Telecom - Procedural Letter addressed to the Distribution List

Ottawa, 20 September 2022

Multiple References

BY EMAIL

Distribution List

RE:   Consideration of matters raised in TELUS Communications Inc. application requesting reclassification of small incumbent local exchange carriers within the next-generation 9-1-1 ecosystem and various procedural directions relating to a number of interrelated proceedings

With this letter, the Commission disposes of a procedural request filed by and on behalf of the Independent Telecommunications Providers Association (ITPA) and its member companies relating to an application from TELUS Communications Inc. (TELUS), dated 21 April 2022 (our file: 8633-T66-202201755). The Commission also provides procedural directions relating to a number of current proceedings associated with next-generation 9-1-1.

The TELUS application

Background

In Telecom Regulatory Policy 2017-182, ^Footnote1 the Commission adopted a regulatory framework in relation to the provision of next-generation 9-1-1 (NG9-1-1) access services. In that decision, the Commission determined that the NG9-1-1 networks would be operated by the incumbent local exchange carriers (ILECs) and that, for the purposes of that decision, the term ILEC included the both large and small ILECs (SILECs). Telecom Regulatory Policy 2017-182 also specified that a given ILEC could meet its obligations, in whole or in part, by relying on a third-party service provider. No SILEC has opted to build their own NG9-1-1 network. Rather, the provision and operation of NG9-1-1 networks in their incumbent operating territories was contracted out to large ILECs.

The ILECs were mandated, per Telecom Decision 2021-199, ^Footnote2 to file proposed retail and wholesale NG9-1-1 access services tariffs in November 2021. The NG9-1-1 tariff proposals and accompanying submissions revealed a large disparity between the large and small ILECs in terms of the proposed rates, which reflect differences in costs associated with providing NG9-1-1 services and in customer bases from which to recover those costs.

Interim tariff rates for the ITPA-member SILECs ^Footnote3 and for Tbaytel ^Footnote4 of $0.45 per month for retail and wholesale network access subscribers were approved by the Commission on 23 February 2022.

In large measure as a result of the disparities in the proposed rates and underlying costs, the Commission issued Telecom Notice of Consultation 2022-65 ^Footnote5 (TNC 2022-65) calling for comments on whether it would be appropriate to fund, in whole or in part, NG9-1-1 access services, by means of the National Contribution Fund.

On 21 April 2022, TELUS filed an application (TELUS’ application), styled as a Part 1 application for the purposes of the CRTC Rules of Practice and Procedure, in which it requested that the Commission reclassify SILECs as Originating Network Providers (“ONPs”) for the purposes of their role and responsibilities in the provision of NG9-1-1 in their respective service territories, instead of as NG9-1-1 service providers as determined in Telecom Regulatory Policy 2017-182.

On 5 May 2022, the ITPA filed a letter with the Commission requesting that the Commission summarily dismiss TELUS’ application, arguing that it amounted to a request to review and vary (R&V) a decision point in Telecom Regulatory Policy 2017-187 and that it would be inappropriate for the Commission to consider it given the length of time that had elapsed since the publication of that regulatory policy.

On 17 May 22, Commission staff issued a set of requests for information (RFIs), many of which were addressed to the SILECs and sought to better understand whether and what costs had already been incurred by the SILECs to give effect to Telecom Regulatory Policy 2017-182 and whether and how such any costs could be recovered in the event that the Commission were to grant TELUS’ request. This letter also invited the ITPA to file an intervention on the merits of the matters raised in TELUS’ application.

On 24 May 2022, the ITPA filed a request for a Commission ruling on its procedural request, submitting that TELUS’ application should be barred by way of issue estoppel. In response to this, Commission staff, via letter issued 30 May 2022, suspended the procedural deadlines associated with TELUS’ application and established a process to deal with the ITPA’s procedural request. In addition to submissions provided by TELUS and the ITPA, comments were also filed by Public Interest Advocacy Centre (PIAC) and Rogers Communications Inc.

Analysis and Determinations

While the ITPA framed its request around the doctrine of issue estoppel and PIAC, in its intervention, sought to sustain the ITPA’s request on the basis of the doctrine of abuse of process, no party to this proceeding argued as to whether and why the Commission should depart from its established approach to assess whether it should consider an application on its merits.

Subject to any applicable statutory limitations and the requirements of procedural fairness, the Commission is vested with great level of discretion in relation to the conduct of its proceedings. The Commission’s approach in this regard is to assess whether the impugned application should be viewed as a new application or as an application to R&V a previous determination. Where an application is found to be a new application, it is considered on its merits. Where, however, an application is found to be best characterized as one to R&V an established decision, the Commission requires that the applicant demonstrate a substantial doubt as to the correctness of the impugned decision. Furthermore, the Commission has further given form to its discretion by establishing a deadline for the filing of R&V applications, while ensuring that its discretion in this regard is not fettered (i.e. the Commission can extend the deadline if such would be in the public interest). Considerations which would be used to inform the discretionary application of issue estoppel or abuse of process may well be relevant to the question of whether it would be appropriate to extend the deadline for filing R&V applications.

