had TPIA service been available.
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35.
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In Decision 99-11, the Commission concluded that it was not in the public interest for incumbent cable carriers to offer higher-speed retail Internet service without providing access to the underlying facilities through TPIA or resale as a proxy for access. Pursuant to section 24 of the Act, the Commission imposed, as a condition of the provision of higher-speed retail Internet service by incumbent cable carriers, the requirement that such a carrier make available for resale its higher-speed retail Internet service at a 25% discount from the lowest retail rate charged by that carrier to a cable customer in the applicable serving area during any one-month period. The Commission determined that this condition would continue to apply until access is provided pursuant to an approved tariff.
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36.
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The Commission considers that under those circumstances where an incumbent cable carrier is providing higher-speed retail Internet service during the period prior to it being possible to provide TPIA, undue preference is averted where the cable carrier makes its retail service available for resale under the terms and conditions determined by the Commission in Decision 99-11.
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37.
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As noted above, Cybersurf has requested a resale rate of $23.69 per customer per month. In Decision 99-11, the Commission determined that a discount of 25% from the lowest retail rate in a month would provide an appropriate resale rate.
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38.
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The Commission has carefully considered all submissions received. Based on the evidence, the Commission is not satisfied that Cybersurf has demonstrated that its proposed approach to determine a resale rate, based on the incremental cost elements that Cybersurf would have to incur in the absence of TPIA, is more appropriate than that determined by the Commission in Decision 99-11. In particular, the Commission is of the view that Cybersurf has not demonstrated that the cost elements identified are the appropriate ones, or that Cybersurf has adequately substantiated the cost estimates. Accordingly, the Commission considers it appropriate to determine a resale rate based on the rating determination set out in Decision 99-11.
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39.
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The Commission notes that the 25% resale discount established in Decision 99-11 was to apply to the lowest retail Internet service rate charged by the cable carrier to a cable customer in the applicable serving area during any one-month period. The resale discount applied to the rate charged to the cable customer for the service in question after considering any retail discounts or credits. In this regard, the Commission notes that Shaw has not made resale available to Cybersurf based on its lowest retail rate but rather has proposed a resale rate based on Shaw's regular retail rate not taking discounts into consideration.
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40.
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The Commission notes that the rate schedule that Shaw provided in this proceeding indicates that the rate for a new customer who purchases a modem is $0.00 in the first month, $29.95 for the next six months, and $37.95 per month thereafter. The lowest rate charged to a customer in a month under Shaw's rate schedule is $0.00. The Commission does not consider that it would be reasonable to calculate the resale rate based on $0.00. The Commission is therefore of the view that the lowest retail rate, other than $0.00, charged by a cable carrier to a cable customer in a month for the retail Internet service in question in the applicable serving area, should be the "lowest rate" for the purpose of determining the resale rate. According to the rate schedule filed by Shaw in this proceeding, the lowest rate other than $0.00 charged by Shaw to a customer in a month for the higher-speed retail Internet service in question is $29.95. In this case, the rate for all ISP resale customers, after the 25% discount, would be $22.46 per customer per month.
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41.
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The Commission notes that in its 3 December 1999 decision it determined that cable companies were not required to resell cable modems. The Commission noted in that decision that modems were available from manufacturers and it found that modems were not a barrier to entry. In the current case for Shaw's proprietary modems, based on the record of this proceeding, the Commission notes that no manufacturer continues to produce the modems. The Commission also notes that the economic life of the modems is dependent on Shaw's continued support of its proprietary network and considers that the second source supply of modems is intermittent and uncertain. The Commission considers that the uncertainty of supply and potentially limited useful life of the proprietary modems constitutes a barrier to entry for competitive ISPs in Shaw's territory. Accordingly, the Commission considers that in order to remove the barrier to resale entry associated with proprietary modems, Shaw should make proprietary modems available to Cybersurf.
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42.
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The Commission notes that, in response to Commission staff questions to Shaw, no cost evidence for proprietary modems was provided, as would generally be available in a competitive market. In view of the lack of a competitive supply of proprietary modems, the Commission considers that a resale rate for such modems based on the retail price charged by Shaw to its customers, rather than the acquisition cost, is appropriate. Since the provision of modems by Shaw would be a proxy for Cybersurf acquiring the modems in a competitive market, the Commission considers that no 25% resale discount should apply to the provision of modems for resale service.
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43.
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Accordingly, pursuant to section 24 of the Act, the Commission imposes as a condition on the provision by Shaw of higher-speed retail Internet service, that it make that service available for resale to provide retail Internet service, until Shaw provides TPIA under approved tariffs, on the following terms:
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- Shaw shall provide resale service with characteristics identical to Shaw's regular service in all respects, including, but not limited to throughput;
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- Shaw shall provide the service such that ISPs can resell the service as a branded ISP service;
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- Shaw shall provide ISPs with the ability to bill ISP end-user customers directly, and for that purpose shall bulk bill the ISP for all charges, and the bulk bill shall contain sufficient information to differentiate charges between the ISP end-users and permit the ISP to bill its end-users; and
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- Shaw shall make its higher-speed retail Internet service available for resale to provide Internet service at a 25% discount from the lowest retail rate, other than $0.00, charged to a cable customer for the retail Internet service in question in the applicable serving area during any one-month period including any discounts or credits.
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44.
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Pursuant to section 24 of the Act, the Commission imposes as a condition on the provision by Shaw of higher-speed retail Internet service that Shaw shall resell the proprietary modems used for its higher-speed retail Internet service to ISPs, as required to serve ISP resale customers, at the lowest retail rate Shaw charges its customers until Shaw provides TPIA under approved tariffs using non-proprietary modems that are available from manufacturers.
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45.
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The Commission considers that where TPIA can be technically provided in accordance with the Commission's decisions and approved tariffs, cable companies must ensure that TPIA is made available forthwith.
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Secretary General
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This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca
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__________________________
Date Modified: 2003-12-23