ARCHIVED - Telecom Commission Letter - 8690-S9-200414722
This page has been archived on the Web
Information identified as archived on the Web is for reference, research or recordkeeping purposes. Archived Decisions, Notices and Orders (DNOs) remain in effect except to the extent they are amended or reversed by the Commission, a court, or the government. The text of archived information has not been altered or updated after the date of archiving. Changes to DNOs are published as “dashes” to the original DNO number. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, you can request alternate formats by contacting us.
Ottawa, 1 September 2005
Shaw Cablesystems Limited
Farris, Vaughan, Willis & Murphy
Re: Part VII application by Shaw Cablesystems Limited seeking an order granting access to municipal property in the City of Vancouver
In this letter, the Commission provides guidelines as to what it considers reasonable terms and conditions of municipal access for Shaw Cablesystems Limited (Shaw) in the City of Vancouver (Vancouver). Specifically, the Commission considers it reasonable for Shaw and Vancouver to negotiate conditions of access for a term of 15 years. The Commission also considers it reasonable that Shaw have certainty of access to highways and other public places in Vancouver under an MAA of general application. The Commission notes that the principles of Ledcor /Vancouver - Construction, operation and maintenance of transmission lines in Vancouver , Decision CRTC 2001-23, 25 January 2001 , may be of assistance in Shaw and Vancouver's negotiations of other terms and conditions. If there is no agreement between Shaw and Vancouver within 60 days following the date of this letter, the Commission will be prepared to consider granting permission under subsection 43(4) of the Telecommunications Act , on an expedited basis, subject to any conditions which the Commission finds reasonable.
1. On 6 December 2004, Shaw Cablesystems Limited on behalf of itself and its affiliated companies including Shaw Communications Inc. (Shaw), filed a Part VII application with the Commission pursuant to sections 42 and 43 of the Telecommunications Act (the Act) seeking an order from the Commission for access to the highways and other public places within the jurisdiction of the City of Vancouver (Vancouver). Shaw requested the order to allow it to construct, maintain and operate its transmission lines and related communications network facilities, under terms and conditions to be determined by the Commission in accordance with the principles set out in Ledcor/Vancouver - Construction, operation and maintenance of transmission lines in Vancouver, Decision CRTC 2001-23, 25 January 2001 (Decision 2001-23).
2. Specifically, Shaw asked the Commission for the following relief:
3. On 6 December 2004 , Shaw filed its Part VII application with the Commission.
4. On 20 December 2004, Vancouver requested a delay in filing its answer, from 6 January 2005 to 19 January 2005. By letter dated 22 December 2004, Shaw objected to the delay unless Vancouver committed to take no further action on a legal matter before the Supreme Court of British Columbia (BCSC) brought by Vancouver against Shaw and others. By letter dated 23 December 2004, Vancouver stated that the action initiated by it in front of the BCSC related to monies owing to Vancouver for the years 2001 and 2002, under a 1973 Wirevision Agreement (the Wirevision Agreement), which expired 31 December 2002, and had nothing to do with Shaw's Part VII application.
5. On 30 December 2004, the Commission granted Vancouver a two week extension in filing its answer to Shaw's Part VII application, from 6 January 2005 to 19 January 2005. Accordingly, on 19 January 2005, Vancouver filed comments and on 31 January 2005 Shaw filed reply comments
6. On 8 February 2005 , Vancouver filed a letter containing additional facts intended to complete the record of this process, related to Shaw's requests for access and Vancouver 's approval of permits.
Relevant statutory provisions and regulatory background
7. Section 7 of the Act sets out a number of objectives for Canadian telecommunications policy. In particular subsections (a), (b), (c) and (f) have relevance to this application:
8. Sections 42, 43 and 44 of the Act set out a framework for construction of telecommunications facilities and disputes arising from any request by a carrier to construct facilities.
9. In Decision 2001-23, the Commission established principles (the Ledcor principles) that it anticipated would assist carriers and municipalities in negotiating Municipal Access Agreements (MAAs), but which did not prescribe terms and conditions related to the future construction of transmission lines by any carrier. In Decision 2001-23, the Commission made a specific determination with respect to Ledcor Industries Limited's (Ledcor's) request for access to 18 street crossings in Vancouver. In addition, the Commission stated that Decision 2001-23 would not be a template for future MAA disputes, but should any other MAA issue arise and be brought before the Commission for resolution, it would be dealt with on a case-by-case basis.
10. Decision 2001-23 was upheld by the Federal Court of Appeal in Federation of Canadian Municipalities ,  and the Supreme Court of Canada denied leave to appeal that judgement on 4 September 2003 .  Federation of Canadian Municipalities held that subsection 43(4) of the Act gives the Commission broad discretion to fix conditions of access to implement the objectives of the Act contained in section 7.  Regarding the effect of Decision 2001-23 on the negotiation of MAAs between other parties, the Federal Court of Appeal recognized that " in the context of settling the dispute before it, the [Commission] elaborated a number of principles with a view to assisting carriers and municipalities in their future negotiations of terms and conditions of access " and that " these principles are therefore not binding on anyone and the Commission expressly refrained from adopting 'any particular model or agreement to serve as a starting point for discussions between municipalities and carriers'. '' 
11. In Terms and conditions of existing agreements for access to municipal rights-of-way, Telecom Decision CRTC 2003-82, 4 December 2003 (Decision 2003-82) the Commission stated that it would not bring all existing MAAs into the same framework established in Decision 2001-23.
12. On 20 August 1993, Rogers Cable TV Limited (Rogers), as part of a take-over process, entered into an amendment agreement for an existing agreement between Canadian Wirevision Limited (Wirevision) and Vancouver. In 1973, Wirevision entered into an agreement with Vancouver for permission to construct facilities and to access Vancouver's streets and other public places. The Wirevision Agreement expired on 31 December 2002.
13. In November 2000, Shaw entered into an asset exchange with Rogers in which Shaw acquired the assets of Rogers ' cable TV distribution system in Vancouver. On 9 November 2000, Vancouver issued a letter to Rogers, copied to Shaw, which stated that Vancouver would not allow the Wirevision Agreement to be assigned to Shaw. In the same letter, Vancouver stated that Shaw would have to negotiate a new MAA prior to any occupancy of Vancouver's streets.
14. Shaw consistently took the position that it did not assume the obligations of Rogers under the Wirevision Agreement. In an invoice dated 21 November 2001, Vancouver requested payment from Shaw of usage charges incurred under the Wirevision Agreement and, in early 2002, Shaw made a payment to Vancouver of $52,366.49. Shaw claimed that this payment was made in error, while Vancouver stated that the payment was Shaw's pro-rated share of money owing under the Wirevision Agreement for 2000.
15. Vancouver and Shaw have continued to exchange correspondence concerning the establishment of fees and other terms of proposed MAAs, with Vancouver insisting that Shaw has assumed the obligations of Rogers under the Wirevision Agreement. Vancouver claimed to have granted Shaw access to its streets from November 2000 to 31 December 2002 under the terms of the Wirevision Agreement. In December 2002, Vancouver proposed that Shaw either enter into an extended version of the Wirevision Agreement or a new interim MAA in a form prescribed by Vancouver.
16. On 23 September 2003, Vancouver offered Shaw access under Vancouver's standard site-specific interim MAA for a particular construction project at the Shaw Tower. Vancouver noted that Shaw did not use this access. Since April 2004, Shaw has been able to access the streets of Vancouver to construct facilities through an arrangement between Shaw and Urban Networks Inc. (Urban). In 2001, Urban signed an interim MAA with Vancouver, which was renewed on 20 April 2004 . Vancouver is aware of the arrangement between Shaw and Urban and continues to grant Shaw access to its streets through that arrangement.
