ARCHIVED - Letter

Ottawa, 22 June 2009

Our file No:  8661-O40-200908949

Ms. Cindy Quigley

President

On Call Internet Services Ltd.

1158-8th Street

Kamloops, BC  V2B 2Y2

cindy@ocis.net

Mr. Terry Connolly

Director, Regulatory Affairs

TELUS Communications Company

215 Slater Street, Suite 800

Ottawa, ON  K1P 0A6

regulatory.complaints@telus.com

Dear Ms. Quigley and Mr. Connolly:

Re: Part VI and Part VII applications from On Call Internet Services Ltd. seeking relief with respect to services provided by TELUS Communications Company

In letters dated 9 March 2009 and 3 April 2009 the Commission received complaints filed under Part VI of the CRTC Telecommunications Rules of Procedure from On Call Internet Services Ltd. (On Call) seeking relief with respect to services provided by TELUS Communications Company (TCC or the Company).  On 9 June 2009, On Call filed a related Part VII application with the Commission.

In an email dated 2 April 2009, TCC submitted that as On Call and TCC were involved in arbitration proceedings, agreed to by both parties, and litigation, commenced by On Call, with respect to the matters raised by On Call, it would be inappropriate and inefficient for the Commission to become involved prior to the resolution of those issues by the Arbitrator and/or the Courts.

In a letter dated 1 May 2009, On Call alleged that its agreement to proceed by way of arbitration was vitiated by reasons of economic duress as well as misrepresentation.

In a letter dated 11 May 2009, TCC disputed On Call’s allegations.  In support of its position, TCC provided the Commission, in confidence, with a copy of the Interim Award delivered on

13 March 2009 by the appointed arbitrator, Murray Clemens, Q.C (the Interim Award).  TCC noted that the allegations raised by On Call had been raised before the arbitrator and that in his Interim Award, the arbitrator dismissed On Call’s allegations and found that he did have jurisdiction to resolve the outstanding issues existing between TCC and On Call.

In a letter dated 21 May 2009, On Call was of the view that TCC’s filing of the Interim Award was not in accordance with Rule 25 of the Domestic Commercial Arbitration Rules of Procedure of the Centre and requested that the Commission disregard the Interim Award.

The Interim Award

Commission staff notes that the Interim Award was submitted as part of a proceeding initiated by On Call in order to address allegations and submissions raised by On Call that placed the contents of that award at issue.  Accordingly, Commission staff considers without merit On Call’s request that the Interim Award be disregarded.

Threat of Disconnection

Commission staff notes On Call’s allegation that TCC has threatened to terminate services provided to On Call.  Commission staff also notes TCC’s assurance that it will continue to provide services to On Call for the time being.  As such, Commission staff is satisfied that there is no imminent threat of disconnection in the dispute.

Commission staff notes that TCC can only suspend or terminate the provision of tariffed services in the circumstances outlined in item 115.2 of TCC’s General Tariff CRTC 21461 (TCC’s General Tariff).  TCC is not permitted to suspend or terminate the provision of tariffed services in the circumstances outlined in item 115.4 of that tariff. Further provisions with respect to suspension and termination, including notice requirements, are set out in items 115.5 through 115.13 of that tariff. 

Refusal to Provide New and Additional Services

Commission staff notes that TCC acknowledges that it has refused to provide On Call with new regulated wholesale asymmetric digital subscriber line services unless certain monies, including deposits, are paid.

Commission staff notes that TCC’s General Tariff sets out, at item 103.1, the circumstances in which the Company is not obliged to provide a customer with tariffed services.

Other Relevant Tariff Provisions

Commission staff also notes that TCC can only require the payment of deposits in the circumstances provided at item 112.1 of its General Tariff and that the amount which the Company can require as a deposit is limited by the terms of item 112.2.

Commission staff also notes that item 112.3 of TCC’s General Tariff provides that the Company must tell the customer why a deposit is required and also inform the customer that there are alternatives to a deposit that would allow the customer to receive new and additional tariffed services.

Commission staff further notes that item 111.3 of TCC’s General Tariff provides that where a customer disputes a charge, the charge cannot be considered past due unless the Company has reasonable grounds for believing that the only reason for the dispute is to evade or delay payment.

Commission staff notes that to the extent there are any inconsistencies between TCC’s General Tariff and terms agreed to by the parties, the GT would apply with respect to tariffed services

On Call and TCC should attempt to Resolve their Dispute through Alternative Dispute Resolution Processes

Commission staff notes that in disputes where there is no imminent threat of disconnection, the Commission encourages parties to resolve outstanding issues between them prior to applying for Commission involvement.  See, e.g., Broadcasting and Telecom Information Bulletin 2009-38 where the Commission states that where it is not legally required to be involved, parties are encouraged to attempt to resolve their differences through private third-party mediation or arbitration, bilateral negotiations, or other means before applying for Commission dispute resolution processes.

In the Interim Award, the arbitrator ruled that he has the jurisdiction to hear the dispute between On Call and TCC and that the scope of the arbitration captures all issues connected to the economic relationship between the parties with respect to ordering and providing services, including the accounts between the parties, and related claims for payments or credits.

In the circumstances of this case, Commission staff considers that both On Call and TCC should make a concerted, good faith effort to resolve their dispute through alternative means, such as the ongoing third-party arbitration process.  Accordingly, the files related to this matter have been closed.

Commission staff notes that if, despite their best efforts, the parties are unable to resolve their outstanding issues, either party can approach the Commission and, among other things, request a dispute resolution process as defined in Broadcasting and Telecom Information Bulletin 2009-38, such as an expedited hearing.

Yours sincerely,

Paul Godin

Director General, Costing, Competition, & Tariffs

cc: Kevin Pickell, CRTC, kevin.pickell@crtc.gc.ca

Eric Bowles, CRTC, eric.bowles@crtc.gc.ca

Cheryl Grossi, CRTC, cheryl.grossi@crtc.gc.ca

Date modified:

2009-06-22