As such, the Commission, in accordance with the criteria for distinguishing R&V applications from new applications outlined in Telecom Information Bulletin 2011-214, ^Footnote6 assessed whether TELUS’ application should be characterized as a new application or an R&V and, if an R&V, whether it would be appropriate to consider the application on its merits notwithstanding its timing. The Commission’s assessment in this regard is as follows:

1. With regard to whether the application raises an error of law, jurisdiction, or fact, the Commission considers the application does not raise an error of law or jurisdiction as it does not question the Commission’s ability to recognize SILECs as NG9-1-1 network operators and to impose on them commensurate obligations. It also does not raise an error in fact as the SILEC’s costs to provide NG9-1-1 services and resulting rates were not considered in Telecom Regulatory Policy 2017-182. The Commission considers that this factor argues in favour of characterizing TELUS’ application as a new application;
2. With regard to the extent to which the issues raised in the application were central to the original decision, the Commission is of the view that governance of and responsibility for the provision of NG9-1-1 networks were central matters addressed in Telecom Regulatory Policy 2017-182. The Commission, in that decision, determined that all ILECs (which included that subset of ILECs that are referred to as SILECs) would be tasked with that responsibility and subject to the Commission’s regulatory oversight. The Commission considers this factor argues in favour of characterizing TELUS’ application as an R&V;
3. With regard to the extent to which the facts or circumstances relied upon in the application were relied upon in the original decision, TELUS’ application questions the appropriateness of tasking SILECs with such responsibility on the basis of their proposed tariffed rates and the impact this could have on the industry and end users. The SILECs underlying costs and proposed tariffed rates were not considered in the proceeding leading to Telecom Regulatory Policy 2017-182. The Commission considers this factor argues in favour of characterizing TELUS’ application as a new application;
4. Taking into consideration the length of time since the original decision, 5 years have elapsed since the issuance of Telecom Regulatory Policy 2017-182 and the Commission’s decision that SILECs would be responsible for the provision of NG9-1-1 networks. The Commission considers this factor argues in favour of characterizing TELUS’ application as a new application; and
5. With regard to whether the decision resulting from the Commission’s consideration of TELUS’ application would supersede Telecom Regulatory Policy 2017-182 in a prospective manner as opposed to curing an error on a retrospective basis, the Commission considers that any resulting decision would be prospective in nature and, therefore, that this factor argues in favour of characterizing TELUS’ application as a new application.

Given the above, the Commission considers that, overall, TELUS’ application is best characterized as a new application. However, the Commission is of the view that the public interest argues in favour of considering TELUS’ application on its merits, regardless of whether it is characterized as a new application or an R&V. While there is undoubtedly a strong public interest in regulatory certainty and the finality of decisions reached, the Commission considers that in this case such interests must give way to countervailing considerations. TELUS’ application, as well as Telecom Notice of Consultation 2022-65, were motivated, in whole or in part, by concerns with regards to the cost effective delivery of NG9-1-1 access services and the affordability of these services by those making ultimate use of them, the end users. Such concerns, served to inform the Commission’s determinations in Telecom Regulatory Policy 2017-182 in which it set out its regulatory framework for NG9-1-1. 9-1-1 access services are of fundamental importance to the social fabric of Canada such that equitable and affordable access to these services is of the utmost importance.

That said, a decision to proceed with consideration of TELUS’ application on the merits does not render irrelevant the ITPA’s concerns with regards to the time, effort and expenses incurred by its members to meet their existing obligations. Considerations which inform the public interest in regulatory certainty and the finality of decisions reached remain relevant. These principles are informed by objectives of ensuring that persons can regulate their conduct and otherwise structure their affairs in light of matters previously determined without having to worry that their conduct will attract liability or otherwise lead to adverse consequences as a result of decisions being reconsidered. As noted above, subsequent to the reception of TELUS’ application, a series of RFIs were issued. The Commission notes that a great number of these were specifically meant to identify and quantify any efforts and monies either already expended or for which the SILECs would be liable for as a result of actions taken with a view to complying with established regulatory obligations. The answers received will help inform the Commission’s decision on the merits of TELUS’ application.

In light of the above, the Commission will proceed with consideration of the issues raised in TELUS’ application.  Relevant procedural steps and associated deadlines are set out below.

Interrelated files

In addition to the above-discussed TELUS application, the Commission is currently considering various additional files related to the NG9-1-1 network, determinations on which will have interrelated impacts on costs and/or rates associated with access to these networks. Given this, the Commission considers that it would be beneficial to the expeditious disposal of the issues at hand to (i) merge the records of these various proceedings, and (ii) provide parties with an opportunity to comment with respect to whether and how such a merging of the records might affect the submissions already made.

Revised Procedures

In light of the foregoing, the Commission hereby

1. Merges the records associated with
   1.   8633-T66-202201755 – Part 1 Application from TELUS Communications Inc. requesting that SILECs be classified as Originating Network Providers for NG9-1-1;
   2.   1011-NOC2022-0065 – Notice of Consultation 2022-65 – Call for comments – Funding next-generation 9-1-1 access services through the National Contribution Fund;
   3.   8663-J92-202101369 – Part 1 Application from the Independent Telecommunications Providers Association (ITPA) regarding the development of retail and wholesale NG9-1-1 rates in the geographic areas covered by SILEC exchanges; and
   4.   The various NG9-1-1 tariff applications identified in Appendix 1 of this letter;
2. Directs the persons identified in Appendix 2 to this letter to provide answers to the relevant RFIs by no later than 30 September 2022;
3. Provides the ITPA, its member companies and interested persons with an opportunity to respond to the matters raised in TELUS’ application by no later than 14 October 2022; ^Footnote7
4. Provides parties to the various proceedings being merged an opportunity to amend any of their submissions as a result of the merging of records, by 14 October 2022. Submissions in this regard are to be restricted to commenting on the impact on their existing submissions brought about by the merging of records. In doing so, parties are to file their amended comments using file number 8633-T66-202201755 but reference within their comments the file number associated with their original submissions;
5. Provides TELUS with an opportunity to respond to any submissions made in direct response to the matters raised in its application by 28 October 2022.

A copy of this letter and all related correspondence will be added to the public record of the related proceedings.

Original signed by

Claude Doucet
Secretary General

c.c.:     Michel Murray, CRTC, michel.murray@crtc.gc.ca, 819-639-9790;
Chris Noonan, CRTC, chris.noonan@crtc.gc.ca, 873-354-0359;
Stais Armstrong, CRTC, stais.armstrong@crtc.gc.ca, 819-862-5720;
Étienne Robelin, CRTC, etienne.robelin@crtc.gc.ca, 873-354-4325;
Daniel Cardozo, CRTC, daniel.cardoza@crtc.gc.ca, 819-862-5720;
B. Natraj (Nat Natraj), CRTC, nat.natraj@crtc.gc.ca, 819-953-5081

Distribution List

Parties to the TELUS Part 1 Application
Parties to NOC 2022-65
Parties to the ITPA Part 1 Application
Parties to NG9-1-1 Tariff Applications
SILECs
ILECs

Appendix 1 - List of tariff applications and associated file numbers

Appendix 2 – Requests for information

SILECs

Each SILEC is to file with the Commission responses to the following requests for information (RFIs):

1. At present, are there any PSAPs that are physically located in your incumbent serving territory? If yes, identify such PSAPs and whether they are primary PSAPs (P-PSAPs) or secondary PSAPs (S-PSAPs).
2. For each PSAP identified in your response to question 1 above, specify whether the transmission facilities connecting with that PSAP for the purpose of 9-1-1 and non-9-1-1 (i.e. administrative/non-emergency traffic) communications are owned by yourself or a large ILEC.
3. For each PSAP identified in your response to question 1 above, specify whether you have any agreements in place. In the event that SILECs are reclassified as ONPs for the purpose of NG9-1-1 implementation, what will be the impact on these agreements?
4. In TRP 2017-182, the Commission determined that ILECs can meet their NG9-1-1 obligations directly, by building their own NG9-1-1 networks, or indirectly, by outsourcing to another ILEC. In the event that you have outsourced your NG9-1-1 obligations to another ILEC, provide the name of the ILEC and the duration of any agreement currently in place.
5. Refer to the tabs “Table 3 Cross Connects Circuits” and “Table 4 Hardware, Equipment” in each of the respective ITPA Member SILEC’s file, "Réponse-Response - ITPA – 18 February 2022 – [SILEC Name and TN Number ^Footnote8 ] NG911_Costing_Model_with_CostSummary_NPV_07Feb2022_ABRIDGED”.
   1.  Explain how the NG9-1-1 calls originating within your territory flow to the NG9-1-1 network, for:
      1. wireline calls made by your own customers;
      2. wireline calls made by the customers of other wireline providers operating within your territory;
      3. wireless calls made by your own customers; and
      4. wireless calls made by the customers of other wireless providers operating in your territory.
   2.  As part of the explanation provided in 5.a:
      1. Provide the NG9-1-1 call flow diagrams in which each of your intermediate POIs and NG9-1-1 network provider POIs are identified, clearly identifying where each of the cost components identified in each company’s respective Table 3 and Table 4 are incurred.
      2. State whether the wireless calls made by customers of other wireless providers operating in your territory are subject to a per-NAS charge, and if so, why.
   3.  The Commission, at Paragraph 85 in Telecom Regulatory Policy CRTC 2019-66 ^Footnote9, states that all telecommunications service providers are responsible for the costs to transit their NG9-1-1 traffic to the NG9-1-1 POIs. For each of the cost components identified in part 5.b, state whether such costs are related to transiting SILEC NG9-1-1 traffic to the NG9-1-1 POIs and if so, validate the inclusion of these costs.

Large ILECs

Each large ILEC is to file with the Commission responses to the following RFIs:

6. Identify all existing P- and S-PSAPs that are physically located in a SILEC incumbent operating territory. For each such PSAPs, specify whether it is directly connected to transmission facilities that you own.
7. In the event that you are required to provide NG9-1-1 connectivity to PSAPs outside of your incumbent serving territory, what would be the impact on your NG9-1-1 tariff, including rates, terms and conditions, and/or creation of new agreements?

SILECs and large ILECs

Each SILEC and large ILEC is to file with the Commission responses to the following RFIs:

8. To date, what costs have you incurred as a result of SILECs being classified as NG9-1-1 network providers in the NG9-1-1 framework that you would not have incurred had SILECs been classified as an ONP (i.e. not NG9-1-1 network providers)? Itemize and describe in detail each cost element that is responsive to this question. Furthermore, quantify all relevant costs and provide all relevant formulas, facts, and assumptions employed to determine these costs.
9. In the event that the Commission reclassifies some or all SILECs as ONPs, would you remain liable for certain expenditures as a result of NG9-1-1 outsourcing agreements in place (i.e. agreements between a SILEC and a large ILEC whereby the latter provides facilities and services to the SILEC in order for this last to meet its obligations as an NG9-1-1 network operator). Itemize and describe in detail each cost element that is responsive to this question. Furthermore, quantify all relevant costs and provide all relevant formulas, facts, and assumptions employed to determine these costs.
10. In the event that the Commission determines that some or all SILECs should no longer be classified as an NG9-1-1 network provider, what mechanism would be available to you to recover those costs identified in response to questions 8 and 9 above? Would the Commission have the authority to require that any relevant monies already paid be refunded and terminate any unrealized obligations arising from NG9-1-1 outsourcing agreements and, if yes, what is the statutory basis for such authority?
11. In the event that a) SILECs are reclassified as ONPs for the purpose of NG9-1-1 implementation and that b) SILECs had nevertheless incurred costs as a result of their exiting obligations and/or are liable for future expenditures, would it be reasonable and appropriate for the Commission to compensate SILECs for these costs by way of the National Contribution Fund?
12. In the event that SILECs are reclassified as ONPs for the purpose of NG9-1-1 implementation, would there be any impact on your company arising from a relevant NG9-1-1 outsourcing agreement that is not captured by your responses to the above questions? If yes, describe the impact.
13. At present, are there any P-PSAPs and/or S-PSAPs that do not serve any persons located within a large ILEC's incumbent operating territory? If yes, indicate where these PSAPs are located, if the persons served by these PSAPs are within the incumbent serving territory/ies of a SILEC, and if so, which SILEC(s)?
14. Should a P- or S-PSAP be physically located in a SILEC incumbent operating territory (including any PSAPs that may be established in the future), would the Commission have the statutory authority to require a given large ILEC to build and operate transmission facilities for the purposes of establishing connectivity with such a PSAP and, if yes, what is the statutory basis for such authority? In answering this question, account for situations where the relevant large ILEC does not operate as a competitive local exchange carrier in the territory where the PSAP would be physically located and where the relevant PSAP does not profess to provide service to persons located within the territory served by the large ILEC.
15. In the event that SILECs are reclassified as ONPs for the purpose of NG9-1-1 implementation, would the Commission be required to:
    1.  Issue interconnection orders in order for the SILECs to interconnect with a large ILEC for the purposes of NG9-1-1? Would similar orders need to be applied to other Local Exchange Carriers operating outside the large ILECs’ incumbent operating territory?
    2.  Amend the existing conditions of service imposed on ONPs and telecommunications service providers with regards to the delivery of their NG9-1-1 traffic?
    3.  Amend any terms and conditions in the large ILEC’s NG9-1-1 tariffs?

Provide all relevant details.

Provide your views on any additional impacts that would result from the reclassification of SILECs as ONPs for the purpose of NG91-1 implementation not captured by the RFIs above.

Date modified:

2022-09-20