17. On 22 April 2004, Vancouver initiated a court action against both Rogers and Shaw in the BCSC, seeking payment of fees owing under the Wirevision Agreement for the years 2001 and 2002. Shaw has countered that the proper authority and forum for resolving this issue is the Commission.
Positions of parties
Do the circumstances of this application engage the Commission's jurisdiction?
18. Shaw stated that subsection 43(2) of the Act creates a substantive right for carriers to construct, maintain and operate their facilities on highways and other public places. Shaw noted that subsections 43(3) and 43(4) of the Act provide a process for obtaining the consent of the municipality or other public authority or, in the absence of such consent, the Commission's permission to construct a transmission line. Shaw added that, pursuant to subsection 42(1), the Commission is given the power to permit a carrier to construct, operate, use or maintain its facilities, subject only to the Commission's determination of compensation or other just and expedient conditions.
19. Shaw submitted that it has made sufficient efforts to negotiate and obtain the consent of Vancouver for access to municipal property, but has been unable to obtain that consent on terms acceptable to Shaw.
20. Vancouver submitted that the purpose of subsection 43(4) is clear. Vancouver stated that where a carrier or distribution undertaking has been unable to obtain access to certain municipal streets or highways for the purpose of constructing transmission lines, it may apply to the Commission and the Commission may grant it permission to construct its lines on such property and make that permission subject to conditions.
21. Vancouver argued that Shaw was never denied access to Vancouver's streets. Vancouver submitted that Shaw was able to obtain access every time it requested it and Vancouver was willing to continue to give Shaw access through Shaw's arrangement with Urban or by entering into an interim agreement.
22. Vancouver argued that the Commission's jurisdiction under subsection 43(4) will only engage when access is denied to the carrier or distribution undertaking. According to Vancouver, the trigger must be limited to these circumstances because the intrusion upon municipal rights provided in subsection 43(4) will not be permitted unless it is essential to the operation of the carrier or distribution undertaking. Vancouver submitted that because Shaw was not denied access to Vancouver 's streets and there are no specific facts or disputes to adjudicate, Shaw's application does not contain the required circumstances for triggering the Commission's jurisdiction under subsection 43(4)
23. Vancouver stated that the Commission's powers under section 42 are only engaged where the Commission is able to properly exercise its jurisdiction over a particular matter pursuant to some other provision in the Act.
24. According to Shaw, the correct test to determine if it is entitled to apply to the Commission under subsection 43(4) is whether Shaw has been unable to obtain the consent of the municipality on terms acceptable to Shaw. Shaw argued that Vancouver's repeated contention that Shaw has never been denied access is based on an improper interpretation of subsection 43(4). Shaw stated that the relevant and determinative issue is whether the person seeking access has actually obtained consent on terms acceptable to it.
25. Shaw submitted that it tried several times and was unable to obtain Vancouver 's consent on terms acceptable to Shaw. Shaw stated that Vancouver refused to issue permits except upon signing an interim MAA that Vancouver knew was unacceptable to Shaw, effectively withholding Vancouver's consent. Shaw submitted, in addition, that Vancouver had not given consent to Shaw for the lines being constructed through Shaw's arrangement with Urban. Shaw asserted that its indirect and interim arrangements with Urban do not result in Shaw obtaining consent on terms acceptable to Shaw.
Request for, and the Commission's jurisdiction to grant, a long-term, city-wide MAA
26. Shaw claimed that Vancouver has refused to enter into anything but interim agreements that expired at the end of the calendar year ( 31 December 2004 ). Shaw stated that it requires an MAA of longer duration for network planning, budgeting and other purposes. Shaw claimed that Vancouver refused to discuss fees or other fundamental terms of a long-term MAA.
27. Shaw submitted that it was imperative that there be no further delay in finalizing an MAA with Vancouver. Shaw stated that it had been negotiating terms of access to Vancouver's municipal property with Vancouver for two years.
