ARCHIVED - Telecom Commission Letter Addressed to Various Parties Interested in the Part 1 Application - Request for Commission direction to utilize the Model Municipal Access Agreement as basis for negotiations – Carriers’ Request for Interim Relief

Ottawa, 16 March 2015

Our reference:  8690-T66-201501107

BY EMAIL

Distribution List

RE: Part 1 Application - Request for Commission direction to utilize the Model Municipal Access Agreement as basis for negotiations – Carriers’ Request for Interim Relief

On 2 February 2015, the Commission received an application from Bell Canada, MTS Inc. and Allstream Inc. (collectively MTS Allstream), Rogers Communications Partnership, Shaw Cablesystems G.P. (Shaw) and TELUS Communications Company (collectively, the Carriers), requesting, amongst other things, that the Commission order the City of Calgary (the City) to continue to provide access to its municipal rights-of-way (ROWs) pursuant to existing terms of access under current (or the most recent expired) agreements with the City, until a dispute between the parties concerning the terms of a new municipal access agreement is resolved.

By letter dated 26 February 2015, the Carriers requested that the Commission consider on an expedited basis issuing an order to the City to continue providing access to municipal ROWs pursuant to existing terms of access. The Carriers indicated that they had received a letter from the City, dated 4 February 2015, stating that the Carriers were to return a signed copy of the City’s new Municipal Consent and Access Agreement^{Footnote 1} (MCAA) by 6 March 2015 and following that date, in the event an executed MCAA was not in place, the City’s consent would be required for each and every application to access to the City’s municipal’s ROWs prior to the approval of an alignment or release of any permit.

The Carriers argued that they met the criteria set out in the RJR-MacDonald decision^{Footnote 2}of the Supreme Court of Canada for the granting of their requested interim relief.

By letter dated 2 March 2015, Commission staff requested that the City respond to the Carriers’ request for interim relief by 6 March 2015, and indicated that the Carriers could reply by 10 March 2015. The City was requested to clearly set out the procedures by which it intended to consider requests for access to municipal ROWs after 6 March 2015 and explain whether and how these procedures would ensure that continuity of service, including end-user access to 9-1-1, would not be jeopardized.

In its response, the City stated that upon receiving the Commission letter dated 2 March 2015, it had sent an email to each of the Carriers advising that the City would continue to process line assignment applications pursuant to the terms and conditions of the expired MCAAs until a determination is made by the Commission on the Carriers’ request for interim relief. The City further clarified the procedures it would follow to dispose of requests by the Carriers to access its ROWs, and submitted that the Carriers had not met the test for interim relief under the three part RJR MacDonald test.

With respect to the above-referenced procedures, the City committed to grant the Carriers access to and use of its ROWs pursuant to the terms and conditions of the expired MCAAs until such time as the Commission disposes of the Carriers’ application. This commitment would be subject to the condition that the Carriers bring themselves into compliance with the terms of the expired MCAAs – and, in particular, with the terms pertaining to the provision of “as built” drawings for facilities installations – with respect to installations completed during the course of 2014,^{Footnote 3} by no later than 30 April 2015 or within 60 days from the Commission’s decision with respect to the matter of interim relief, as the Commission considers appropriate.

Alternatively, the City proposed that if the Carriers were not in agreement with its above proposal or if they failed to satisfy the above-discussed condition, it would follow a process that would involve a review of every line assignment application by the Carrier for an assessment of risk, after which the Carrier would be required to meet certain requirements as stipulated by the City.

In their reply, the Carriers indicated that they were broadly supportive of the City’s proposed interim process to the extent that they would remain able to access the City’s ROWs under the terms of their most recently expired MCAA.

The Carriers stated that the issue of as-built drawings has been a point of discussion between the Carriers and the City for some time and was discussed during the negotiations of the proposed MCAA. They stated that as a consequence of these discussions, they addressed as-built drawings during a joint Carrier-City operational committee meeting held on 29 January 2015.

The Carriers stated that they were willing to work with the City in its goal to develop and maintain accurate records of Carrier infrastructure. They stated that they would each endeavour to provide such as-built drawings for 2014 line assignments when they reasonably could, pending further discussion of the matter with the City and verification of the list of projects provided by the City in unsent letters appended to its 6 March 2015 response.

The Carriers stated that if the City was willing to continue to provide access under the terms of each Carrier’s expired MCAA, subject to the Carriers making good faith efforts through joint discussions with the City to address concerns about “as built” drawings and unpaid invoices, they would not suffer any irreparable harm and the test for interim relief would not be met. They stated that, in such circumstances, their request for interim relief would be moot, or at the very least, premature.

Commission staff notes the Carriers’ expression of willingness to work with the City in order to further the City’s goal of developing and maintaining accurate records of carrier installed infrastructure in the City’s ROWs.

Commission staff understands that should the Carriers and the City arrive at an agreement with respect to such matters as format and filing procedures associated with “as built” drawings, the City would continue to process line assignment applications pursuant to the terms of the expired MCAAs, pending Commission resolution of the Carriers’ application.

With respect to the timeframes by which “as built” drawings for 2014 would be submitted, Commission staff notes that the City proposed that such drawings be provisioned by no later than 30 April 2015, or within 60 days from the Commission’s decision with respect to the matter of interim relief, as the Commission considers appropriate, and that Carriers on the other hand are willing to work with the City and would endeavour to provide the drawings for 2014 line assignments in a reasonable timeframe.

Accordingly, Commission staff requests that the Carriers and the City jointly discuss the specific matters related to the provision of “as built” drawings for installations completed during the course of 2014, including the timelines by which such drawings would be provided to the City, with the view to reaching an agreement as expeditiously as possible on these matters. Commission staff notes that it may be possible for the parties to use the joint Carrier-City operational committee as a forum to have these discussions. The parties are to report back to the Commission by 8 April 2015 on the progress of their discussions and whether agreement has been reached on the relevant matters.

In light of the foregoing, the Carriers’ request for interim relief is on hold.

Other Matter

In its 6 March 2015 response, the City took issue with the Carriers designating as confidential the MCAA proposed by the City (proposed MCAA), a copy of which was filed by the Carriers as part of their application. Commission staff notes that, in their 10 March 2015 reply, the Carriers have expressed that, in light of the position taken by the City, they do not object to this document being placed on the public record associated with their application.

In light of the above, the Carriers are to file a copy of Appendix 1 to their application for the public record, within 10 days from the date of this letter.

Sincerely,

Original signed by

Michel Murray
Director, Dispute Resolution & Regulatory Implementation
Telecommunications Sector
c.c.: Jesslyn Mullaney, CRTC, 819-953-5255, jesslyn.mullaney@crtc.gc.ca

Attach. Distribution List

Distribution List:

Bell Canada, bell.regulatory@bell.ca
MTS Allstream, iworkstation@mtsallstream.com
Rogers Communications, Pamela.dinsmore@rci.rogers.com
Shaw Communications Inc., regulatory@sjrb.ca
TELUS Communications Company, regulatory.affairs@telus.com
The City of Calgary, Maryanne.bendfeld@calgary.ca

Date modified:

2015-03-16