ARCHIVED - Telecom Decision CRTC 2004-83
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Telecom Decision CRTC 2004-83 |
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| Ottawa, 21 December 2004 | |
Call-Net Enterprises Inc. v. Bell Canada - Request for tariffs and tariff modifications with respect to work provided by Bell Canada |
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| Reference: 8661-C25-200409442 | |
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1. |
The Commission received an application from Call-Net Enterprises Inc. (Call-Net), dated 27 August 2004, filed pursuant to Part VII of the CRTC Telecommunications Rules of Procedure, requesting an order that Bell Canada modify its wholesale Diagnostic Maintenance Charge (DMC) tariff and add Coordinated Hot Cuts (CHCs) and Connecting Link Changes (CLCs) to its Access Services Tariff for interconnection with carriers and other service providers. Call-Net requested this order to resolve disputes between itself and Bell Canada dating back several years. |
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2. |
On 9 November 2004, the Commission advised the parties that it would adjudicate this matter on an expedited basis, in accordance with the expedited process established in Expedited procedure for resolving competitive issues, Telecom Circular CRTC 2004-2, 10 February 2004. |
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3. |
The matter was heard by a panel of three Commissioners on 13 December 2004. In addition to the oral component of the proceeding and the 27 August 2004 application, the Commission considered Bell Canada's Answer of 27 September 2004, Call-Net's Reply of 7 October 2004, Bell Canada's and Call-Net's Arguments of 23 November 2004 and 24 November 2004 respectively, and the parties' 26 November 2004 responses to Commission interrogatories. |
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Regulatory framework |
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4. |
Bell Canada's wholesale DMC tariff is set out as Access Services Tariff CRTC 7516 item 105: |
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5. |
In SIZE="3"> Co-location, Telecom Decision CRTC 97-15, 16 June 1997 (Decision 97-15), the Commission determined that Bell Canada should apply a labour rate of $80.00 for the first hour or fraction thereof, in the provision of certain services to co-locating carriers. With respect to applicable labour charges for work done on a call-out basis entirely outside of normal working hours, the Commission concluded that, consistent with Bell Canada's existing tariffs for miscellaneous labour other than repair and maintenance with partial cable systems, Bell Canada should charge for a minimum of three hours, two hours at $115.00 per hour and one hour at the regular rate of $80.00 per hour, (the "Call-out Rate"). These rates are approved in Bell Canada's General Tariff (GT) item 4960. |
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6. |
In CRTC makes recommendations regarding the repair and maintenance of connecting links, Telecom Order CRTC 2001-838, 21 November 2001 (Order 2001-838), the Commission determined that the incumbent local exchange carrier (ILEC) was responsible for repair and maintenance of the connecting link provided under an ILEC tariff. The Commission determined that charges for connecting link repair processes should be applied to the ILEC if a co-operative test was performed and a trouble was determined to be in the ILEC network or in the connecting link. The competitive local exchange carrier (CLEC) was responsible only if the trouble was determined to be in the CLEC network. |
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7. |
In Call-Net Part VII Application - Promotion of local residential competition, Telecom Decision CRTC 2004-4, 27 January 2004, (Decision2004-4), the Commission was of the view that it would improve the efficiency of the provisioning of unbundled local loops if ILECs performed certain work during field visits on behalf of CLECs. The Commission was of the view that these field visits would form part of the loop provisioning process and should be considered Category I Competitor Services. |
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Issue 1: Whether the Bell Canada wholesale DMC tariff is appropriate. |
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8. |
A DMC is a tariffed repair service that addresses out-of-service local lines, which is carried out by a local exchange carrier (LEC) in response to a trouble report from its retail end-customers or its wholesale local loop customers. |
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9. |
Call-Net submitted that the terms of service in Bell Canada's wholesale DMC tariff should be modified so that Call-Net would only pay a DMC when the trouble was proven to be in Call-Net's or its customers' facilities and/or equipment. Call-Net submitted that Bell Canada's wholesale DMC tariff was discriminatory because the terms of service between its wholesale and retail DMC tariffs were different. Call-Net asserted that Bell Canada's retail customers were only required to pay the DMC when a network trouble was proven to be in the customers' facilities and/or equipment. By contrast, in the terms of service of the wholesale DMC tariff, LECs like Call-Net were charged in the above circumstances and were also charged the DMC if Bell Canada found no trouble in its network. |
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10. |