28. Shaw alleged that, in earlier correspondence, Vancouver 's rationale for entering into interim agreements was because of the legal proceedings arising from Decision 2001-23. Shaw noted that those legal proceedings ended in 2003. According to Shaw, Vancouver continued to state that it had a number of issues to deal with prior to being in a position to offer a long-term MAA. Shaw submitted, however, that Vancouver had not identified or explained what those issues were.
29. Vancouver submitted that the Commission has no jurisdiction to determine the terms of a comprehensive, long-term MAA when a carrier and a municipality are unable to negotiate the terms of such an agreement, and compel Vancouver to enter into such an agreement. Vancouver submitted that the adjudicative powers conferred on the Commission under subsection 43(4) are limited to resolving specific disputes between carriers and municipalities, regarding access to specific municipal streets and highways, for the purpose of constructing specific transmission lines or other installations.
30. In Vancouver's view, the due regard obligation is a mandatory condition precedent to the Commission's exercise of its power under subsection 43(4). Vancouver submitted that the Commission must consider the impact of construction on any use and enjoyment of the highway or other public place by others before it grants permission and determines conditions. In Vancouver's view, in this case, it would be impossible for the Commission to evaluate the impact of constructing transmission lines on the use of municipal rights-of-way by others when the Commission does not know what lines or other works might be constructed, where they might be constructed and when, over the course of the next 20 years, Shaw would construct them. According to Vancouver, the Commission has none of the evidence it needs to discharge its due regard obligation, nor could it, because the relief sought by Shaw is too general and wide-ranging.
31. Vancouver stated that since the completion of the legal proceeding arising out of Decision 2001-23, Vancouver staff has been conducting a comprehensive review of its current method of regulating access to its streets by all utilities. Vancouver stated that one of the options under consideration is the enactment of a comprehensive by-law regulating access to all of Vancouver's streets by all utilities.
32. Vancouver noted that Shaw has access to Vancouver's streets through its arrangement with Urban and it is through this interim MAA that Vancouver has continued to grant access to its streets to Shaw. Vancouver stated that the interim agreement expires 180 days after either party provides notice of termination, not at the end of the calendar year, as claimed by Shaw.
33. Shaw submitted that there is established Commission practice to determine terms and conditions that are to be incorporated in broad access agreements. Citing the Federal Court of Appeal's decision in Federation of Canadian Municipalities , Shaw submitted that the Act clearly provides the Commission full discretion to determine the terms and conditions associated with the grant of permission to construct under subsection 43(4). Shaw argued that although the conditions of access will be determined in the context of specific construction requests and related access, the terms and conditions are properly included in a MAA that provides a framework for resolution of both the specific requests and similar requests that will arise in the normal course of network maintenance, expansion and service delivery.
34. Shaw argued that there is no qualification on the discretion of the Commission to determine conditions, apart from the requirement to have due regard to other uses. Shaw was of the view that the Commission's broad discretion is supported by the context provided by other provisions, such as section 42.
35. Shaw submitted that subsection 43(4) neither explicitly nor implicitly requires the Commission to specifically assess each and every actual or potential other use and enjoyment of a particular property, prior to granting permission to construct. Shaw submitted that, instead, the subsection requires that the Commission have due regard to other use and enjoyment in the course of granting the relevant permission and in determining applicable conditions. Shaw also submitted that the impact of particular construction requests on use and enjoyment is sufficiently addressed by the engineering approval and permit grant processes that are always used by Vancouver and are reflected in Vancouver 's interim MAAs.
36. Shaw submitted that Vancouver offers no authority for the argument that the Commission's powers under subsection 43(4) are limited to resolving specific disputes to specific streets for specific installations. Shaw argued that limiting applications and Commission intervention to individual construction consent requests would result in a proliferation of disputes and applications to the Commission. Shaw was of the view that this situation could not be consistent with the policy objectives of the Act, including the orderly development of telecommunications throughout Canada and enhancing the efficiency and competitiveness of telecommunications. Shaw submitted that, as a matter of policy, requiring access disputes to be resolved on an individual basis would also subject carriers and distribution undertakings to the exercise of undue leverage and control by Vancouver and would provide no commercial certainty.
37. Shaw reiterated that it requires an MAA of longer duration, such as 20 years, for network planning, budgeting and other business purposes. Shaw claimed that any MAA of shorter duration would mean that parties would be operating under an agreement for only a short duration before it would be necessary to begin negotiations on a new agreement. Shaw was of the view that the record demonstrates that it can take a significant period of time to negotiate an MAA.
38. Shaw stated that when planning facilities for a new community development such as a residential subdivision it uses planning periods of 10 to 25 years to anticipate growth in its subscriber base and to construct the facilities required to meet the anticipated growth. Shaw added that the actual planning period used tends to match the municipally-approved subdivision plan. Shaw stated that it uses a 25-year planning period in other Vancouver area projects, including projects involving University of British Columbia and Simon Fraser University lands. Shaw submitted, in addition, that it uses a 10 to 15-year amortization period for its transmission plant. Shaw submitted that 10 to 15 years is a commonly used period for the depreciation of telecommunications transmission plant, and so provides a practical guideline for the appropriate duration of an access agreement relevant to the construction of new transmission lines.
Other terms and conditions
39. Shaw requested that the Commission grant access on terms and conditions, including those noted above, consistent with the Ledcor principles.
40. Shaw claimed that Vancouver has refused to include dispute resolution terms that allow for relevant disputes to be referred to the Commission.
41. Shaw also requested confirmation that the terms and conditions, including fees and charges, determined by the Commission are to be the only terms to apply to Shaw's access to Vancouver municipal property.
42. Shaw requested that, on expiry of an MAA and specifically where the parties are unable to agree on new terms and conditions, Vancouver should be ordered not to interfere with the ongoing operation of Shaw's network or facilities to the detriment of Shaw's customers, such as by requiring Shaw to remove its facilities or giving Vancouver the right to remove equipment or facilities if not removed by Shaw.
43. Shaw requested that the Commission retroactively apply the terms and conditions determined by the Commission to 1 November 2000 .
44. Vancouver stated that Decision 2001-23 related specifically to an issue of access to 18 street crossings. In addition, Vancouver stated that there were no binding principles arising from Decision 2001-23 that would apply in the Shaw application.
45. With respect to dispute resolution, Vancouver noted that it removed the provision that its Director of Finance was the final judge of overhead costs for which Vancouver should be reimbursed, and the arbitration clause was changed to provide that the decision of the arbitrator was not final allowing for both parties to take matters before the Commission.
46. Vancouver noted that it has moved on a number of terms including costs and insurance, within its proposed interim MAA. Vancouver stated that it has amended an insurance clause and revised its definition of costs to be limited to direct causal costs only.
47. With respect to Shaw's request for retroactivity, Vancouver submitted that subsection 43(4) does not give the Commission jurisdiction to make the retroactive order that Shaw seeks. Vancouver stated that the Supreme Court of Canada stated in Bell Canada v. Canada ( Canadian Radio-Television and Telecommunications Commission ),  that only interim orders of the Commission were subject to further, retrospective review. Vancouver stated that the Court noted that any power to revisit a previous final decision would have to be explicitly provided in the enabling statute.
48. Vancouver added, that in the Commission's letter dated 28 April 2000, Part VII application by Independent Cable Operators regarding access to support structure of Ontario Hydro Services Company Inc. and/or Ontario Hydro Networks Company Inc., the Commission stated:
49. Vancouver alleged that Shaw's reason for asking for a retroactive order relates to the lawsuit involving the Wirevision Agreement in front of the BCSC. Vancouver claimed that Shaw might try to use the retroactive order as a basis for defeating Vancouver 's contractual claim against Shaw. Vancouver also claimed that Shaw may be trying to rely on a retroactive order that includes a term referring all disputes to the Commission as a basis for challenging the jurisdiction of the BCSC with respect to Vancouver's lawsuit regarding the wirevision Agreement.
50. In response to Shaw's request that the Commission confirm that the conditions determined by it would be the only terms governing Shaw's access in Vancouver, Vancouver stated that other valid provincial and municipal legislation may apply to and could affect a carrier's access to municipal property. Vancouver submitted that subsection 43(4) does not confer on the Commission the jurisdiction to, and the Commission should not, make an order purporting to immunize Shaw from otherwise valid and constitutionally applicable legislation.
51. Shaw stated that while Vancouver's proposed interim MAA is silent on the issue of annual fees, Vancouver intended to impose retroactive annual fees once all legal proceedings related to Decision 2001-23 were complete. Notwithstanding the fact that the proceedings following Decision 2001-23 are now complete, Shaw stated that Vancouver had yet to identify the applicable fees and charges for access. Shaw requested that any fees and charges be set on the basis of the recovery of appropriate causal costs consistent with the cost recovery permitted by the Commission in Decision 2001-23.
52. Shaw stated that Vancouver 's interim MAA does not provide for or recognize the Commission as the final arbiter of access disputes. Shaw reiterated its position that it is seeking an order requiring that all disputes regarding terms of access be referred to the Commission.
53. On the topic of retroactivity, Shaw stated that it was seeking an effective date for the access terms and conditions that matches the period in which Shaw has operated the Vancouver distribution undertaking. Shaw claimed that it wanted to avoid the need for separate negotiations with Vancouver to determine the terms and conditions of access in the period from 1 November 2000 to the effective date of the Commission's order.
54. Shaw claimed that Vancouver 's use of Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission) in support of the argument that the Commission has no jurisdiction to make a retroactive order was incorrect. Shaw stated that what the Court was primarily considering was the power of an administrative tribunal to change rates charged in the past under an earlier decision. Shaw claimed that this issue, in turn, led to consideration of whether the Commission had the power to revisit rates set in an interim order.
55. Shaw submitted that Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission) does not stand for the proposition that an administrative tribunal can only exercise powers on a retroactive basis where that retroactivity is explicitly provided for in the enabling legislation. Shaw was of the view, instead, that the Court held that it is appropriate for an administrative tribunal to exercise powers on a retroactive basis either where that exercise of powers is explicitly provided, or where it is supportable as necessarily implied by or a necessary adjunct to the relevant powers.
56. Shaw stated that, in any event, Bell Canada v. Canada ( Canadian Radio-Television and Telecommunications Commission ) was distinguishable. Shaw was of the view that in the circumstances of this Application there was no previous decision of the Commission that would be affected by the grant of retroactive relief. Shaw was further of the view that there was also no question of a retroactive order interfering with the terms of any existing MAA between Shaw and Vancouver, as there is no existing MAA between Shaw and Vancouver.
57. Shaw submitted that in Federation of Canadian Municipalities, the Court accepted that the Commission has extensive powers and a wide discretion to fix terms and conditions of access. Shaw submitted that this scope of powers and wide discretion could be interpreted as including, in limited and appropriate circumstances, the determination of terms and conditions of access on a retroactive basis.
58. Shaw stated that there was no doubt that it would be open to the parties to conclude an access agreement with retroactive effect. Shaw submitted, for example, that Vancouver and Shaw could agree on terms of access that operate as if they had been in place since 1 November 2000 . Shaw further submitted that if the Commission, in exercising its powers and authority under subsection 43(4), is seen as the arbiter of commercial terms that the parties themselves might have concluded, but have been unable to agree, then it can also be anticipated that in appropriate circumstances the Commission might determine terms and conditions of access that would apply with a retroactive effect.
59. Shaw accepted Vancouver 's argument that the Commission should not make an order that immunizes Shaw from other legislation, so long as it is, in fact, valid and constitutionally applicable legislation. Shaw submitted, however, that Vancouver must not attempt to frustrate
Commission's analysis and guidelines
60. The Commission has consistently identified access to municipal rights-of-way as a barrier to entry and to local competition. In Decision 2003-82, the Commission noted the following:
61. In the same Decision, the Commission considered:
62. In Decision 2001-23, the Commission noted the following:
63. In Provision of telecommunications services to customers in multi-dwelling units , Telecom Decision CRTC 2003-45, 30 June 2003 , the Commission determined:
64. Section 7 of the Act provides that the objectives of Canadian telecommunications policy are, among other things, to render reliable and affordable telecommunications services accessible to Canadians throughout Canada , facilitate the orderly development of telecommunications throughout Canada , and enhance the efficiency and competitiveness of Canadian telecommunications.
65. The Commission notes that Vancouver has only offered permits to Shaw on the condition that Shaw signs Vancouver 's proposed interim MAA. This interim MAA provides for termination by either party, at any time, with 180 days notice. The Commission notes that Shaw has consistently objected to the interim MAA and its cancellation policy. The Commission also notes that Shaw uses an arrangement with Urban to place Shaw's facilities in the highways and other public places of Vancouver . The Commission notes that the Urban interim MAA with Vancouver has the same 180-day termination provision.
66. The Commission is of the view that carriers that can only secure interim MAAs are not only vulnerable because their access to a municipal right-of-way might be terminated by the municipality at any time with 180 days notice and not renegotiated, but also because the terms of such access may be changed upon negotiation of a new agreement to terms that are unacceptable to the carrier. The Commission notes that, if the terms of a proposed interim MAA are unacceptable, carriers may have to find alternate arrangements, which may also be unsatisfactory. The Commission considers that, regardless of whether or not it is ever exercised, the fact that the municipalities have the power to change the terms of access at short notice contributes to a carrier's commercial uncertainty.
67. The Commission considers that Shaw should be able to plan the orderly build out of its network with sufficient commercial certainty to recover its investment in its network. The Commission notes that the long-term planning of carriers necessarily takes into consideration depreciation of facilities. The Commission notes that Shaw uses a 10 to 15 year depreciation period for its transmission plant. The Commission also notes that Shaw uses planning periods ranging from 10 to 25 years.
68. The Commission considers that interim access agreements do not provide sufficient commercial certainty to allow Shaw to complete effective long-term planning. The Commission also considers that interim agreements may affect Shaw's ability to enter into long-term service agreements with customers.
69. In light of the above, the Commission considers it appropriate for Shaw to enter into a long-term access agreement with Vancouver . The Commission further considers that a 15-year term would be an appropriate timeframe for Shaw to effectively plan for, build out and recover its investment in its network.
70. The Commission notes that Shaw is seeking not only long-term access to municipal highways and other public places, but also city-wide access. The Commission notes that the interim MAA offered by Vancouver to Shaw is for site-specific alignments as contained within a schedule of the interim MAA.
71. The Commission considers that access arrangements which are limited to specific sites or sets of sites may be problematic for a carrier. The Commission considers that it is extremely difficult for a carrier to predict in advance which sites, areas, or quantities of transmission lines it might need in order to serve its existing and potential customers. For example, because of competitive pressures, Shaw may need to bid on an expedited basis for a contract to serve a large customer with branches or outlets throughout Vancouver . If it were to win the contract, Shaw may not know what its financial exposure would be until it negotiated a site-specific agreement with Vancouver , thereby making it difficult to prepare an accurate bid and determine its long-term business planning. The Commission considers that, in such an instance, Shaw would have minimal bargaining leverage with respect to Vancouver and may be forced to accept terms of access that are unacceptable to it in order to serve its customer.
72. The Commission is of the view, furthermore, that it is extremely difficult for a carrier to predict churn in its business plan. A carrier may predict that it requires access in one area, while, in fact, business eventually decreases in that area and increases in another area where it does not have access.
73. The Commission considers that continuously negotiating site-specific MAAs or submitting applications to the Commission to resolve disputes impairs the efficient and orderly development of Shaw's facilities to offer telecommunications services.
74. In light of the above, t he Commission considers it reasonable that Shaw have certainty of access to highways and other public places in Vancouver under an MAA of general application. The Commission notes that despite a general application MAA, Shaw would still be required to comply with Vancouver 's permitting process and by-law requirements to the extent that such process and requirements do not impose terms that are inconsistent with those of the MAA. It is through the permitting process that the parties can address site-specific issues not already dealt with by the MAA.
75. The Commission notes that Vancouver advised the Commission during the proceeding leading up to Decision 2001-23 of its intention to create a by-law to which all users of street space could refer. The Commission notes, however, that the Supreme Court upheld Decision 2001-23 on 4 September 2003 , and Vancouver 's review of municipal access still has not been completed, nor has a by-law been passed. The Commission considers that sufficient time has passed for Vancouver to be in a position to enter into a long-term, general application MAA with Shaw. In the Commission's opinion, therefore, it is desirable and reasonable to achieve commercial certainty with respect to Shaw's access to municipal rights-of-way in Vancouver as soon as possible.
76. The Commission notes that, if Shaw and Vancouver are able to negotiate access in accordance with the guidelines above, Vancouver could apply to the Commission under section 44 of the Act in the event of any dispute respecting a specific transmission line.
77. The Commission considers that Shaw and Vancouver may need to review their positions with respect to specific terms and conditions of access in light of the guidelines above. The Commission notes that while negotiations between Shaw and Vancouver over the terms and conditions of an MAA may have broken down at this time, the record suggests that Shaw and Vancouver may be close to agreement on a number of those terms, notably, the use of causal costing to determine fees, dispute resolution, insurance and restoration of service corridors.
78. The Commission notes that it intentionally did not prescribe terms and conditions in Decision 2001-23 for the future construction of transmission lines in Vancouver or elsewhere by any carrier. The Commission notes its statement in Decision 2001-23 that it was not persuaded that it was appropriate for it to adopt any particular model or standard agreement to serve as a starting point for discussions between municipalities and carriers. The Commission considers, however, that the Ledcor principles may assist Shaw and Vancouver in their negotiations.
79. The Commission recommends that Shaw and Vancouver resume negotiations regarding municipal access. The Commission considers that it would be reasonable for Shaw and Vancouver to negotiate conditions of access for a term of 15 years. The Commission also considers it reasonable that Shaw have certainty of access to highways and other public places in Vancouver under an MAA of general application. Despite such a general application MAA, Shaw would still be required to comply with Vancouver 's permitting process and by-law requirements to the extent that such process and requirements do not impose terms that are inconsistent with those of the MAA. It is through the permitting process that the parties can address site-specific issues not already dealt with by the MAA.
80. Shaw and Vancouver may use the Ledcor principles to assist in their negotiations of other specific conditions. If the parties are unable to reach agreement within 60 days of the date of this letter, either Shaw or Vancouver may notify the Commission of the status of negotiations, and the Commission will provide for a short process of answer and reply. At the completion of this process, the Commission will be prepared to consider granting permission, on an expedited basis, under subsection 43(4) of the Act, subject to any conditions that the Commission considers reasonable.
Stephen Rawson (Solicitor for Shaw)
 Federation of Canadian Municipalities v. AT&T Canada Corp. ( C.A. )  3 F.C. 379 ( Federation of Canadian Municipalities ).
 [ 2003] S.C.C.A. No. 97.
 Federation of Canadian Municipalities, supra , paragraph 28.
 Federation of Canadian Municipalities , supra, paragraph 21.
  1 S.C.R. 1722.
Date Modified: 2005-09-01
- Date modified: