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ARCHIVED - Telecom Decision CRTC 2004-17

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Telecom Decision CRTC 2004-17

  Ottawa, 12 March 2004
 

Ontario Sewer and Watermain Construction Association's request for enforceable locate request response standards

  Reference: 8622-O28-01/02
  In this decision, the Commission denies the Ontario Sewer and Watermain Construction Association's request for mandatory standards when telephone and cable system operators respond to excavators' requests for the location of their underground facilities.
 

Introduction

1.

The Commission received an application by the Ontario Sewer and Watermain Construction Association (OSWCA), dated 6 March 2002, filed pursuant to Part VII of the CRTC Telecommunications Rules of Procedure, requesting that the Commission set mandatory standards specifying the information and the time in which telephone and cable system operators respond to OSWCA members' requests for the location of their underground facilities in the immediate area of a proposed excavation.

2.

By Commission staff letter dated 31 May 2002, all telecommunications carriers and Class 1 and 2 cable system operators operating in Ontario were notified of OSWCA's application. Those wishing to participate in the proceeding were asked to register as interested parties and to file their comments on OSWCA's application by 15 July 2002.

3.

The following parties registered as interested parties: AT&T Canada Corp. on behalf of itself and AT&T Canada Telecom Services Company (now known as Allstream Corp. (Allstream)), Bell Canada, the Canadian Cable Television Association (CCTA), Futureway Communications Inc. (now doing business as FCI Broadband), GT Group Telecom Services Corp. (now known as LondonConnect Inc. (LondonConnect)), Northern Telephone Limited Partnership (now NorthernTel Limited Partnership), Rogers Cable Inc. (Rogers), Shaw Cablesystems GP (Shaw), TELUS Communications Inc. (TCI), the Corporation of the City of Thunder Bay and Vidéotron Télécom ltée.

4.

The Commission received comments from TCI on 11 July 2002, and from Bell Canada, CCTA and FCI Broadband on 15 July 2002. Reply comments were received from CCTA and OSWCA on 30 July 2002.

5.

Interrogatories from the Commission were sent on 15 October 2002 to OSWCA, interested parties and Ontario independent carriers not registered as interested parties that could be affected by the Commission's decision. The Commission's letter also set out a process for further comment and reply. O.N.Telcom, on 4 November 2002, and Gosfield North Communications Co-operative Limited, on 8 November 2002, responded to the interrogatories. OSWCA, the interested parties, the Canadian Alliance of Publicly-Owned Telecommunications Systems (CAPTS) on behalf of its members, and the Ontario Telecommunications Association (OTA) on behalf of its members, responded to the interrogatories on 27 November 2002.

6.

Allstream, Bell Canada, CCTA, FCI Broadband, and OSWCA filed comments pertaining to other parties' responses to interrogatories on 11 December 2002. Bell Canada, CCTA, OSWCA and TCI filed reply comments on 20 December 2002.
 

Background

7.

In May 2001, OSWCA requested that the Commission set mandatory standards when telephone and cable system operators respond to OSWCA members' requests for the location of their underground facilities (locate requests) in the immediate area of a proposed excavation. OSWCA stated that, while excavators had a legal duty to ascertain the location of public utilities' underground facilities before excavating, telephone and cable system operators did not have a reciprocal obligation to identify the location of their facilities or to respond completely or in a timely manner. OSWCA noted that there were mandatory standards established when natural gas and electrical power operators responded to excavators' locate requests. OSWCA submitted that setting mandatory standards on telephone and cable system operators would prevent damage to buried facilities and reduce excavators' risks and costs.

8.

OSWCA's request was referred to the CRTC Interconnection Steering Committee's Business Process Working Group (BPWG). At its 21 August 2001 meeting, the BPWG noted that many telecommunications service providers use one-call organizations, such as Ontario One Call, that provide information on the location of facilities for many public utilities. The BPWG also noted that Ontario One Call had established committees that meet regularly to review service levels and process improvement, as well as damage prevention initiatives. The BPWG further noted that OSWCA had been invited to send representatives to these committee meetings and it had not attended. The BPWG was of the view that the Commission should advise OSWCA to address its concerns with these organizations.

