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Letter
Ottawa, 14 December 2007
File Nos: 8740-T8-200717043
8661-S9-200510588
BY EMAIL
Rob Olenick
Regulatory Analyst
TBayTel
1046 Lithium Drive
Thunder Bay, Ontario
P7B 6G3
rob.olenick@tbaytel.com
Jean Brazeau
Vice President, Telecommunication Regulatory Affairs
Shaw Communications Inc.
Suite 900, 630 - 3rd Ave. SW
Calgary, Alberta
T2P 4L4
jean.brazeau@sjrb.ca
Dear Sirs:
Re: TBayTel Tariff Notice 138 - Partial System Offering (PSO) and Shaw Communications Inc. Part VII application related to TBayTel's PSO tariff
Introduction
- This letter constitutes the Commission's determinations with respect to two issues related to a tariff application by TBayTel and a Part VII application by Shaw Communications Inc. (Shaw).
- The Commission received an application by TBayTel under Tariff Notice 138 (TN 138), dated 28 November 2007 , in which TBayTel proposed to withdraw its Partial Cable Distribution System offering (PSO) service (TBayTel General Tariff section TB 1200, sub-section 2).
- The Commission had previously received a Part VII application by Shaw, dated 7 September 2005, concerning TBayTel's PSO service monthly tariff rate (Shaw's Part VII application).
- The Commission notes that it recently issued TBayTel and Shaw Communications Inc. - Implementation of local competition in Thunder Bay, Telecom Decision CRTC 2007-107, 16 November 2007 (Telecom Decision 2007-107), in which it addressed a number of issues in dispute between TBayTel and Shaw regarding a local network interconnection (LNI) arrangement. The Commission also notes that one of those issues dealt with the PSO service that TBayTel provides to Shaw.
- The Commission notes that in issuing Telecom Decision 2007-107, it set specific timelines that both Shaw and TBayTel had to follow related to, among other things, the filing of a signed Partial Systems Agreement (PSA). On 16 November 2007, the Commission filed Telecom Decision 2007-107 with the Federal Court, making it an order of that Court pursuant to subsection 63(1) of the Telecommunications Act (the Act).
- The Commission notes that in filing TN 138, TBayTel submitted a request to vary the timeline set out in Telecom Decision 2007-107 for filing a signed PSA with the Commission for approval (TBayTel's vary request).
- The Commission also notes that in its Part VII application, Shaw requested that the Commission make the monthly PSO rate interim while the Commission dealt with the Part VII application.
Process
- In order to deal with TBayTel's request to vary the timeline for filing a signed PSA, the Commission issued a letter, dated 5 December 2007, in which it initiated an accelerated comment and reply process for TBayTel and Shaw. At the same time, for procedural efficiency, the Commission included another question related to Shaw's Part VII application.
- In its 5 December 2007 letter, the Commission requested that TBayTel and Shaw provide comments and reply comments on the following two questions:
a) Should the Commission vary the 30-day requirement, set out in Telecom Decision 2007-107, pending the Commission's ruling on TN 138, for TBayTel and Shaw to enter into a PSA and file it with the Commission?
b) Should the Commission make interim the monthly rate for 30 metres of cable for TBayTel's Partial Cable Distribution System as set out in TBayTel's General Tariff section TB1200, sub-section 2?
Commission's analysis and determinations
A. Should the Commission vary Telecom Decision 2007-107?
10. The Commission notes Shaw's submission that while the 30-day deadline for filing a signed PSA could be met by both parties, it did not object to TBayTel's request to vary the requirement if the Commission believed it appropriate to do so. The Commission also notes that section 50 of the Act states the following:
The Commission may extend the period, whether fixed by regulation or otherwise, for doing anything required to be done in proceedings before it or under any of its decisions.
11. The Commission notes that its disposition of TBayTel's TN 138 will determine whether there is a future need for a PSA. As such, the Commission considers that it is appropriate to extend the deadline for filing the signed PSA pending its disposition of TBayTel's TN 138 application. Accordingly, pursuant to section 50 of the Act, the Commission extends the deadline for TBayTel and Shaw to file a signed PSA for the Commission's approval to 30 days after the Commission has made a ruling on TBayTel's TN 138 tariff application, unless the Commission provides otherwise in that ruling.
12. The Commission reminds parties that all other Commission determinations set out in Telecom Decision 2007-107 remain in effect. This includes the determination in paragraph 23 that, given the Commission's creation of a framework for the implementation of local competition, including local switched exchange services, the 1984 Memorandum of Agreement cannot be used to prevent Shaw from offering local switched exchange services over TBayTel's PSO facilities.
B. Should the Commission make the PSO rate interim?
13. The Commission notes that TBayTel opposed making the PSO rate interim because, in its opinion, Shaw had not presented evidence that it would sustain unrecoverable losses unless the PSO rate was made interim. The Commission also notes that Shaw filed its Part VII application regarding TBayTel's PSO rate over two years ago and, since then, mediation efforts by Commission staff with the two parties have been unsuccessful.
14. Since the recently filed TN 138 calls for the withdrawal of the PSO service, the Commission does not intend to dispose of Shaw's Part VII application until after it rules on TN 138. Therefore, the Commission considers that in the interest of fairness, it is appropriate to make the monthly PSO rate interim while the Commission considers TBayTel's TN 138 and pending a Commission determination of Shaw's Part VII application.
15. Accordingly, the Commission modifies TBayTel's PSO service monthly rate as set out in General Tariff section TB 1200, sub-section 2, from final to interim, effective the date of this Decision and pending the outcome of Shaw's Part VII application.
C. Other issues
16. The Commission notes that TBayTel was concerned that TN 138 and Shaw's Part VII application may have been combined into one file without TBayTel's opportunity to comment about whether that action was appropriate.
17. The Commission notes that TBayTel's TN 138 tariff application and Shaw's Part VII application will proceed separately from each other and with their own timelines. The Commission also notes that its 5 December 2007 letter implemented a comment and reply process regarding both files for procedural expediency. Similarly, the determination with respect to TBayTel's vary request and the determination on interim rates related to Shaw's Part VII application are released together in this letter for administrative convenience.
18. Since this Decision modifies the timeline set out in Telecom Decision 2007-107 with respect to the filing of a signed PSA, the Commission is registering this Decision, together with Telecom Decision 2007-107 as amended by this Decision, with the Federal Court pursuant to subsection 63(1) of the Act. This Decision, together with Telecom Decision 2007-107 as amended by this Decision, will then become an order of the Federal Court and will be enforceable in the same manner as orders of that Court. According to the Federal Court Rules , anyone who disobeys an order of the Court may be found guilty of contempt of court.
Sincerely,
'Original signed by John Keogh (for)'
Robert A. Morin
Secretary General
Date Modified: 2007-12-14
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