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Telecom Order CRTC 2003-505
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Ottawa, 11 December 2003
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TELUS Communications Inc.
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Reference: Tariff Notice 54
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General Terms of Service - Telephone directories
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In this order, the Commission denies an application by TELUS Communications Inc. to revise its General Terms of Service in order to extend the limitations of liability for directory errors and omissions and the authority to consent to directory reproduction to its directory publisher.
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The application
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1.
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The Commission received an application by TELUS Communications Inc. (TCI), dated 21 May 2002, to revise its General Terms of Service in order to extend the limitations of liability for telephone directory errors and omissions and the authority to consent to directory reproduction to its directory publisher, Dominion Information Services Inc. (DIS).
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2.
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TCI stated that prior to 31 July 2001, TELUS Advertising Services (TAS) was responsible for compiling, publishing and distributing TCI-authorized white and yellow page directories in Alberta and British Columbia.
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3.
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TCI stated that TAS was sold to Verizon Information Services Inc. (Verizon) on 31 July 2001. TCI indicated that Verizon combined the former Dominion Information Services Inc. (the former DIS), based in British Columbia, and Québec-based Les Annuaires du Québec with TAS to form a new company, DIS, that provided print, wireless and online directory services.
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4.
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TCI stated that, on 31 July 2001, TCI and TELUS Communications (Québec) Inc. (TELUS Québec) entered into a publishing agreement with DIS and Verizon (the Publishing Agreement). TCI indicated that, under the Publishing Agreement, DIS was required to print and distribute white and yellow page directories to satisfy TCI's and TELUS Québec's regulatory requirements.
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5.
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The Commission received comments from the Telecommunications Workers Union (TWU) dated 18 June 2002. The Commission also received reply comments from TCI dated 27 June 2002 and TCI's responses to Commission staff questions dated 7 March 2003.
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Position of parties
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Jurisdiction to extend liability protection
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TWU's comments
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6.
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TWU submitted that DIS is not a Canadian carrier and, therefore, the Commission has no jurisdiction under section 31 of the Telecommunications Act (the Act) to extend the existing limitations of TCI's liability to DIS.
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7.
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TWU further submitted that the nature and extent of liability of any party, other than a Canadian carrier or other federal undertaking, that purchases or otherwise obtains and publishes directory information from a Canadian carrier is a matter of exclusive provincial jurisdiction.
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TCI's reply
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8.
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TCI agreed that the Commission does not derive its jurisdiction to approve the application from section 31 of the Act, as section 31 merely constrains a Canadian carrier's common law entitlement to incorporate into its contracts whatever terms and conditions the carrier can negotiate with its customers.
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9.
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TCI submitted that, instead, the Commission derives its jurisdiction to approve the application from section 24 of the Act. TCI stated that the limitations of liability contained in its General Terms of Service constitute additional terms and conditions for the provision of tariffed services that are not otherwise contained in the specific tariffs for those services. TCI submitted that section 24 of the Act clearly empowers the Commission to impose any condition on the offering or provision of such tariffed services that the Commission deems appropriate, including the proposed revised limitations of liability.
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Commission analysis and determination
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10.
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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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11.
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The Commission is of the view that, as DIS is not a Canadian carrier, the Commission does not have the jurisdiction to approve the extension of liability protection under section 31 of the Act.
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12.
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The Commission notes that the proposed changes amend conditions that are associated with the provision of white and yellow page directories. The Commission further notes that TCI is required to provide appropriate white and yellow page directories, at no charge, as part of local exchange service, pursuant to item 116.1 of its General Terms of Service.
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13.
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In the Commission's view, all of the terms and conditions associated with the provision of directories are section 24 conditions associated with the provision of local exchange service. Accordingly, the Commission finds that it has the jurisdiction to approve changes to these conditions under section 24 of the Act.
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Appropriateness of extending protections associated with the provision of directories to a third party
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TWU's comments
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14.
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TWU submitted that the proposed changes to the limitations of liability are not necessary because the former DIS had been publishing TCI directories without liability protection before the sale of TAS.
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15.
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TWU stated that other directory publishers would not enjoy the limitations of liability that TCI proposed to extend to DIS. TWU also stated that the parent company of DIS, Verizon, is a major shareholder of TCI. Accordingly, TWU argued that the proposed tariff changes would constitute unjust discrimination against other directory providers and would give DIS, and indirectly TCI, an undue or unreasonable preference contrary to section 27 of the Act.
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TCI's reply
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16.
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TCI stated that TWU's assertion that the proposed changes were unnecessary was based on a misunderstanding of the relationship and status of TCI and its directory publishers before and after the sale of TAS.
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17.
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TCI stated that TAS had compiled, published and distributed TCI directories in accordance with TCI's tariffs in its capacity as TCI's agent, prior to the closing of the TAS sale on 31 July 2001.According to TCI, the defendant named in any suit launched for errors or omissions with respect to directories prior to 31 July 2001 would necessarily have been the disclosed principal, in this case TCI, rather than the agent of that principal, so there was no need to extend these limitations of liability to TAS.
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18.
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TCI stated that TAS stopped acting as TCI's agent when DIS became the official publisher of TCI-authorized directories on 31 July 2001. TCI stated that as a result of DIS' new status, DIS became more involved in the production, compilation, publication and distribution of these directories.
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19.
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TCI argued that, since there is no contract between DIS and the end-customer for the provision of TCI's tariffed services, DIS must rely on the terms and conditions of TCI's tariffs to protect itself from unlimited liability. Since the obligation to include TCI and competitive local exchange carrier end-user customer listings in the TCI-authorized directories and to publish and distribute those directories is based in TCI's tariffs, TCI argued that it would be appropriate for the Commission to permit TCI to modify its tariff to extend the relevant limitations of liability to its directory publisher.
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20.
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TCI submitted that any preference conferred to DIS by extending the liability protection would not be undue or unreasonable because the limitations of liability relate only to those services that DIS is contractually bound to provide to TCI customers to meet TCI's tariff obligations. TCI submitted that the independent directory publishers could insert limitation of liability provisions into their service contracts, whereas DIS does not enter into any contractual agreement with TCI's end-user customers for the provision of tariffed directory services.
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21.
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Finally, TCI submitted that extending the authority to consent to directory reproduction to the directory publisher is appropriate because the directory publisher adds substantial value to the listing data that is available in accordance with the directory file service (DFS) or basic listing interchange file (BLIF) tariffs. As DIS is the copyright owner of the white and yellow page directories, TCI submitted that it would be appropriate for any person publishing and reproducing these directories to first obtain permission from DIS.
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Commission analysis and determination
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22.
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TCI submitted that DIS would have to limit its liability associated with the provision of the white and yellow page directories through TCI's General Terms of Service as there was no contract signed between DIS and TCI's end-users. TCI also submitted that independent directory providers could incorporate limitation of liability provisions into their customer contracts, whereas DIS would not have this option. The Commission is of the view that there are other options available to DIS that would permit it to limit its liability. For example, DIS could negotiate indemnity provisions as part of its Publishing Agreement with TCI or DIS could negotiate liability protection with customers that advertise in the white or yellow page directories. The Commission further notes that independent directory providers that purchase customer listings through TCI's BLIF or DFS tariffs do not sign contracts with TCI's local exchange customers.
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23.
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With respect to TCI's proposal to revise its General Terms of Service to state that DIS must consent to directory reproduction, the Commission notes that DIS could, instead, negotiate a provision in the Publishing Agreement to require that TCI consult with DIS before consenting to directory reproduction.
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24.
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The Commission notes that the incumbent local exchange carriers' (ILECs') Terms of Service define the basic rights and responsibilities of the ILEC and its customers. Under its General Terms of Service, TCI is required to provide copies of both white and yellow page directories by district, at no charge, as part of local exchange service. The other ILECs are also under the obligation to provide white and yellow page directories as part of local exchange service.
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25.
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Given that the ILECs are required to provide white and yellow page directories as part of local exchange service and that, absent Commission approval, the ILECs are not able to limit their liability, pursuant to section 31 of the Act, the Commission has approved limitation of liability provisions associated with the obligation to provide directories for each ILEC under section 31 of the Act.
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26.
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The Commission notes that DIS agreed to produce, publish and distribute white and yellow page directories in Alberta and British Columbia on behalf of TCI under the terms of a commercial agreement. DIS is under no regulatory obligation to provide the white and yellow page directories.
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27.
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The Commission further notes that, because DIS is not a Canadian carrier, it does not require Commission approval for contractual limitation of liability provisions to come into effect.
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28.
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In light of the above, the Commission does not consider it appropriate to extend the protections in TCI's General Terms of Service associated with the regulatory obligation to provide white and yellow page directories to DIS. Accordingly, the Commission denies TCI's application.
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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: 2003-12-11