9.

Ontario One Call is a voluntary not-for-profit corporation that co-ordinates the processing of locate requests at no charge to the originator. Its members include telecommunications service providers, plus gas and cable companies. Ontario One Call establishes a centralized point of contact for excavators. It takes the necessary information from the requesting excavator and transmits it to its member(s) with underground facilities in the area. Upon receipt of the locate request information, the Ontario One Call member contacts the excavator and, if necessary, arranges to dispatch a locate technician to identify and mark any buried facilities. Ontario One Call has various committees focused on improving call centre procedures and promoting damage prevention.

10.

Ontario One Call members' response time to locate requests depends on the urgency of the request. Ontario One Call's guidelines are:
  a) within two hours for emergency requests (where loss of an essential utility service has occurred);
  b) within 24 hours for priority requests (non-emergency situations that could result in a failure of an essential facility service, or where a safety hazard could become imminent); and
  c) for standard requests (for situations where work activities can be planned in advance), the excavator is contacted by the utility or its agent within 48 hours and the locate request is completed by the utility or its agent within seven business days.
 

OSWCA's application

11.

OSWCA submitted that telephone services were a vital public necessity and the consequences of the loss of access to telephone services could be as dangerous to the public as the loss of electricity and natural gas.

12.

OSWCA referenced a report by the National Energy Board (NEB) entitled Damage Prevention Regulations Survey Results, dated 15 February 2001 (the Report) indicating that the NEB had used the Report to develop its damage prevention regulations. OSWCA considered that the Report could assist the Commission in establishing enforceable standards for telephone and cable system operators.

13.

OSWCA also stated that the telephone and cable system operators currently provide paint markings and a sketch showing the lateral location of their underground facilities, when they respond to a locate request. OSWCA submitted that they should also provide the following information:
 
  • structure and composition of their underground facilities in order for excavators to ensure that they have correctly located all facilities;
 
  • unusual conditions, such as whether there are service boxes or junctions;
 
  • the depth of the facilities to assist excavators in scheduling the appropriate work force and the equipment for the work; and
 
  • abandoned underground facilities, to assist excavators in locating all appropriately marked underground facilities.

14.

OSWCA stated that there was no central database available to find out whether telephone and/or cable system operators were located in a municipal rights-of-way. OSWCA noted that its members typically send their locate requests three or four days prior to the scheduled excavation date and submitted that it would be reasonable for telephone and cable system operators to respond to a locate request within three business days. OSWCA submitted that its members were reluctant to request blanket requests because locate responses were only valid for 30 days.

15.

OSWCA stated that standard locate requests handled through Ontario One Call usually required one week notification and stated that most U.S. jurisdictions required that excavators notify utility operators a minimum of two business days prior to excavation. OSWCA further noted that one-call organizations in the U.S. rely on statutes and regulations to compel utilities to become members and to respond within specific timeframes.

16.

OSWCA noted that its members did not keep records of locate requests, but estimated that its members made between 10,000 and 20,000 locate requests per year to telephone and cable system operators. Of these, OSWCA stated that:
  a) 25% to 50% were responded to within three business days;
  b) more than 90% were responded to within one week; and
  c) less than 10% did not have adequate response information.
 

Position of other parties

17.

Bell Canada, CCTA, FCI Broadband, TCI, LondonConnect, Allstream, OTA, CAPTS and O.N.Telcom submitted that the Commission should deny OSWCA's application to impose mandatory standards when telephone and cable system operators respond to locate requests.

18.

Bell Canada stated that it saw no reason for Commission oversight over industry standards. Bell Canada noted that OSWCA had been invited to attend Ontario One Call meetings and to join its committees but neither OSWCA nor its members had attended. Bell Canada submitted that OSWCA's participation in Ontario One Call would be a more effective and appropriate mechanism to promote changes to the handling of locate requests.

19.

Bell Canada also submitted that the Commission had dealt with similar issues in Ledcor/Vancouver - Construction, operation and maintenance of transmission lines in Vancouver, Decision CRTC 2001-23, 25 January 2001 (Decision 2001-23). Bell Canada stated that in that proceeding, parties discussed how to locate and record the position of utilities' underground infrastructure in the public thoroughfare. Bell Canada also stated that it was an active supporter of joint planning and co-ordination between utilities and municipalities through membership in Public Utilities Co-ordinating Committees (PUCCs) to co-ordinate public safety and damage prevention initiatives.

20.

Bell Canada stated that it had received 380,000 locate requests in 2001 and 330,000 in the first nine months of 2002 in Ontario. Bell Canada indicated that they had virtually all been responded to within Ontario One Call's prescribed timeframes.

21.

Bell Canada argued that some of the information that OSWCA was requesting as part of telephone and cable system operators' responses to locate requests was not feasible, too costly or unwarranted. Bell Canada, for example, submitted that the vertical depth of its underground facilities varied over time as a result of activities beyond Bell Canada's control after the facilities were installed, such as road reconstruction, paving or ditching. Bell Canada also expressed concern that certain of OSWCA's proposals could encourage excavators to avoid seeking locate requests and increase the risk of damaging underground facilities.

22.

Bell Canada submitted that telephone and cable system operators have a vested interest in minimizing damage to their underground facilities. Bell Canada also submitted that Commission-imposed standards could undermine the processes of organizations such as Ontario One Call because utilities regulated under the Telecommunications Act (the Act) would be subject to different standards than other utilities. Bell Canada stated that Ontario One Call was reviewing existing legislation around safe excavation standards and examining the feasibility of imposing registration of utilities' facilities with Ontario One Call.

23.

CCTA submitted that issues raised by OSWCA would be more appropriately addressed through PUCCs. CCTA noted that OSWCA had not attended PUCCs meetings and should be encouraged to explore solutions through those bodies. CCTA also noted that municipalities ensure that cable companies promptly and accurately respond to locate requests by making it a standard PUCCs requirement and/or incorporating the requirement into a municipal access agreement (MAA).

24.

CCTA stated that its members either use Ontario One Call or have their own in-house policies and procedures to respond to locate requests. CCTA submitted that mandatory membership to one-call organizations was not necessary since its members' processes and procedures either met or exceeded those of Ontario One Call. CCTA indicated that its members dealt with 80% of locate requests immediately, while the remaining 20% were dealt with on a prioritized basis. Standard locate request responses were generally dealt with within five business days. In light of the volume of locate requests, CCTA submitted that it would be unreasonable and economically unfeasible to expect telephone and cable system operators to respond more quickly. CCTA further submitted that telephone and cable system operators' response times were sufficiently timely when the excavation work was well planned and organized. CCTA considered that additional costs due to more stringent responses should be borne by the requesting party.

25.

Although it could not provide information for all its members, CCTA stated that its largest members, Rogers and Shaw, had received approximately 267,000 locate requests in 2001 and forecasted receiving an estimated 285,000 in 2002.

26.

CCTA submitted that the NEB's draft regulations were not appropriate for telephone and cable system operators as damaging pipelines posed vastly more significant health, safety and environmental risks than damaging telecommunications facilities.

27.

CCTA also submitted that since pipelines are rigid pipes which cannot be threaded around obstacles it was easier to provide their vertical and horizontal depth. CCTA added that the depth of telecommunications facilities varied depending on field conditions and could only be accurate at the point where the depth was measured.

28.

FCI Broadband stated that it was no longer using Ontario One Call to respond to locate requests because it was better suited for larger entities with larger networks. FCI Broadband added that Ontario One Call's search area for locate requests was too wide, resulting in locate requests where FCI Broadband had no facilities. FCI Broadband stated that it still responded to locate requests it received directly from excavators.

29.

Although it tried to respond to locate requests within Ontario One Call's timeframes, FCI Broadband stated that, since it contracted out this activity, in some instances its response time could be longer.

30.

FCI Broadband submitted that OSWCA did not provide firm evidence that existing response times and levels of information were so inappropriate as to require mandatory standards.

31.

FCI Broadband estimated that it responded to approximately 900 locate requests per year. FCI Broadband submitted that a three-day response time was unreasonable. FCI Broadband also submitted that, in view of the nature of the service and the planning required to place sewers and watermains, excavators should be able to more properly manage their work and give more than three days notice for their locate requests.

32.

FCI Broadband argued that the greater potential for personal harm and danger justified a greater level of accuracy when responding to locate requests for gas and electricity power facilities. FCI Broadband submitted that damage to telecommunications facilities could more generally be characterized as a significant inconvenience to the public.

33.

TCI noted that it was a member of Ontario One Call. TCI stated that most Ontario municipalities with whom it signed MAAs to expand its network required that the MAA specify that TCI be a member of a one-call organization and locate its facilities within established timeframes.

34.

TCI noted that, in Decision 2001-23, the Commission favoured increased reliance on joint planning and co-ordination arrangements and urged all users of municipal rights-of-way to join and actively participate in PUCCs. TCI also noted that OSWCA had not attended any PUCCs meeting. TCI encouraged OSWCA to participate in PUCCs and Ontario One Call meetings in order for the industry, as a whole, to effectively deal with locate request issues as they arose. TCI also urged OSWCA to initiate a policy of providing early notification to Ontario One Call and PUCCs so that all carriers could effectively address locate requests.

35.

TCI stated that it responded to locate requests within Ontario One Call's prescribed timeframes. TCI also stated that it responded to 4,555 locate requests in Ontario in 2001.

36.

TCI noted that OSWCA's application would only impose standards on telephone and cable system operators, to the exclusion of others. TCI submitted that mandatory standards should spring from legislation, and be separate and apart from the Act, and address locate request response standards, for predictability and consistency, for all utility providers.

37.

TCI submitted that more precise locate markings would require process, equipment and procedural changes, which would significantly increase its response costs. TCI submitted that, if these additional costs were imposed on it, TCI might have to charge when responding to locate requests. TCI also submitted that more accurate depth reading were not possible due, in part, to the limited accuracy of the equipment, to terrain movement over time and to the presence of other utilities in the same area.

38.

LondonConnect stated that it used the priority levels and response times established by Ontario One Call. LondonConnect stated that it had received about 38,550 locate requests in 2001 and 37,000 as of October 2002. LondonConnect considered that more stringent locate request response guidelines were appropriate for pipelines because of their inherent danger and the fact that they were usually located in more controlled and restricted rights-of-way. LondonConnect submitted that telecommunications facilities were usually located in shared rights-of-way and, because of their more flexible nature, were more prone to movement. LondonConnect also submitted that records for hard utilities, such as sewers and watermains, used relative horizontal and vertical positions in their permit and construction records. LondonConnect added that it was its understanding that these appropriate specifications were not provided to contractors or excavators due to the potential overuse of mechanical equipment when hand-digging is required.

39.

Allstream stated that it used the priority levels and response times of Ontario One Call and that it already provided most of the elements endorsed by OSWCA. Allstream added that it had received 36,512 locate requests in 2001 and 24,009 as of September 2002. Allstream indicated that it had advised excavators to hand-dig within three feet of its cable, in accordance with industry standards. Allstream also noted that telecommunications facilities were normally buried around four feet deep but that depth could vary because of compacted soil or erosion.

40.

OTA stated that its members usually respond to emergency locate requests as soon as practically possible, to priority locate requests within 24 hours and to standard locate requests within 48 hours. Those OTA members who track locate requests had received 5,944 requests in 2001 and 6,859 as of 30 September 2002. OTA did not support setting up new standards for telecommunications and cable system operators only as OSWCA had not provided concrete evidence that existing standards were inadequate. OTA also submitted that requiring the depth of facilities was unrealistic because the depth was subject to change over time.

41.

CAPTS submitted that standards were not necessary because CAPTS members already met or exceeded OSWCA's proposed standards. The CAPTS members who track the locate requests had received 3,732 requests in 2001 and 2,736 as of late October 2002. CAPTS noted that setting standards for locate request responses would impose additional regulatory oversight, which would be contrary to the Commission's expressed intent to reduce the regulatory burden of smaller incumbent local exchange carriers (ILECs).

42.

O.N.Telcom stated that it usually responded to locate requests based on their priority and it usually dealt with a request within two days. O.N.Telcom noted that it had received 93 locate requests in 2001 and 73 to about mid-October 2002. O.N.Telcom submitted that, if the Commission decided to set standards, it should not do so without an exhaustive examination of the issues, similar to the process undertaken by the NEB.
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OSWCA's reply comments

43.

OSWCA submitted that telephone and cable system operators' responses were not always accurate and sometimes took as long as 15 days during peak demand periods. OSWCA also submitted that excavators often only had a short lead time to place locate requests. OSWCA submitted that finalization and formal execution of the contracts with municipalities were often completed only a few days in advance of the start of construction, which explained their requests for three-day response times. OSWCA noted that gas and electricity power distributors did not seem to consider a three-day response time onerous. OSWCA also stated that many U.S. states require utility providers, including telecommunications providers, to respond within two days.

44.

OSWCA submitted that the potential for damage to telecommunications facilities increased not only when excavators failed to locate them but also when Canadian carriers failed to provide reasonably accurate and complete information in a timely manner. OSWCA also submitted that the potential for damage was compounded by the fact that Canadian carriers did not have a binding obligation to provide accurate information. OSWCA further submitted that standards would balance the interests and concerns of Canadian carriers, excavators and the public.

45.

OSWCA also submitted that one-call organizations, PUCCs and MAAs were not substitutes for legal standards. In support, the OSWCA noted that:
  a) membership to one-call organizations and/or PUCCs was not mandatory;
  b) one-call organizations and PUCCs could not enjoin nor compel utilities to respond to locate requests adequately, accurately and in a timely manner;
  c) one-call organizations did not track the status of locate requests or ensure that locate markings were accurate; and
  d) there was no evidence that municipalities imposed an obligation in MAAs on utility providers to respond accurately and timely to locate requests. Furthermore, utility providers may obtain access to a municipal right-of-way by means other than an MAA.

46.

OSWCA stated that it had actively promoted damage prevention in Ontario and had worked closely with natural gas and electrical power distributors in this regard. OSWCA further stated that it had never been invited to specific PUCCs or Ontario One Call damage prevention meetings and would welcome such an invitation.

47.

OSWCA submitted that Decision 2001-23 did not enact standards to respond to locate requests, but rather dealt with the issue of whether the use of municipal rights-of-way by Canadian carriers was within provincial or federal jurisdiction. OSWCA also submitted that Decision 2001-23 affirmed that the Commission had exclusive jurisdiction over matters relating to telecommunications and that Canadian carriers' responses to locate requests were within the Commission's exclusive jurisdiction. OSWCA added that the Commission was also best equipped to develop appropriate locate request response standards for Canadian carriers.

48.

OSWCA submitted that the Commission should consider the NEB's draft regulation when pipeline operators respond to locate requests, such as:
  a) requiring a response within three working days of the request;
  b) clarifying that the utility is responsible for the costs of responding to locate requests;
  c) establishing accuracy criteria, on a horizontal basis, for locate markings;
  d) specifying the elements to be included in a response to a locate request; and
  e) mandating membership in "one-call centres".

49.

OSWCA submitted that other associations shared its preference for mandatory standards for locate request responses, and also submitted that it was prudent and appropriate for the Commission to examine the standards imposed on other regulated utility providers to determine the standards for telephone and cable system operators.
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Other parties' reply comments

50.

Bell Canada noted that OSWCA did not provide statistical data to support its claims and submitted that the evidence provided by parties in this proceeding indicated that there was no need for Commission intervention. Bell Canada further submitted that OSWCA itself acknowledged that the accuracy of locate information, the level of detail and the timeliness of responses had generally met OSWCA members' needs. Bell Canada expressed its belief that OSWCA's issues would be better addressed through Ontario One Call and PUCCs and recommended that the Commission encourage telephone and cable system operators to support and participate in such organizations.

51.

CCTA noted that all interested parties considered that locate request response standards were neither necessary nor appropriate since telephone and cable system operators already had appropriate procedures in place. CCTA also agreed with Bell Canada that standards could undermine efforts to establish comprehensive procedures through the use of one-call organizations and PUCCs.

52.

CCTA did not consider that all utility providers should be required to join one-call organizations as these organizations were not always a viable or appropriate option for some utility providers.

53.

TCI submitted that OSWCA's statement that "CRTC regulated industries have no enforceable locate (request) response standards" did not take into account that it was in the telephone and cable system operators' best interests to respond promptly, in order to protect their facilities.

54.

TCI also submitted that Ontario One Call does not merely relay a locate request to participating utilities, as claimed by OSWCA, but also provides the customer with a single source of disclosure of the buried facilities in the area under excavation. TCI submitted that there were sufficient and effective procedures, processes and committees established to address utility construction planning.
 

Commission analysis and determination

55.

The Commission notes that excavators are responsible, prior to excavation, to contact all underground facilities owners to ascertain whether there are any underground facilities where the excavators plan to dig. The Commission also notes that telephone and cable system operators have processes and procedures in place to respond to locate requests. Sometimes these processes and procedures are voluntary. In other instances, municipalities impose the obligation as part of a requirement through a PUCC or an MAA. The Commission also notes that it is in the best interest of telephone and cable system operators to provide quick and accurate responses to locate requests in order to minimize the risk of damage to their facilities. Furthermore, the Commission notes that telephone and cable system operators currently assume all costs when responding to locate requests.

56.

The Commission notes that OSWCA estimated that its members make between 10,000 and 20,000 locate requests to telephone and cable system operators per year. Conversely, the Commission notes that telephone and cable system operators in Ontario process well in excess of 500,000 locate requests annually.

57.

The Commission does not consider that OSWCA has demonstrated that enforceable standards are required when telephone and cable system operators respond to locate requests.

58.

First, the Commission notes that, based on OSWCA's own estimates, more than 90% of telephone and cable system operators' responses are provided within seven days.

59.

Although excavators may be pressed by time when placing their requests because of delays in finalizing the agreements with municipalities, the Commission notes that telephone and cable system operators do not contribute to those delays. Therefore, the Commission considers that telephone and cable system operators should not be held responsible for those delays. Furthermore, regardless of potential delays in finalizing any agreement, the Commission considers that excavators should be able to make their requests in a timely manner, since sewer and watermain placement is a planned undertaking and responses to locate requests are valid for 30 days at no cost to the excavators.

60.

The Commission also notes that there are significant differences between gas and electrical power providers' facilities and those of telephone and cable system operators. First, damage to gas and electrical power distribution facilities could cause significant health, safety and environmental problems. Damage to telecommunications and cable facilities does not pose an equivalent high level of risk. Second, the depth of telecommunications and cable facilities varies as a result of circumstances that may be beyond the control of the telephone and cable system operators after the facilities have been installed, such as road reconstruction, paving or ditching. Third, as telecommunications and cable facilities are more flexible, they are more subject to movement and are more easily threaded around obstacles, thus affecting the location and depth of those facilities.

61.

In light of the above, the Commission considers that the existence of compulsory standards in the gas and electrical power distribution industries does not mean that compulsory standards are also required in the telephone and cable system industries.

62.

The Commission also considers that imposing additional regulation on telephone and cable system operators would be inconsistent with the Commission's goal of reducing regulation, where appropriate, particularly for non-dominant carriers and small ILECs. Furthermore, the Commission considers that OSWCA's proposed locate request response standards could be more onerous on non-dominant carriers and the smaller ILECs because of their size and more limited resources.

63.

Finally, the Commission considers that the parties should make full use of other venues and options available to them. For example, the Commission notes that Ontario One Call has various committees focused on improving call centres' internal processes and in promoting damage prevention. The Commission also notes that some of OSWCA's concerns could be addressed through PUCCs. Based on the record of this application, it would appear that those options have not been fully explored. The Commission encourages OSWCA to avail itself of the committees and mechanisms offered by such consultative bodies to examine alternative solutions and develop processes it considers more suitable to its requirements.

64.

Accordingly, the Commission denies OSWCA's application for mandatory standards specifying the information and the time in which telephone and cable system operators must respond to locate requests.
  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

Date Modified: 2004-03-12

Date modified: