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Providing Content in Canada's Official Languages

Please note that the Official Languages Act requires that government publications be available in both official languages.

In order to meet some of the requirements under this Act, the Commission's transcripts will therefore be bilingual as to their covers, the listing of CRTC members and staff attending the hearings, and the table of contents.

However, the aforementioned publication is the recorded verbatim transcript and, as such, is transcribed in either of the official languages, depending on the language spoken by the participant at the hearing.

 

 

 

 

 

 

 

              TRANSCRIPT OF PROCEEDINGS BEFORE

             THE CANADIAN RADIO‑TELEVISION AND

               TELECOMMUNICATIONS COMMISSION

 

 

 

 

             TRANSCRIPTION DES AUDIENCES DEVANT

              LE CONSEIL DE LA RADIODIFFUSION

           ET DES TÉLÉCOMMUNICATIONS CANADIENNES

 

 

                      SUBJECT / SUJET:

 

 

 

Review of regulatory framework for wholesale

services and definition of essential service /

Examen du cadre de réglementation concernant les services

de gros et la définition de service essentiel

 

 

 

 

 

 

 

 

 

 

 

 

 

HELD AT:                              TENUE À:

 

Conference Centre                     Centre de conférences

Outaouais Room                        Salle Outaouais

140 Promenade du Portage              140, Promenade du Portage

Gatineau, Quebec                      Gatineau (Québec)

 

November 9, 2007                      Le 9 novembre 2007

 


 

 

 

 

Transcripts

 

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

 

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

 

 

 

 

Transcription

 

Afin de rencontrer les exigences de la Loi sur les langues

officielles, les procès‑verbaux pour le Conseil seront

bilingues en ce qui a trait à la page couverture, la liste des

membres et du personnel du CRTC participant à l'audience

publique ainsi que la table des matières.

 

Toutefois, la publication susmentionnée est un compte rendu

textuel des délibérations et, en tant que tel, est enregistrée

et transcrite dans l'une ou l'autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l'audience publique.


               Canadian Radio‑television and

               Telecommunications Commission

 

            Conseil de la radiodiffusion et des

               télécommunications canadiennes

 

 

                 Transcript / Transcription

 

 

 

Review of regulatory framework for wholesale

services and definition of essential service /

Examen du cadre de réglementation concernant les services

de gros et la définition de service essentiel

 

 

 

 

BEFORE / DEVANT:

 

Konrad von Finckenstein           Chairperson / Président

Barbara Cram                      Commissioner / Conseillère

Andrée Noël                       Commissioner / Conseillère

Elizabeth Duncan                  Commissioner / Conseillère

Helen del Val                     Commissioner / Conseillère

 

 

 

 

ALSO PRESENT / AUSSI PRÉSENTS:

 

Marielle Giroux-Girard            Secretary / Secrétaire

Robert Martin                     Staff Team Leader /

Chef d'équipe du personnel

Peter McCallum                    Legal Counsel /

Amy Hanley                        Conseillers juridiques

 

 

 

 

HELD AT:                          TENUE À:

 

Conference Centre                 Centre de conférences

Outaouais Room                    Salle Outaouais

140 Promenade du Portage          140, Promenade du Portage

Gatineau, Quebec                  Gatineau (Québec)

 

November 9, 2007                  Le 9 novembre 2007

 


- iv -

 

           TABLE DES MATIÈRES / TABLE OF CONTENTS

 

 

                                                 PAGE / PARA

 

Argument by The Competition Bureau              2891 /17947

Argument by The Companies                       2921 /18090

Argument by Rogers                              2961 /18297

Argument by TELUS                               2992 /18452

Argument by MTS Allstream                       3024 /18594

Argument by Primus                              3057 /18743

Argument by Cybersurf                           3084 /18881

Argument by Yak Communications                  3106 /18982

Argument by Xittel                              3119 /19053

 

 


- v -

 

              EXHIBITS / PIÈCES JUSTIFICATIVES

 

 

No.                                              PAGE / PARA

 

BUREAU-8      Response to CRTC request in       3145 /19179

              Exhibit CRTC-4

 


- vi -

 

                      ERRATA / ADDENDA

 

 

 

 

The paragraph numbering for the soft and hard copies of the transcripts from the Essential Services hearing are incorrect, beginning with the 16 October transcript.  The paragraph numbers in the 16 October transcript should have been consecutive, following the 15 October transcript.

 

 

 

La numérotation des paragraphes de la version électronique et de la version papier des transcriptions de l'audience traitant des services essentiels n'est pas correcte, commençant avec la transcription du 16 octobre.  La numérotation des paragraphes dans la transcription du 16 octobre aurait dû être consécutive, après la transcription du 15 octobre.

 

 

 

 


                 Gatineau, Quebec / Gatineau (Québec)PRIVATE

‑‑‑ Upon resuming on Friday, November 9, 2007

    at 0844 / L'audience reprend le vendredi

    9 novembre 2007 à 0844

1LISTNUM 1 \l 1 \s 79417941            THE SECRETARY:  Please be seated.

1LISTNUM 1 \l 17942            THE CHAIRPERSON:  Good morning.

1LISTNUM 1 \l 17943            As you can see, it is a much‑reduced Commission.  My colleagues commissioners Cram and Noël, unfortunately, are no longer colleagues but we had the benefit of their advice before they left and we had extensive discussions.

1LISTNUM 1 \l 17944            I am looking forward to this morning's argument.  I guess the Competition Bureau is first.

