ARCHIVED - Telecom Commission Letter Addressed to Brian Duxbury (Duxbury Law Professional Corporation) and Philippe Gauvin (Bell Canada)

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Ottawa, 2 June 2015

Our reference: 8690-C210-201409219


Mr. Brian Duxbury
Duxbury Law Professional Corporation
500 – 1 King Street West
Hamilton, Ontario, L8P 1A4

Mr. Philippe Gauvin
Bell Canada
Senior Counsel – Regulatory Law and Policy
Floor 19, 160 Elgin Street
Ottawa, Ontario, K2P 2C4

RE: Application made on behalf of the City of Hamilton (City) with respect to the establishment of a Municipal Access Agreement between the City and Bell Canada - Interrogatories

In the above referenced application, the City of Hamilton (City) filed, as Appendix “E”, a copy of the City’s proposed Municipal Access Agreement (proposed MAA).  This document has been the basis of past negotiations and exchanges between the City and Bell Canada and includes suggested changes and comments from both parties.

Commission staff further notes that starting at page 37 of its application, the City made submissions regarding the wording it is suggesting in the proposed MAA, as well as the reasoning behind such wording.  Commission staff considers, however, that additional information is required regarding the proposed MAA in order for the Commission to consider the City’s application. The City and Bell Canada are therefore required to provide comprehensive answers, including any supporting information, to the attached interrogatories.

Please note that the table included in the attached interrogatories consists of four columns.  The first column includes the wording to specific clauses of the proposed MAA.  The second and third columns include a summary of the City’s and Bell Canada’s positions, respectively, on these proposed clauses. Parties should consult the respective submissions to review complete comments for further information.  Finally, the fourth column includes the questions to be answered by the party identified in that column.

Pursuant to subsection 37(2) of the Telecommunications Act (the Act), the Commission may require a person other than a Canadian carrier that is in possession of information that the Commission considers necessary for the administration of the Act, to submit the information to the Commission.

As set out in Broadcasting and Telecom Information Bulletin 2010-961- Procedures for filing confidential information and requesting its disclosure in Commission proceedings, parties may designate certain information as confidential. Parties must provide an abridged version of the document involved, accompanied by a note explaining how the information removed is confidential.

Responses to these interrogatories are to be filed with the Commission, and served on the other party, by 23 June 2015.

Written arguments from Bell Canada and the City may be filed with the Commission with respect to the responses to these interrogatories, serving copies to each other, by 3 July 2015.


Original signed by Suneil Kanjeekal for

Michel Murray
Director, Dispute Resolution & Regulatory Implementation
Telecommunications Sector

c.c.:  David Marshall, Duxbury Law Professional Corporation,
Danny Moreau, CRTC,

Attach. (1)


Our reference: 8690-C210-201409219

  Wording Proposed by City Summary of Position of City of Hamilton Summary of Position of Bell Canada Instructions
1 AND WHEREAS the Company wishes to construct, install and maintain its Equipment in, on under, over, either along or across (“Within”) highways, streets, road allowances, lanes, bridges or viaducts of the Municipality (singularly a “Highway” and collectively, the “Highways”). Words “or other public places” not incorporated as unique circumstances exist for other public lands owned by the City outside of the ROW (ex: Cemeteries). For such public lands outside of the ROW, a site specific agreement would be required. XX Bell Canada:
- Address Hamilton’s concern about public lands outside of the ROW, including how Bell Canada is proposing to address in the MAA the unique circumstances of public lands owned by the City outside of the ROW.
2 Defined Terms – “Normal Activities” means activities the Municipality undertakes on a regular basis to maintain, repair, enhance or otherwise manage the Highway and includes, but is not limited to: ditching, culvert installation and repair, forestry activity, re-alignment, grading, traffic signal installation and repair, water and sewer installation and repair, street light installation and repair, and other related municipal activities. Definition is to more specifically define the relationship between the City and Bell Canada and better assess the cost impacts and implications of Bell Canada’s activity in ROW as it affects the City’s normal operations in the ROW.

Definition develops idea of cost avoidance and not simply the recovery of causal costs from the carrier.

Definition also found at clauses 9(c) and 9(l) of the proposed MAA.
XX Bell Canada:
- Explain why XX
3 Defined Terms – “Work” means, but is not limited to, any installation, removal, construction, maintenance, repair, replacement, relocation, excavation, adjustment or other alteration of Equipment Within a Highway. This definition is intended to deal with broad spectrum of Bell Canada’s activities in the ROW, which not only includes active or new construction, but all of Bell Canada’s activities which could have cost impacts upon the City.

