ARCHIVED -  Letter

Ottawa, 30 July 2013

Our Reference: 8622-S9-201310284

BY EMAIL

Mr. Jean Brazeau
Senior Vice President
Corporate and Regulatory Affairs
Shaw Communications Inc.
40 Elgin Street, Suite 1400
Ottawa, Ontario K1P 5K6
Regulatory@sjrb.ca

Mr. Ted Woodhead
Senior Vice-President
Federal Regulatory and Government Affairs
TELUS Communications Company
215 Slater Street, 8th Floor
Ottawa, Ontario K1P 0A6
regulatory.affairs@telus.com

Re: Application for an expedited hearing concerning the administration of the
TELUS Communications Company (TCC) support structure tariffs and a request for related orders

Dear Sirs:

1. Request for an expedited hearing

In accordance with paragraphs 31 and 32 of Broadcasting and Telecom Information Bulletin CRTC 2009-38 (Information Bulletin 2009-38), this letter is to advise that Shaw Communications Inc.’s (Shaw) request for an expedited hearing has been denied by the Commission.

Information Bulletin 2009-38 provides that disputes that involve one issue – or in exceptional cases, several closely related issues – not exclusively monetary in nature and that have the following characteristics will lend themselves to the Commission's expedited hearing process:

1. the dispute is bilateral or affects only a small number of parties;
2. the parties have been unable to resolve the dispute by alternative methods;
3. the dispute is relevant to the regulation and supervision of either the Canadian broadcasting or telecommunications system, primarily to matters of interpretation or application of an existing Commission decision, policy, or regulation; and
4. resolution of the dispute does not require a new policy or change to an existing policy.

The Commission considers that Shaw’s request does not meet all of the criteria set out in
Information Bulletin 2009-38, notably the first criterion. In the Commission’s view, the matters raised by Shaw’s application are of potential relevance to all the industry given the similarly worded support structure service tariffs of the various incumbent local exchange carriers (ILECs) and the fact that numerous carriers attach equipment to ILEC support structures. As such, the Commission considers that it would be beneficial to have input on the matters raised in Shaw’s application from a broader range of stakeholders, e.g., other carriers including ILECs.

In light of the above and subject to what follows, the Commission will consider Shaw’s application in accordance with the rules set out in Part I of the CRTC Rules of Practice and Procedure. As such, Shaw’s application will be posted on the Commission’s website as a Part 1 application following the issuance of this letter.

All ILECs, including large and small, are made party to this proceeding.

Parties are to provide comments within 20 days after the date on which Shaw’s application is posted on the Commission’s website, serving copies on all other parties. Any interested person may similarly file comments within 20 days after the date on which Shaw’s application is posted on the Commission’s website, serving copies on all other parties.

All parties may file reply comments within 5 days after the deadline for the filing of the comments, serving copies on all other parties.
2. TCC’s request for an interim order
In its 15 July 2013 response to Shaw’s request for an expedited hearing, TCC requested that the Commission direct Shaw to immediately file applications and associated documentation for all new WiFi attachments it intends to install on TCC’s supporting structures without prejudice to any final Commission determination in this proceeding.
In a letter dated 18 July 2013, Shaw stated that TCC’s request should be dismissed as TCC has not addressed the Commission’s test for granting interlocutory relief, namely the three-part test set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, as supplemented by RJR MacDonald Inc. v. Canada (Attorney-General) et al., [1994] 1 S.C.R. 311.
In a reply dated 19 July 2013, TCC submitted that it was not seeking interim or injunctive relief, but was rather seeking full and proper implementation of an existing regulatory framework.
The Commission notes that while TCC argued that its request is simply that Shaw be ordered to comply with the terms of the Tariff, the question as to whether the installation of Shaw’s WiFi attachments onto cable located on TCC strand requires the filing of applications with TCC, pursuant to the terms of TCC’s tariff and the associated Support Structure License Agreement existing between the two carriers, lies at the very core of the dispute which the Commission is asked to resolve.
In this context, the Commission considers TCC’s request is appropriately qualified as being interlocutory in nature. The Commission considers that TCC has failed to satisfy it that its request meets the applicable criteria for the issuance of an interlocutory order. Accordingly, the Commission denies TCC’s request. Notwithstanding this determination, the Commission expects Shaw to maintain a record of all WiFi installations on ILEC support structures pend-ing the outcome of the Part I application process noted above.

Sincerely,

Original signed by Helen McIntosh for

John Traversy
Secretary General

c.c. regulatory@bell.aliant.ca; bell.regulatory@bell.ca; iworkstation@mtsallstream.com; regulatoryaffairs@nwtel.ca; document.control@sasktel.sk.ca; reglementa@telebec.com; Regulatory.Matters@corp.eastlink.ca; brooke@brooktel.com; regulatory@brucetelecom.com; heather.bishop@cwct.ca; admin@cochranetel.ca; pallard@cooptel.qc.ca; jsalina@dryden.ca; jonathan.scott@execulink.com; regulatory@gosfieldtel.ca; a.schneider@hay.net; grubb@hurontel.on.ca; jpatry@telcourcelles.qc.ca; tellambton@tellambton.net; telvic@telvic.net; j-fmathieu@telupton.qc.ca; wagrier@1000island.net; rbanks@mornington.ca; pdowns@nexicomgroup.net; nfrontenac@kw.igs.net; steve@wtccommunications.ca; mjboivin@telebec.com; tracy.cant@ontera.ca; barry.stone@quadro.net; roxboro@ontarioeast.net; sophie.houde@sogetel.com; rob.olenick@tbaytel.com; telstep@telstep.net; gcordeau@maskatel.qc.ca; Paul.frappier@sogetel.com; carlo.dondero@wtccommunications.ca; regulatory@tcc.on.ca; tsullivan@wightman.ca

Date modified:

2013-07-30