Call-Net submitted in the alternative, that a wholesale rate for the DMC should be developed to reflect the differences between the terms of service and that the wholesale rate should be based on Category I Competitor Services. In support, Call-Net noted that in Decision 2004-4, the Commission determined that field visit services would be Category I Competitor Services. |
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11. |
Call-Net asserted that it was not appropriate for Bell Canada to bill the DMC where a trouble referred by Call-Net self resolved between the time it was reported and when a Bell Canada technician tested the local loop and customer equipment. Call-Net indicated that out of all the trouble reports sent to Bell Canada for resolution, approximately 5% of the troubles self resolved without the intervention of the field technician. |
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12. |
Call-Net submitted that there were only two possible explanations why a trouble would clear on its own. The trouble would have to be caused by either an intermittent trouble in the customer equipment or a transient event causing a temporary failure of Bell Canada's local loop. In Call-Net's view, an intermittent trouble in the customer equipment was highly unlikely and, accordingly, in virtually all cases, the trouble would be a transient event causing Bell Canada's local loop to fail. |
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13. |
Call-Net submitted that Bell Canada's decision to send a technician to physically test certain network elements demonstrated that a trouble existed in either Bell Canada's network or in Call-Net's end-customer's facilities and/or equipment. |
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14. |
Bell Canada submitted that the wholesale DMC tariff was clear and was being correctly applied. Under its tariff, Bell Canada was required to bill a DMC where no trouble was found in Bell Canada's portion of the local loop. |
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15. |
Bell Canada further argued that the terms of service of its wholesale tariff were consistent with the Master Agreement for Local Interconnection between Local Exchange Carriers (MALI) and the Installation, Testing and Maintenance Guidelines for Unbundled Loops (ITMG), both of which had been executed by Call-Net and received Commission approval. Bell Canada also submitted that the wholesale DMC tariff was consistent with the principle that CLECs are telecommunication carriers and have sophisticated knowledge of telecommunications networks and facilities. As such, Bell Canada submitted that the wholesale DMC tariff was consistent with the processes set out in both of these documents that required parties to take reasonable steps to ensure that a trouble did not originate from their own network before requesting another party to carry out testing. |
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16. |
Bell Canada disagreed with Call-Net's assertion that the wholesale tariff was discriminatory simply because the terms of service of the wholesale tariff were different from the terms of service of the retail tariff. Bell Canada submitted that CLECs had technical expertise that the retail end-customer did not possess, had control over network facilities and equipment and had the ability to sectionalize and test elements in the network. Moreover, Bell Canada noted that a retail primary exchange service (PES) customer was buying an end-to-end service with different service expectations as compared with a CLEC buying a discrete unbundled network element. |
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17. |
Bell Canada submitted that there was no evidence to indicate that the Bell Canada network was the cause of the majority of transient events. Further, Bell Canada submitted that most of its troubles on the local loop would be intermittent. In the case of intermittent troubles, Bell Canada noted that it would refund Call-Net the DMC. |
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18. |
Bell Canada further submitted that the wholesale DMC tariff allowed Bell Canada to charge the rate prescribed in Bell Canada's GT item 4210. In addition, Bell Canada submitted that the service was discretionary in nature, since a DMC only applied when a CLEC or other service provider had failed to properly test its network. Therefore, the service should not be considered as essential or near-essential. Bell Canada added that a wholesale rate developed using Category I Competitor Services principles would likely be higher than the existing tariff rate, since the latter rate was cost based and contained no mark-up and had not been increased from when it was established in 1992. |
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Commission analysis and determination |
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19. |
The Commission notes that Bell Canada's wholesale DMC tariff specifies that Bell Canada can bill a DMC where a CLEC has reported a trouble to Bell Canada, and Bell Canada's testing reveals no trouble in the local loop. The Commission also notes that Call-Net admitted that Bell Canada had applied the appropriate tariff when billing Call-Net for DMCs. |
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20. |
The Commission further notes Call-Net's argument that the terms of service of Bell Canada's wholesale DMC tariff should be modified to allow Bell Canada to bill a DMC only where Bell Canada's testing proves the trouble is within Call-Net's or Call-Net's end-customer's facilities and/or equipment. According to Call-Net, it should therefore not be billed in those instances where the problem self-resolves. |
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21. |
The Commission notes that there may be other causes for transient troubles, in addition to Bell Canada's local loop, including Call-Net's end-customer's equipment and/or facilities. The Commission also notes that Call-Net provided no evidence to support its contention that troubles that self resolve between the time they are reported and Bell Canada's field testing, were virtually always the result of a transient event in the local loop. |
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22. |
The Commission notes that the terms of service of Bell Canada's wholesale DMC tariff are consistent with the MALI and the ITMG and that Call-Net did not contest Bell Canada's assertion that, as a telecommunications carrier, it was different from Bell Canada's end-customers. The Commission also notes that Call-Net did not provide any policy rationale to support its contention that a wholesale customer of unbundled local loops should be given the same terms of service for a DMC as a Bell Canada PES customer. |
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23. |
Accordingly, the Commission finds that Bell Canada applied its wholesale DMC tariff correctly. Further, the Commission finds that there is insufficient evidence on the record to support that those terms of service should be revised. |
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24. |
The Commission notes that Decision 2004-4 supports the proposition that field technician visits in the context of loop provisioning would be considered a Category I service. The Commission also notes that the rate set out in Bell Canada's GT item 4210 does apply to the wholesale DMC tariff. The Commission also notes that this rate has not increased since 1992, is cost based and contains no mark-up. Accordingly, the Commission finds that the current rate is just and reasonable. |
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25. |
Consequently, the Commission denies Call-Net's application with respect to the wholesale DMC tariff. |
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Issue 2: Whether the labour rates charged by Bell Canada and the number of personnel assigned to complete a CHC are appropriate. |
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26. |
A CHC is required when a multi-line business customer transfers its access lines to another LEC, changes its existing access service or changes its physical location. CHCs are sometimes carried out outside normal business hours to minimize disruptions due to loss of telephone service to the end-customer. |
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27. |
Call-Net submitted that CHCs should be charged at Category I Competitor Services rates on a prospective basis, noting that in Decision 2004-4, the Commission determined that field visit services would be Category I Competitor Services. |
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28. |
Call-Net submitted that it had two additional issues, the call-out (overtime) rate charged by Bell Canada for a CHC and the number of persons that Bell Canada billed to Call-Net to carry out a CHC. |
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29. |
First, Call-Net submitted that CHC work ordered to be commenced between 5:00 p.m. and 6:00 p.m. was contiguous to normal working hours and, until the Commission approved Category I Competitor Services rates, should be charged at the tariff overtime rate of $115.00 per hour rather than the Call-out Rate of $310.00 minimum per person. |
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30. |
Second, Call-Net submitted that to carry out a CHC, it should be billed by Bell Canada for only one technician rather than three or four persons. Call-Net submitted only one technician was required to work overtime because some of the work could be completed during regular business hours, prior to the actual CHC and that other personnel that were assigned were only required if the CHC had to be reversed. Call-Net submitted that, based on its experience, since CHCs rarely needed to be reversed, assigning additional personnel to a CHC to deal with this eventuality was inefficient and expensive. |
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31. |
Call-Net requested that the Commission apply its determination retroactively to 1 January 2002. |
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32. |
With regard to the CHC labour rate, Bell Canada submitted that the Commission approved the application of GT item 4960 labour rate to CLECs in Decision 97-15 in the wholesale context of co-location. |
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33. |
Bell Canada submitted that the number of personnel involved in a CHC was appropriate and submitted that it only involved personnel necessary to ensure a successful CHC and to minimize service interruption to the end customer should the CHC fail. Bell Canada also submitted that, for complex CHCs that involve remotes and require additional Bell Canada technicians, it had developed the practice of not charging CLECs for more than two Bell Canada technicians involved in a call-out overtime CHC. Bell Canada further submitted that where Call-Net had been provided the option of reducing the number of personnel, as was the case with the Local Number Portability (LNP) representative, it had declined to do so. |
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Commission analysis and determination |
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34. |
The Commission notes that GT item 4960 defines labour rates, among other things, for services other than repair and maintenance for arrangements for cable-television undertakings and telecommunications carriers. The Commission is of the view that Bell Canada appropriately applied this tariff for CHCs and considers that the labour rate found in GT item 4960 is appropriate on a prospective basis. |
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35. |
The Commission notes that in some circumstances, only one technician is required to complete a CHC. In those circumstances, the Commission considers that it is appropriate for Bell Canada to charge, on a prospective basis, for only one technician. The Commission also notes that there may be CHCs with network configurations, such as cut-overs involving remotes, where additional technicians may be required. The Commission further notes Bell Canada's practice in these instances, of not charging CLECs for more than two Bell Canada technicians. In these specific instances, the Commission considers that it is appropriate for Bell Canada to charge for no more than two technicians. |
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36. |
The Commission notes that, in addition to the technician(s) required specifically for the CHC, Bell Canada charges Call-Net for personnel in order to co-ordinate the CHC and to minimize service interruption to the end-customer should the CHC fail. The Commission is of the view that these personnel, including, but not limited to, the Carrier Services Group coordinator and the LNP representative, should be available at Call-Net's discretion. Accordingly, the Commission considers that Bell Canada can only charge Call-Net for these additional personnel, on a prospective basis, when they are specifically requested by Call-Net. |
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Issue 3: Whether the Commission should develop a wholesale CLC tariff. |
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37. |
A Connecting Link is the physical facility that connects a Bell Canada local loop to a CLEC's co-located equipment in a Bell Canada central office and is provisioned in bundles of 100. A CLC is typically requested when the connection fails making a co-location link change necessary. |
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38. |
Call-Net submitted that Bell Canada charged $240.00 to complete a CLC that involved a 15-minute test and link change. Call-Net submitted that Bell Canada should file a CLC tariff applying a Category I Competitor Services rate equivalent to 15 minutes of labour. |
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39. |
As in the case of CHCs, Bell Canada submitted that the number and the cost of personnel required to carry out a CLC were appropriate. However, Bell Canada noted that since the Commission issued Order 2001-838, which required that co-operative testing of the link be carried out by both parties, Bell Canada could not bill Call-Net for a CLC unless Call-Net participated in a co-operative testing. |
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40. |
Bell Canada submitted that the real issue regarding CLCs was Call-Net's failure to engage in co-operative testing despite the fact that Bell Canada continued to carry out the CLCs at Call-Net's request, with the result that Bell Canada could not charge for the CLCs. Bell Canada submitted that the Commission should at least allow Bell Canada to charge Call-Net for CLC work when a co-operative test had not taken place in a reasonable time. |
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41. |
Call-Net replied that it would not engage in co-operative testing for each trouble, because of the expense and the delays in restoring service to the customer. Call-Net submitted that co-operative testing should only be required once a threshold of defective links was reached, at which time they could be tested on a batch basis. |
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42. |
Call-Net also noted a number of issues with respect to the correct test procedures between itself and Bell Canada and submitted that these issues could be addressed in the CRTC Interconnection Steering Committee (CISC). |
| SIZE="3">Commission analysis and determination | |
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43. |
The Commission is of the view that charges for CLCs are similar to charges for CHC as both involve labour charges for work completed by Bell Canada on behalf of Call-Net. Accordingly, the Commission considers that the labour rate found in GT item 4960 is appropriate for CHCs on a prospective basis. |
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44. |
The Commission notes that the parties have raised a number of issues with respect to the procedures for carrying out co-operative testing and also notes that the current process to determine when co-operative testing is required appears inefficient. The Commission also notes Call-Net's proposal to perform co-operative testing once a threshold of defective links has been reached and agrees that CISC is the appropriate forum to resolve this issue. Accordingly, the Commission directs CISC to develop a proposal for CLCs, including any non-consensus report, by 24 March 2005, specifying when co-operative testing should be performed, the appropriate test procedures and the number of personnel required. |
| 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: 2004-12-21
- Date modified: