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Ottawa, 27 July 2010

Our reference:  8663-C12-201000653


To:  Distribution List

Re:  Obligation to serve and other matters, Telecom Notice of Consultation CRTC 2010-43: Further process regarding legal opinions

Dear Madam, Sir:

In Appendices 3 of the 26 April 2010 evidence submitted by Bell Canada and the Bell Aliant companies, a legal opinion prepared by Arnold & Porter LLP addresses the issue of whether the Commission has the authority to impose an obligation to serve or an obligation to build facilities.

On 20 July, the Public Interest Advocacy Centre (PIAC), as counsel for Canada Without Poverty, Option consommateurs and Rural Dignity of Canada, filed a legal opinion from Barbara A. Cherry, J.D., Ph.D. as part of their response to interrogatory PIAC(TELUS)20May10-3.  That legal opinion took issue with certain determinations reached in the Arnold & Porter LLP opinion with respect to the above-noted matters.

The Commission is seeking parties’ views, along with supporting rationale, on the legal arguments expressed by Arnold & Porter LLP, as well as those raised by Barbara A. Cherry, J.D., Ph.D., as they relate to the Commission’s statutory jurisdiction to:

a) mandate the provision of new services, including access to broadband services, where facilities exist or where new facilities would need to be built; and

b) require telecommunications service providers to contribute to a fund to support access to new services, including access to broadband services.

Parties’ views with respect to part a) above should also address whether the Commission has the jurisdiction to mandate the incumbent’s competitors, such as CLECs, to provide:           

i) new services, including broadband access services, where they currently have facilities or where new facilities would need to be built;

ii) services throughout the relevant incumbent’s serving territory, including existing services such as primary exchange service, if that incumbent were to leave the market and, if so, whether it would be appropriate to do so.

Parties’ views with respect to the above matters should include a discussion of the relevant implications flowing from the Governor in Council’s Policy Direction.

Parties providing views on the above matters are to file their submissions, serving copies on all interested parties, by 30 August 2010.

Yours sincerely,

Original signed by Philippe Kent

John Macri
Telecommunications Policy

c.c.:  Eric Bowles,

Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, P.C. 2006‑1534, 14 December 2006

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