XX to activities in the ROW that are modified by, or are some form of construction.
XX is also contrary to the principles established by the Commission in the Ledcor MAA decision.
XX City:
- Provide supporting argument why the XX is contrary to the principles established by the Commission in Decision CRTC 2001-23

Bell Canada: 
-Address the City’s position that XX is contrary to the principles established by the Commission in Decision CRTC 2001-23.

-Comment on why the Commission could not XX
4 The Term – This Agreement shall be subject to approval by the Municipality Council and upon such approval shall be deemed effective on the Effective Date and shall, unless earlier terminated in accordance with this Agreement, expire three (3) years after the first day of the month in which the Agreement is deemed effective.  This Agreement shall automatically renew for up to two (2) consecutive renewal periods of five (5) years each unless either the Municipality or the Company gives written notice of its intention not to renew to the other party not less than six (6) months prior to the expiration of this Agreement or any renewal term thereof, following which all rights and privileges hereunder shall come to an end, save and except for the Company’s continued use of the Highways and the Company’s and Municipality’s applicable obligations pursuant to clauses 15, 16, 18-23, 25 and 26-36 of this Agreement. The 3-year term serves as a pilot project to measure and ensure that there is compliance by Bell Canada and a reduction in the cost impacts upon the City as a result of Bell Canada’s activities in the ROW. XX Bell Canada:
-Provide your opinions on XX

-Provide your opinions on XX
5 Section 7 - The Discretion to Require More Detailed Instruction Plans
Prior to commencing Work of any kind within a Highway, the Company shall obtain the prior written consent, not to be unreasonably withheld, for such Work from the Commissioner.  The Commissioner may establish additional terms and conditions under which the Work may be conducted within a Highway, including requiring the Company to submit detailed construction plans.
The current degree of detail and sophistication in Bell Canada’s design and construction drawings is insufficient to address the context of design and construction in the ROW.

This clause is to ensure that appropriate terms and conditions and the need for higher order construction plans can be obtained from Bell Canada where circumstances warrant. 
XX Bell Canada:
- Provide reasoning for XX

-Propose XX
6 Conditions of Work - Subsection 9(b)
The Company shall have present at all times a Company representative at each location of Work.
To ensure that Bell Canada is properly supervising and monitoring its various subcontractors in the ROW to deliver the work product that is intended by Bell Canada’s applications.  XX Bell Canada: 
- Provide reasoning XX
7 Conditions of Work - Subsection 9(c)
The Company shall not interfere with the Normal Activities of the Municipality.
To ensure that Bell Canada has timely, coordinated and coherent responses to the daily operations of the City in the ROW. 

This implements the objective and principles of cost neutrality and cost avoidance. 
XX City:
- Confirm whether the City agrees to include XX If not, explain why, addressing the wording of subsection 43(2) of the Telecommunications Act
8 Conditions of Work - Subsection 9(d)
The Municipality reserves the right to inspect any of the Company’s installations, at the Company’s cost, and to require the Company to arrange the timing and installations as to allow detailed inspection of the Company’s Work, at critical times, as mandated by the Municipality.
To ensure that Bell Canada is achieving compliance with the normal requirements of the City in its activities in the ROW.

The cost impacts of these inspections would be the responsibility of Bell Canada. 
XX Bell Canada: 
- Explain why XX
9 Conditions of Work - Subsections 9(e) and (f)
(e) The Municipality reserves the right to audit, uncover, expose or conduct follow-up monitoring of the Company’s Work as the Municipality deems reasonably necessary at the Company’s cost.

(f) The Municipality reserves the right to require the Company to provide appropriately qualified or professional certification of the Company’s Work, at the Company’s cost.
Intended to ensure that Bell Canada achieves a higher order of compliance in the City’s ROW, leaving the City with a reliable record in respect to works performed by Bell Canada or the location of those works. 

Since the City is developing a highly integrated mapping and information system, the need for Bell Canada to achieve a more complete and reliable record of its installations is required. 
XX Bell Canada:
- Justify XX
- How does XX

If the entirety of the costs for the City instigated audits and related inspection activities are to be borne by Bell Canada, what mechanisms are, or would be, in place to ensure that the recourse to such activities is not excessive and that any such activities is conducted in the most cost efficient manner?
10 Conditions of Work - Subsection 9(h)
If the Company breaks the paved surface of a Highway, it shall at its own expense [Staff’s emphasis] forthwith temporarily repair and restore the surface of the Highway to substantially the same condition it was in before such Work was undertaken by the Company in accordance, without limitation, with the Municipality’s Procedure for the Installation of Utilities on Road Allowances, as amended from time to time, and to the reasonable satisfaction of the Commissioner. 
City wants this clause to include the wording “at its own expense” as it believes that Bell Canada must assume the cost and expense of temporary repairs to the Highway which have been caused by Bell Canada’s activities in the ROW. XX Bell Canada:
- Provide reasoning for XX
- Is Bell Canada of the view XX
11 Conditions of Work - Subsection 9(k)
If the Municipality requires the Work to be stopped for any bona fide municipal purpose or cause relating to public health and safety, special events or any circumstances beyond its control or any reasonable reason [staff’s emphasis], the Company shall cease all such Work forthwith upon receipt of verbal notice from the Municipality, which notice shall include the reason for the Work stoppage.  Within two (2) business days of issuing a verbal stop work order under this subsection, the Commissioner will provide to the Company written reasons for such order and advise the Company as to when the stop work order may reasonably be lifted.  Upon the Municipality lifting the stop work order in writing to the Company, the Company may resume its Work under the existing approval.
City wants the ability to stop work of the carrier for a number of purposes. 

The City insists on the inclusion of “any reasonable reason” as it needs to maintain a broad language in order to ensure that it can address any emerging or urgent circumstances in the ROW. 
XX Bell Canada:
- Provide reasoning XX

-Confirm whether you agree to the City’s proposed XX If you don’t agree, indicate why not.

- Provide reasoning XX
12 Conditions of Work - Subsection 9(l)
The Company is responsible for all construction, excavation, installation, maintenance and removal of its Equipment including the cost of such Work. In this regard, the Company is responsible for any cost it incurs to support, maintain, protect or upgrade its equipment made necessary as a result of the normal activities of the Municipality.
To ensure that Bell Canada is responsible for a range of costs it incurs, including costs to support, maintain, protect or upgrade its equipment as a result of the normal activities of the City. 

The City must be able to deal with its infrastructure replacement and improvement and require that carriers be cognizant of, and deal with, upgrades and replacement of their own infrastructure in a timely and planned manner in conjunction with the City’s operations. 

This is not a relocation clause. 
XX Bell Canada: 
- Provide reasoning for XX
13 Conditions of Work - Subsection 9(o)
The Company shall ensure that all worksites have signage clearly identifying the Contractor working there on behalf of the Company and showing the name and phone number of the Company. 
To ensure that there is appropriate accountability and awareness of who is working in the ROW and to ensure that Bell Canada’s subcontractors are familiar with the City’s requirements.  XX Bell Canada:
- Indicate what Bell Canada is XX
14 Supply of Information – Section 12
The Company shall supply the Municipality a 3 year capital forecast and an annual operational level plan for resource planning and capital coordination purposes on an annual basis. 

Upon request of the Municipality at the time of municipal consent application, the Company shall provide to the Municipality, at its own expense and within two (2) months of completing the construction or installation of any of the Equipment, “as-constructed” record drawings in an electronic format compatible with the UCC’s utility plan registry.  

Upon request from the Company, and subject to any licensing restrictions relating to the release of information, any available licensing digital ortho-imagery and/or mapping shall be provided by the Municipality to the Company at the Company’s expense for the Company’s use as a base map on which to submit permits to the Municipality. 

The Company shall, at the request of the Commissioner to support the development and improve the accuracy of the utility plan register, provide to the Municipality, in a format satisfactory to the Municipality a listing or record of the location of Equipment installed, altered, relocated, or removed by it, or on its behalf in the Highways to the date of such request.
Sets out a number of provisions to ensure that more accurate and reliable information is obtained and maintained in order to manage the spectrum of installations and infrastructure in the ROW.

Since City presents to carriers a near-term and long-term capital forecasting program in order to enable them to plan their own installations and upgrades, the carrier should provide its own capital forecast and an annual operational plan in order to enable the City to better plan and coordinate the rolling out of its capital works program. 

With this information, the City wants to create a mapping system for the ROW that is accurate and reliable and reduces both City and carrier time in managing right of way issues.  In return, the City will provide its mapping to the Company in order to facilitate carrier design and planning and submission of applications to the City.

To enable the City to constantly upgrade and improve its information mapping system, the carrier must also provide its record and location of equipment installed. 
XX Bell Canada: 
- Taking into consideration the fact that the Model MAA developed by the CRTC Interconnection Steering Committee (CISC) is a non-binding resource document, XX

-  What length of time is covered by Bell Canada’s current capital forecasts?

- Would Bell Canada be amenable to including, in the MAA, an obligation for it to provide such forecasts to the City?  If not, provide all supporting justifications for Bell Canada’s position.

– The City indicated in its proposed MAA that is does not agree with XX MAA.

-Provide reasoning for objecting XX
15 Subparagraph 13(b)
The locates provided by the Company to the Municipality for pre-design shall contain sufficient design information and survey detail as required by the Commissioner.
Specificity in the design information, to the level of survey quality, is a standard that is now required to match the sophistication of the activity in the ROW. XX Bell Canada:
-  Explain the differences between XX

- Explain the reasons why Bell Canada XX

-Address Bell Canada’s view XX
16 Fees – Section 16 and 17
16. The Company shall pay to the Municipality upon execution of this Agreement and annually thereafter on the anniversary date of the execution of this Agreement, an annual fee in the amount of $20,000.00 plus applicable taxes, as compensation to the Municipality for its causal costs in the administration of this Agreement.

17. The Company shall pay to the Municipality all applicable amounts and costs incurred by the Municipality pursuant to the terms and conditions of this Agreement  including application fees, permit fees, including excavation or Road Occupancy Permit fees and charges, as charged by the Municipality in accordance with applicable Federal and Provincial law. 

The Municipality shall give notice to the Company through the UCC process with respect to any increase in such fees or the application thereof.
The City’s cost analysis demonstrates that annually it incurs costs in the range of $468,000.00. This is exclusive of work around costs which the City estimates to be in excess of $1 million annually.  The City submits that its proposed annual fee must be more reflective of the cost impacts that the City is incurring as a result of Bell Canada’s activity in the ROW. XX Bell Canada
-Address the City’s cost review analysis in appendix D of its application

-Justify the basis for XX

-Describe and justify how the City has arrived at the proposed annual fee of $20,000 for recovery of costs associated with the administration of the agreement.

-Address Bell Canada’s XX

-Address Bell Canada’s XX

-Provide your opinions XX
17 Section 18 – Lost Productivity Compensation
The Municipality shall invoice the Company for costs over and above the Municipality’s normal costs as a result of a Municipality’s requirement to work around, accommodate, design, coordinate meetings, assign field staff and otherwise manage the Municipality’s resources or the Company’s Contractors. These costs shall include the Municipality’s reasonable costs for:

a) traffic signage costs;
b) lost parking meter revenue (gross revenue loss);
c) workaround costs;
d) site-specific costs –  costs that result from specific on-site conditions for which the Municipality must make provisions, including design fees, hydrovac services, survey crews, mobilization charges, extra material, or differences in costs resulting in the need to provide different or additional construction materials or changes in contracted materials (asphalt on granular to asphalt on concrete) or changes in compaction methods.  In this regard, the Municipality shall provide to the Company a detailed invoice itemizing all additional costs and charges as made necessary by this section. 
This clause is a continuum of the concept of consideration of Bell Canada’s cost impacts on the City and the cost which the City incurs in order to work around, accommodate and otherwise manage the City’s resources and Bell Canada’s subcontractors.  XX Bell Canada:
-Provide reasoning for XX

18) In the proposed MAA filed as Appendix E of the City’s application, Bell Canada XX.  However, Commission Staff notes that Bell Canada XX.

  1. In light of the above, Bell Canada is to provide, XX;
  2. Bell Canada is to provide XX.

When answering these questions, Bell Canada should note that the Model MAA developed by the CRTC Interconnection Steering Committee (CISC) is a non-binding resource document.

19) With respect to the XX CRTC Decision 2001-23 (Ledcore), while XX Telecom Decision 2008-91 (Baie-Comeau).

Staff notes that more recently, in Telecom Regulatory Policy CRTC 2009-150 (Regulatory Policy 2009-150), the Commission determined the percentage of relocation cost to be borne by a municipality.

Bell Canada and the City are to provide comments as to why the sliding scale approach as described at clauses 74-81 of Regulatory Policy 2009-150, in terms of both percentage and number of years, should not, in their opinion, be applied in the present case.

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