1LISTNUM 1 \l 17945            MS PALUMBO:  That is right.

1LISTNUM 1 \l 17946            THE CHAIRPERSON:  Go ahead.

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 17947            MS PALUMBO:  Thank you.

1LISTNUM 1 \l 17948            Good morning, Mr. Chairman and commissioners Duncan and del Val.

1LISTNUM 1 \l 17949            Today, I will be representing the Competition Bureau, Josephine Palumbo with the Department of Justice.

1LISTNUM 1 \l 17950            I am joined by my colleague and the Bureau's outside counsel, Mr. Lorne Abugov.


1LISTNUM 1 \l 17951            The Bureau has a long history, Mr. Chairman, members of the Commission, of engaging itself in the debate on telecommunications regulatory reform, and as you are well aware, under section 125 of the Competition Act, the Commissioner of Competition can indeed make representations and call evidence before federal boards, commissions or tribunals in respect of competition.

1LISTNUM 1 \l 17952            The Bureau has used this ability of intervention in a number of industries but none more extensively than telecommunications, and indeed, since 1990, the Bureau has made more than 65 interventions before the Commission, including a full participation in the 2005 local forbearance proceeding.

1LISTNUM 1 \l 17953            Our participation in this proceeding, as in the many past proceedings, is as an amicus curiae, to offer our assistance and expertise to the Commission on issues of broader scope, unlike the immediate commercial concerns of the other parties to this proceeding.


1LISTNUM 1 \l 17954            The Bureau's sole motivation is to assist the Commission in facilitating the development of a regulatory framework for wholesale services that will promote effective and efficient competition in telecommunication markets for the benefit of Canadian consumers.

1LISTNUM 1 \l 17955            During the next 30 minutes we will canvass three main areas of interest in the final oral phase of this most important proceeding and I wish to outline those three main areas to you now.

1LISTNUM 1 \l 17956            First, we will review with you the Bureau's specific proposals regarding our suggested definition of essential facilities and the objectives that, in our view, must underlie the regulatory framework governing mandated access.

1LISTNUM 1 \l 17957            The second area that we will cover is how best to implement these objectives through the proper operationalization of the appropriate definition of an essential facility, an area over which there is still significant debate among the parties to this proceeding.

1LISTNUM 1 \l 17958            Several parties have downplayed the operational differences between their definitions and that proposed by the Bureau.  They argue that their proposals are also based on competition principles and will achieve competitive objectives.


1LISTNUM 1 \l 17959            With respect, we do not agree and in fact their definitions are often inconsistent with competition principles.  Consequently, they are much less likely to advance the general competition objectives that we all agree should be the cornerstone of an effective wholesale access regime.  In our second area of discussion we will explain why this is so.

1LISTNUM 1 \l 17960            Thirdly and lastly, we will address claims by some parties that their definitions are easier and more practical to apply than that of the Bureau.  You will see that they are not necessarily simpler to apply, and where they are, they achieve that simplicity at significant cost.

1LISTNUM 1 \l 17961            In contrast, The Bureau's definition is based on tested and objective standards that are employed by regulators and competition authorities the world over and we are confident that our proposal can be practically applied by this Commission.

1LISTNUM 1 \l 17962            I will turn now to the first main area that we will canvass with you this morning, The Bureau's definition of an essential facility and the objectives underlying that definition.


1LISTNUM 1 \l 17963            The Bureau's definition of "an essential facility" is indeed rooted in competition policy principles, which is to say it is focused directly on identifying market power where it exists and controlling the exercise or abuse of that market power.  That is the most appropriate way to ensure that competition is sufficient to protect the interest of consumers.

1LISTNUM 1 \l 17964            Mr. Chairman, Members of the Commission, you will recall that the Bureau initially proposed a definition for an essential facility that could be applied prospectively, that is when the Commission determines whether or not to mandate access to a facility.

1LISTNUM 1 \l 17965            And at your request, Mr. Chairman, during our panel's appearance at the hearing we undertook to provide a definition that could be applied retrospectively, that is when the Commission examines the list of services to which access is currently mandated, to determine whether or not that access should be withdrawn.

1LISTNUM 1 \l 17966            Our retrospective definition is as follows:

"A facility, a function or service can be considered to be essential and therefore mandatory access to that facility can be justified if the following three conditions are satisfied.


First, the firm controlling the facility in question is vertically integrated and dominant in two markets.

The first relevant market is the upstream market for wholesale market for the facility.

The second relevant market is the downstream market or retail market in which the facility is an input.

A necessary condition for concluding that there is dominance in the upstream market is that it is not practical or feasible for competitors to duplicate the facility in question.

Second, withdrawing mandated access to the facility is likely to result in competitors exiting from or contracting in the downstream market.


Finally, such exit or contraction is likely to result in a substantial lessening of competition in the downstream market."

1LISTNUM 1 \l 17967            The first condition of The Bureau's definition which requires a finding that the owner of the facility in a properly defined product and geographic market is dominant both upstream and downstream identifies where market power exists and where incumbents can exercise that market power to harm consumers.

1LISTNUM 1 \l 17968            This is a relevant consideration in both the upstream and downstream market.

1LISTNUM 1 \l 17969            Upstream, a firm may exercise its market power to the detriment of competitors and eventually consumers.

1LISTNUM 1 \l 17970            Downstream market power may be exercised directly to harm consumers.

1LISTNUM 1 \l 17971            The Bureau's two‑market test provides a useful screen for the Commission.  If a firm is not dominant downstream in a particular market, then consumers have alternatives that can control the market power inherent in a firm's upstream facility.  If a firm is not dominant upstream, competitors have similar alternatives to provide downstream services, again to the benefit of consumers.


1LISTNUM 1 \l 17972            In either case, Mr. Chairman, Members of the Commission, the facility in question should not be considered essential and the analysis is concluded.

1LISTNUM 1 \l 17973            Ignoring upstream and downstream market power when defining an essential facility is to focus more on the interests of individual competitors than on the effects of competition and ultimately consumers.

1LISTNUM 1 \l 17974            The only appropriate method to adopt and to pinpoint and assess market power comes from competition policy where market definition tools and market power analysis have been carefully refined through time and experience.

1LISTNUM 1 \l 17975            The Bureau's second condition is a simple question:  Without access to a given facility or service will competitors exit or contract from a given downstream market?

1LISTNUM 1 \l 17976            This concern seems to be the primary focus of the parties to this proceeding.  However, this condition alone does not, Mr. Chairman, answer the fundamental question:  What is the effect of mandating access on competition and ultimately consumers?


1LISTNUM 1 \l 17977            The Bureau's third condition which asks whether there is a substantial lessening of competition in a downstream market focuses on the effects on consumers, indeed where the focus should be, and asks whether the exit or contraction of individual competitors will result in higher prices, in lower quality or less innovation.

1LISTNUM 1 \l 17978            If the answer is no, then mandating access may in fact generate more costs then benefits by focusing on the costs and benefits to competition and hence consumers and not on individual competitors.  The Bureau's definition avoids either an under inclusive or an over inclusive wholesale access regime.

1LISTNUM 1 \l 17979            The fundamental issue in this proceeding is the proper role of mandated access in the development of efficient and effective competition which will ultimately prove most beneficial for consumers.

1LISTNUM 1 \l 17980            And when it comes to controlling the market power of the ILECs, two types of competition are possible, that created by mandating the access and that created by investment in competing facilities.

1LISTNUM 1 \l 17981            The Commission should strive, it is our respectful submission, to establish a wholesale regime that implements each when appropriate.


1LISTNUM 1 \l 17982            MR. ABUGOV:  Almost all parties to this proceeding endorse the development of a regulatory framework for wholesale services and a definition of an essential facility that will ultimately result in effective and efficient competition.  However, parties have very different notions of what constitutes effective and efficient competition.

1LISTNUM 1 \l 17983            The Bureau submits that consistent with competition principles effective and efficient competition is most likely to come from independent end‑to‑end facilities‑based providers that control their own networks.

1LISTNUM 1 \l 17984            Under The Bureau's definition, where competition of this kind is possible the right incentives are put in place for its development.  Where it is not possible, access would be mandated.

1LISTNUM 1 \l 17985            We have heard from experts at this hearing who agree strongly that competition at the network layer is preferable to competition at the applications layer alone, which is not likely to be effective in disciplining incumbent market power.

1LISTNUM 1 \l 17986            In the Bureau's view, settling on competition at the application layer would deter technological innovation in this country and ultimately prove detrimental to Canadian consumers.


1LISTNUM 1 \l 17987            We heard Dr. Church, one of the Bureau's expert witnesses, explain that two independent networks would allow for much more intense competition than only one network with sharing.  He explained that where there are two networks all of the possible parameters on which they can compete are available because they share nothing in common.

1LISTNUM 1 \l 17988            Dr. Church noted that this is particularly true in a broadband world with two broadband networks competing against one another.  In that context, it is likely that consumers at any given location are only going to subscribe to one of the two networks, creating a winner‑take‑all situation.

1LISTNUM 1 \l 17989            The result is very vigorous competition and more than ample incentives for investment and innovation in each network in response to the other network.

1LISTNUM 1 \l 17990            We also heard from Dr. Taylor, one of The Companies expert witnesses, that true competition takes place in the portions of the network that are unshared.  Dr. Taylor acknowledged that there may still be competition at the applications layer where providers are sharing the network and reselling services, in that resellers can offer value‑added features, compete on customer service and provide different bundles.


1LISTNUM 1 \l 17991            He noted, however, that resell competition will not produce fundamental changes or enhancements in technology or in the network.  In his view, resell competition could not compare in that regard to the competition that we see between the two near end‑to‑end networks today in Canada, the cable network and the telephone network.  From those networks, he remarked, we see high‑end and high‑speed services, internet services, many new broadband services and video services.

1LISTNUM 1 \l 17992            The key point is that competition from competing networks is much better for consumers than competition only at the applications layer on a common network.

1LISTNUM 1 \l 17993            To the extent that effective competition between networks is possible, it should not be inadvertently precluded by an overly permissive access regime.

1LISTNUM 1 \l 17994            This would be especially disappointing in the Canadian context, given that, as we heard from another of The Companies expert witnesses, Dr. Waters, the fact that we in Canada have a second network in residential markets is envied the world over.  As he put it, and I quote:


"The rest of us are using a ladder of investment to climb to where you are, so I must admit it's a little strange when I come here and I see one of the world's most complete ladders of investment in a market that actually already is where the rest of us are struggling to get to."  (As read)

1LISTNUM 1 \l 17995            It has been The Bureau's position throughout this proceeding that the goal of any wholesale access regime must be the development of efficient and effective competition, that is competition between networks.

1LISTNUM 1 \l 17996            In The Bureau's view, the policy direction clearly recognizes that goal.  It directs the Commission to undertake the instant review:

"... with a view to increasing incentives for innovation and investment in and construction of competing telecommunications network facilities".  (As read)

1LISTNUM 1 \l 17997            The Bureau's definition of an essential facility is designed to do just that.  It is intended to ensure that the proper incentives for network investment are in place.


1LISTNUM 1 \l 17998            If these incentives for network investment are not embodied in the core of the wholesale access regime, and indeed if the regime instead disincents investment by mandating access to an overly broad set of facilities, the Commission will have adopted, and thereby accepted, an inferior form of competition and one that, in The Bureau's view, is far less effective.

1LISTNUM 1 \l 17999            In the Bureau's view, the objectives of efficient and effective competition, that is end‑to‑end facilities‑based competition where possible, can only be achieved through a definition of an essential facility that is firmly rooted in competition principles.

1LISTNUM 1 \l 18000            Although most parties to this proceeding claim that their definitions reflect competition principles, when viewed operationally they do not.  These operational issues are the second main area that we will discuss with you this morning.


1LISTNUM 1 \l 18001            The operational differences between the Bureau's definition and those of other parties must be understood and assessed carefully by the Commission since while other parties' proposals appear at first blush to involve less effort to apply, they do so at the cost of significant mis‑classification of facilities.  These mis‑classifications result in either uncontrolled market power in many markets or the discouragement of effective and efficient competition between competing networks.

1LISTNUM 1 \l 18002            THE CHAIRPERSON:  Mr. Abugov, do you mind if I interrupt you here before we go to the operational and just ask you a couple of questions on the theoretical?

1LISTNUM 1 \l 18003            MR. ABUGOV:  Mr. Chairman, I can't guarantee that we can provide you with an answer, but we will certainly undertake to provide you with one in writing.

1LISTNUM 1 \l 18004            THE CHAIRPERSON:  Just so that I understand, you used or Mrs. Palumbo used the words "near end‑to‑end facilities competition".

1LISTNUM 1 \l 18005            What, in your view, is near end‑to‑end?

1LISTNUM 1 \l 18006            MR. ABUGOV:  Mr. Chairman, I believe I made the remark in the sense that the end‑to‑end facilities‑based providers definition includes both owning one's own facilities and sharing facilities to a given extent.  And the word "near" simply indicates that the existing networks are not ubiquitous at this time.

1LISTNUM 1 \l 18007            THE CHAIRPERSON:  So there is no idea of preponderance on majority facility owned or something like that inherent in that expression.


1LISTNUM 1 \l 18008            MR. ABUGOV:  That's correct.

1LISTNUM 1 \l 18009            THE CHAIRPERSON:  On the first part where you insist on a dominance in the downstream market, why do you need to have that since you are starting off with the assumption that there is dominance in the upstream market and access to that upstream market is necessary in order to compete in the downstream market?

1LISTNUM 1 \l 18010            I just don't understand.  Does your definition work if we do not require dominance in the downstream market?

1LISTNUM 1 \l 18011            MS PALUMBO:  Our test has always proposed dominance in both markets, and our experts have explained that our test, our definition presented before this Commission, requires dominance in both markets.

1LISTNUM 1 \l 18012            THE CHAIRPERSON:  So your answer is no.

1LISTNUM 1 \l 18013            MS PALUMBO:  No.

1LISTNUM 1 \l 18014            THE CHAIRPERSON:  Would your test also work if I don't delete the requirement of dominance in the downstream market?


1LISTNUM 1 \l 18015            Looking at your test and applying it, it seems to me the outcome would be the same regardless of whether there is a requirement for dominance in the downstream market or not.

1LISTNUM 1 \l 18016            If I have misunderstood it, please explain it to me.

1LISTNUM 1 \l 18017            MS PALUMBO:  Our position has been that dominance needs to be in both markets.  However, what the Bureau can do is take an undertaking and we can respond to this issue that you have raised, Mr. Chairman, in our formal written arguments.

1LISTNUM 1 \l 18018            THE CHAIRPERSON:  Okay, thank you.

1LISTNUM 1 \l 18019            Sorry, Mr. Abugov.  Please go ahead.

1LISTNUM 1 \l 18020            MR. ABUGOV:  Are we back on the clock, Mr. Chairman?

1LISTNUM 1 \l 18021            THE CHAIRPERSON:  This doesn't count on your clock.  Don't worry.

1LISTNUM 1 \l 18022            MR. ABUGOV:  Just checking.

‑‑‑ Laughter / Rires

1LISTNUM 1 \l 18023            MR. ABUGOV:  So I had said that the misclassifications that can arise through the proposals put forward by other parties, which appear at first blush to involve less effort to apply, can result in either uncontrolled market power in many markets or the discouragement of efficient and effective competition between the two operating networks.


1LISTNUM 1 \l 18024            For example, Mr. Chairman and Commissioners, TELUS' definition requires 100 per cent monopoly control in the relevant upstream market as opposed to the Bureau's requirement for dominance.

1LISTNUM 1 \l 18025            The TELUS definition would not find a facility essential if there is any competing supply in the upstream market.  Conversely, the Bureau's definition might classify that same facility as essential if to do so would result in a substantial increase in competition sufficient to make consumers better off in the long run.

1LISTNUM 1 \l 18026            TELUS' approach does not recognize that it may well be more beneficial to consumers for the Commission to control the market power of the ILEC by mandating wholesale access than by relying on entry that has very little competitive effect.

1LISTNUM 1 \l 18027            MTS Allstream, on the other hand, has neither a competitive effects test nor a requirement for dominance downstream.  As a result, the definition proposed by MTS is too expansive.  It would mandate access to facilities with the resulting costs even if there is competition downstream from facilities‑based carriers and even if mandated access does not have a substantial effect on competition in the downstream market.


1LISTNUM 1 \l 18028            In addition, several parties claim that proper geographical market definition is an unnecessary burden in assessing whether or not a facility is essential.

1LISTNUM 1 \l 18029            For example, TELUS' definition assesses upstream monopoly in terms of potential and not actual duplication.  Key to the TELUS definition is the notion that if a facility or a functionality of that facility has been duplicated in some similar geographic area ‑‑ TELUS suggests rate bands, for instance ‑‑ then it must be feasible to duplicate it in every similar geographic area, regardless of whether or not it has in fact been duplicated.

1LISTNUM 1 \l 18030            In such case, according to TELUS, the facility should be considered non‑essential.

1LISTNUM 1 \l 18031            While the Bureau would agree that a proxy approach to geographic markets is practical for the Commission to adopt over time, the Bureau questions whether there is truly enough geographical homogeneity within rate bands to make such a test meaningful.

1LISTNUM 1 \l 18032            Despite claims to the contrary, the TELUS criteria run the very real risk of abandoning certain exchanges and locations and consumers where duplication may in fact not be possible and where forbearance, particularly in business markets, may have been granted based on competitor access to facilities.


1LISTNUM 1 \l 18033            In this case, the potential benefits of competition from mandated access may dramatically outweigh the potential costs of that access.

1LISTNUM 1 \l 18034            The Bureau's definition seeks to identify these particular markets by using the principles of competition policy to identify relevant markets rather than forcing Canadian consumers to fend for themselves in the face of incumbent market power.

1LISTNUM 1 \l 18035            Certain parties to this proceeding, such as MTS Allstream and Rogers, have argued that where the Commission has forborne from retail regulation based on competitor access to leased facilities, it necessarily follows that those facilities must be found to be essential.

1LISTNUM 1 \l 18036            This logic, while simple and seductive, is ultimately incorrect.

1LISTNUM 1 \l 18037            Wholesale regulation is not an equivalent substitute for retail regulation.  Contorting the wholesale access regime by broadening its scope to fit the retail forbearance regime may have the cost of precluding the entry of true end‑to‑end facilities‑based competition most notably in business markets.


1LISTNUM 1 \l 18038            The Bureau's definition of an essential facility does not run this risk.  It will hold regardless of whether or not there is regulation at the retail level.

1LISTNUM 1 \l 18039            It is important, therefore, that the Commission use the proper definition of essential facility, which we submit is the Bureau's definition in the first instance, to enable or to increase competition in downstream markets where the benefits of that competition outweigh the potential costs of mandating access.

1LISTNUM 1 \l 18040            If at the end of a transition period with a hard stop facilities which have been properly declared to be non‑essential have not been replaced and market power issues have arisen downstream, the Commission should at that point address those issues directly by revisiting whether retail regulation is necessary.  Widening the wholesale access regime inappropriately is not an efficient alternative.

1LISTNUM 1 \l 18041            MS PALUMBO:  Finally, many of the parties' definitions fail to recognize that the Commission's ultimate concern in this proceeding must be the control of market power.

1LISTNUM 1 \l 18042            Allowing the exercise of market power harms consumers through higher prices, lower quality of service and fewer incentives for firms to offer new and better services.


1LISTNUM 1 \l 18043            In developing an effective wholesale access regime, the Commission's primary focus should be to streamline access where competition is sufficient to control the exercise of market power, most residential markets, for example, and to continue to mandate access where it is not, which may be the case in some business markets.

1LISTNUM 1 \l 18044            Many parties have failed to acknowledge this fundamental point, primarily because it is not in their commercial interest to do so.  Rogers' definition, for example, concludes that unbundled loops in residential markets should be classified as essential facilities, despite the presence of facilities‑based competitors in the form of cable companies, including Rogers itself in some areas.

1LISTNUM 1 \l 18045            Under the Bureau's test, downstream market power is a screen.  If there is no dominance downstream as a result of control of a particular facility, the facility is not essential.

1LISTNUM 1 \l 18046            In the case of residential telephony, the presence of a cable company offering local telephony is likely sufficient to reach this conclusion, and thus in most residential markets under the Bureau's definition there should not be mandated access to unbundled local loops.


1LISTNUM 1 \l 18047            Furthermore, the empirical record suggests that after ten years of unbundling, the competitive significance of residential loops has been minimal and it is unlikely to generate benefits to consumers significant to cover its costs.  It is evident to the Bureau that these purportedly more practical and operationally simpler proposals will result in significant errors.

1LISTNUM 1 \l 18048            Furthermore, it is not at all clear that these proposals are in fact simpler to operationalize.  Both TELUS and Rogers, among others, have asserted at this hearing that their definitions will be easier for the Commission to apply than that of the Bureau.

1LISTNUM 1 \l 18049            Indeed, it appears to be relatively simple to count to one in order to assess a monopoly or to count to four to tally up the number of competitors operating within a wire centre.  In fact, these criteria or definitions are not as simple as they may appear since they do not employ tested and measurable competition law principles.


1LISTNUM 1 \l 18050            TELUS, for example, suggests that relevant product market definition in both upstream and downstream markets is overly complex and unnecessary.  It is sufficient, they argue, to identify, one, a single substitute of comparable functionality to establish that duplication of a particular facility is possible, and, thus, that there is some form of alternative for consumers in a downstream market.

1LISTNUM 1 \l 18051            This is simply too simple to be true and TELUS has never firmly set out how the Commission should actually assess comparable functionality, nor the extent to which it must exert competitive discipline sufficient to control any exercise of incumbent market power, which is the key concern.

1LISTNUM 1 \l 18052            Market definition tools used by the Bureau and competition authorities around the world have well‑established thresholds for these criteria to assess market power and the extent to which competition can control market power.  In practice, for the Commission to assess and apply meaningful benchmarks of functionality, it would have to turn to competition law principles.

1LISTNUM 1 \l 18053            This brings us to our third area of discussion.  We have seen that definitions proposed by other parties either offer no real guidance on fundamental issues of implementation, and so are not as simply as they may appear, and/or that they are in fact simple to implement, but to achieve that simplicity at great, great costs of precision.


1LISTNUM 1 \l 18054            These parties might say that costs are worth it when compared to the effort that they claim would be involved in implementing the Bureau's definition.  In fact, Mr. Chairman, members of the Commission, the Bureau's test is not nearly as complex and difficult to apply as other parties would have you believe, precisely because it is based on well‑established competition policy principles that properly recognize and balance the potential benefits and costs of mandating wholesale access.  Indeed, competition law authorities and regulators worldwide routinely perform these market power assessments.

1LISTNUM 1 \l 18055            The Bureau's retrospective definition is akin to the approach in assessing abuse of dominance outlined in the Bureau's Enforcement Guidelines on the Abuse of Dominance Provisions.  This approach has been endorsed by the Competition Tribunal and provides an objective standard that can be applied in the context of this proceeding, it is our submission.

1LISTNUM 1 \l 18056            Put simply, the competition policy principles and jurisprudence that underlie the Bureau's definition are the best guarantee that our definition, the Bureau's definition, can, in fact, be properly and successfully applied by the Commission going forward.


1LISTNUM 1 \l 18057            More importantly, whatever effort the Commission may expend in applying the Bureau's definition will be more than worthwhile from the standpoint of achieving the fundamental objective of promoting effective and efficient competition and avoiding ‑‑ avoiding ‑‑ the significant errors that we have identified is inherent in the other definitions that are before you.

1LISTNUM 1 \l 18058            MR. ABUGOV:  Mr. Chairman, Commissioners, we understand well that you are seeking pragmatic and workable solutions to deal with the issues before you in this proceeding.  With this in mind, you have posed interrogatories to the parties, you have proposed a possible regulatory framework of categories of services and you have circulated a list of specific services for categorization based upon the possible regulatory framework.

1LISTNUM 1 \l 18059            The Bureau recognizes the attempts by the Commission to streamline your review of services and agrees that there is merit in identifying and categorizing the services over which there is little disagreement and singling out those services that are more contentious.


1LISTNUM 1 \l 18060            However, for each of the contentious services, once they are identified, the Bureau would emphasize that it will still be very important for the Commission to use and apply the correct definition in order to determine whether or not the services in question are essential.  To do otherwise would bypass the necessary analysis to identify essential services and would create the potential for serious errors, for instance by failing to incorporate and analyze specific geographic markets.

1LISTNUM 1 \l 18061            Still, as the Bureau's panel explained at the hearing, once the Commission considers in depth whether specific facilities are essential, you will no doubt develop insight and understanding that can be applied more broadly.  The Bureau expects that the Commission could at that point develop its own accurate and "Made in Canada" proxy rules.

1LISTNUM 1 \l 18062            In conclusion, Mr. Chairman and Commissioners, the Bureau's proposal in this proceeding is indeed an operational approach.  It is based on a competition framework that the Commission has itself adopted in the past and has been able to use with success.

1LISTNUM 1 \l 18063            To oversimplify the Bureau's approach, as some parties have aimed to do in this proceeding, and to substitute proposals that deviate from competition policies and principles is to ask the wrong questions and, more importantly, for Canadian consumers and for Canada to obtain the wrong answers.


1LISTNUM 1 \l 18064            Mr. Chairman and Commissioners, on behalf of the Competition Bureau, we thank you for hearing our views this morning in this most important proceeding, and that concludes our oral argument.

1LISTNUM 1 \l 18065            THE CHAIRPERSON:  Thank you.

1LISTNUM 1 \l 18066            Just a couple of questions to make sure I understood you correctly.

1LISTNUM 1 \l 18067            You don't like the proxies offered by TELUS, but if I understand it you don't offer any alternative proxies.  You are tell us, "Develop the proxy test".

1LISTNUM 1 \l 18068            MR. ABUGOV:  Our experts indicated in the evidence, and we have indicated this morning, Mr. Chairman, that we believe the Commission can, indeed, develop its own proxies over time, based on its analysis of cases that come before it.

1LISTNUM 1 \l 18069            The Commission has done this in the past, and we believe that's a more appropriate route to take than to adopt proxies put forward before you during this proceeding that are either imported from another jurisdiction or that have not been tested in the Canadian context, that's correct.

1LISTNUM 1 \l 18070            THE CHAIRPERSON:  Okay.


1LISTNUM 1 \l 18071            On page 11, you suggest that after a transition period with a hard stop, if things haven't developed as we expected, we should hold another hearing and, if necessary, adopt retail regulation.

1LISTNUM 1 \l 18072            I gather implicit in that is that you ‑‑ what you have called type I and type II errors ‑‑ you think we should at all costs avoid making type I error, and therefore deregulate or take away mandating wherever possible, and then revisit if ‑‑ in terms ‑‑ if made an error, rather than being overly protective, so, in effect, to avoid a type I error.  Is that correct?

1LISTNUM 1 \l 18073            MS PALUMBO:  That is correct.

1LISTNUM 1 \l 18074            THE CHAIRPERSON:  Okay.  And we have heard noting from you on a phaseout, so I gather you have no comment on what's the appropriate phaseout period?

1LISTNUM 1 \l 18075            MS PALUMBO:  We will be addressing this more fully in the write oral argument, however, in terms of the transition period, the Bureau's position has been that a transitional period would be somewhere between the three years and the five years.

1LISTNUM 1 \l 18076            THE CHAIRPERSON:  Okay.  Thank you.

1LISTNUM 1 \l 18077            Commissioner del Val.

1LISTNUM 1 \l 18078            COMMISSIONER del VAL:  Thank you.


1LISTNUM 1 \l 18079            Just one question.  Referring to the direction where there's been ‑‑ the competitor presence test set out for the residential and the business market, do you see those tests playing any role in, say, helping define "market power" in the Bureau's proposed definition of "essential services"?

1LISTNUM 1 \l 18080            MR. ABUGOV:  Commissioner del Val, it would be our preference to take an undertaking and respond to that question in writing.

1LISTNUM 1 \l 18081            Thank you.

1LISTNUM 1 \l 18082            COMMISSIONER del VAL:  Thank you, Mr. Abugov.

1LISTNUM 1 \l 18083            THE CHAIRPERSON:  Okay, thank you very much for your presentation.

1LISTNUM 1 \l 18084            Madam Secretary, who's next?

1LISTNUM 1 \l 18085            THE SECRETARY:  For the record, Mr. Abugov, just note that the undertaking from Mr. von Finckenstein is CRTC‑8, and the last one is CRTC‑9.

1LISTNUM 1 \l 18086            Thank you.

1LISTNUM 1 \l 18087            THE SECRETARY:  Our next panel, The Companies, please come forward, Counsel Hofley and Mr. Bibic.

‑‑‑ Pause

1LISTNUM 1 \l 18088            MR. HOFLEY:  With your permission, Mr. Chairman.

1LISTNUM 1 \l 18089            THE CHAIRPERSON:  Mr. Hofley, good morning.  Please begin.


ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 18090            MR. HOFLEY:  Good morning, Mr. Chairman, good morning, Commissioners.

1LISTNUM 1 \l 18091            You will hear from me, Randall Hofley, for our radio listeners, followed by Mr. Bibic.

1LISTNUM 1 \l 18092            Mr. Chairman, Commissioners, this Commission has undertaken an assessment of a wholesale regulatory regime that has broad implications for the development of telecommunications markets, residential and business, in Canada.  It has done so in a particular context that cannot be ignored:  at the direction of the government, following a comprehensive review of telecommunications policy by independent experts, the TPR.  This independent expert panel's conclusions could not be more clear.

1LISTNUM 1 \l 18093            The panel concluded that the scope of wholesale access currently required by the Commission is too broad, that it undermines incentives for parties to be efficient, to invest, including building of alternative facilities, and to innovate, and that, quote, "the scope of such mandated wholesale access should be narrowed", end quote.


1LISTNUM 1 \l 18094            It is clear, in our submission, Mr. Chairman, Commissioners, that these conclusions not only inform the policy direction, but provide the foundation for the policy direction's instruction that the Commission complete this very review process.

1LISTNUM 1 \l 18095            Above all else, the policy direction requires that the Commission, quote, "rely on market forces to the maximum extent feasible", end quote.  In our submissions, these words plainly mean that wholesale regulation can only be maintained where regulation is absolutely necessary to address a real and sustained market failure in a properly defined product and geographic market.

1LISTNUM 1 \l 18096            Indeed, it is our submission that this fundamental direction requires that the Commission be convinced that the benefit to society of mandating access to a facility will exceed the cost.  If, and only if, the Commission reaches this conclusion, the policy direction requires that the Commission use regulatory measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary.


1LISTNUM 1 \l 18097            The policy direction's specific provisions related to the regulation of wholesale services must be interpreted within this important and undeniable context.  The policy direction gives the Commission an important mandate.  It indicates that this review is to result in an approach which, again I quote:

"Increases the incentives for innovation and investment in, and construction of, competing telecommunications network facilities." (As Read)

1LISTNUM 1 \l 18098            It directs the Commission to determine the extent to which mandated access to wholesale services that are nonessential should be phased out and the appropriate pricing of any remaining regulated services.

1LISTNUM 1 \l 18099            Clearly, Mr. Chairman, commissioners, the mandate the Commission has been given directs change.  It requires a determination of the extent to which mandated access should be phased out.  It doesn't say the extent, if any, to which mandated access should be phased out.


1LISTNUM 1 \l 18100            It clearly focuses on incentives, not only for incremental investment in existing facilities, but on incentives for the construction of network facilities to compete with those in existence.  The Commission is not to be satisfied with the status quo or even with incremental investment at the margins, but rather investment in facilities that will, like cable telephony, bring what the Bureau's Mr. Hariton describes as "the vast bulk of the benefits of competition."

1LISTNUM 1 \l 18101            Now, MTS Allstream suggests that the policy direction favours competition that includes a mixture of leased and owned facilities on the grounds that the policy direction instructs the Commission to encourage facilities‑based competition.  And that facilities‑based competition was defined in the government's forbearance variation order to include competition from parties who use a mix of leased and owned facilities.

1LISTNUM 1 \l 18102            At its simplest level, the acceptance of this proposition would mean that the status quo meets the government's policy objectives and that, quite simply, this review has been a waste of time.  It would amount, in our submission, to a serious misreading of the government's policy pronouncements.


1LISTNUM 1 \l 18103            Of course, it is true that the retail forbearance test embodied in the forbearance variation order can be satisfied with competition, is based on a party that uses a combination of its owned and leased facilities.  This policy outcome simply recognizes the fact that service providers will inevitably rely, to some extent, on leased facilities, particularly in the provision of business services.

1LISTNUM 1 \l 18104            There is no ubiquitous carrier that covers the entirety of Canada, nor is there likely ever to be.  This fact does not mean that the provision of leased facilities should be regulated as a matter of policy.  What should be regulated at the wholesale level is a very different question than the question which was resolved in the government's forbearance variation order.  What should be regulated at the wholesale level is answered by the policy direction.

1LISTNUM 1 \l 18105            The policy direction does not use the term "promote facilities‑based competition."  What it does say, Mr. Chairman, commissioner is:

"Increase incentives for investment in and construction of competing telecommunications network facilities." (As Read)

1LISTNUM 1 \l 18106            These words, I say, leave no doubt or ambiguity as to their meaning.


1LISTNUM 1 \l 18107            As the Bureau's Mr. Hariton stated, innovation and competition does occur and must occur at the physical or network level, not simply the application level.  This is clear from Verizon's fibre to the home and Bell and Bell Aliant's fibre‑to‑the‑node programs.  The government's objective is more construction of network facilities as end to end facilities‑based competition fosters the greatest reliance on market forces.

1LISTNUM 1 \l 18108            Now, as for the definition of essential facilities, a review of the record reveals that, perhaps not surprisingly, the more a party relies or hopes to continue to rely on facilities owned by another the broader the definition of essential facilities that party proposes, the greater the number and complexity of the hoops that party would require the facility owner to jump through in order to have the facility declared nonessential, and the further the definition strays from both the ordinary and competition law meaning of essential.


1LISTNUM 1 \l 18109            At one end of the spectrum is MTS Allstream who would have a facility declared essential where it is required by any competitor to provide any service downstream.  And a facility is required by a competitor unless it is capable of self‑supply and is available from a vigorous, sustained third‑party market with alternative sources of supply.  Notwithstanding that it acknowledges that the concern is competition downstream, MTS and its expert insist that there is no need to assess if there is market power downstream whether in the absence or the presence of mandated access.

1LISTNUM 1 \l 18110            Under this definition, Mr. Chairman, commissioners, nearly every wholesale service mandated today, and a couple of new ones, will continue to be mandated.  This will provide MTS with the certainty of cost structure it desires to continue along the path of resale competition.  This is the everything I want is essential definition.  MTS's approach is, of course, premised on the continuation of the open network access model, a model that would see most parts of the incumbent's network opened up to competitors in the hopes it will lead to retail forbearance.  This model envisaging wholesale regulation in perpetuity has been discredited, notably by the TPR panel and most recently by this Commission in Telecom Decision 2007‑35, the retail DNA decision.

1LISTNUM 1 \l 18111            At paragraph 100 of the decision the Commission stated and I quote:


"In order for forbearance of retail hi‑speed DNA services to be appropriate the competitor should be able to independently and reasonably offer customers an alternative to ILEC's hi‑speed DNA services over their own facilities, that is competitors should own and operate the underlying transmission facilities." (As Read)

1LISTNUM 1 \l 18112            Now, other parties, like Rogers, who have an interest in buying as much time as possible to expand their facilities‑based network to serve business as extensively as they serve residential customers propose a definition of essential facility that comes closer to the ordinary and competition law meaning.  But, to be mandated as essential, Rogers would only require that the party controlling the facility possess enough power upstream to prevent or lessen competition in a downstream market in a nontrivial manner.


1LISTNUM 1 \l 18113            As for duplicability, Rogers proposes the use of arbitrary proxies, at least arbitrary in the Canadian context, which Rogers is well aware will not be met anytime soon.  This is what you may recall I coined "the Rogers don't rush me approach."  Rogers' approach is, of course, premised on the steppingstone model, a model the CDN experience demonstrates has not worked in Canada, again, as recently recognized by this very Commission in the same paragraph 100 of the same Decision 2007‑35.  And again, I am going to quote.  The decision says:

"Forbearance for hi‑speed DNA service should not be predicated on the availability of ILEC CDN services within a wire centre.  The Commissions considers the ILEC‑supplied CDN service would not contribute towards a sustainability of hi‑speed DNA market because it would perpetuate competitors' dependency on ILEC hi‑speed DNA facilities and continued regulation of underlying facilities for the provision of hi‑speed DNA services." (As Read)

1LISTNUM 1 \l 18114            At the other end of the spectrum of course, Mr. Chairman, commissioners, is the definition proposed by TELUS.

1LISTNUM 1 \l 18115            Now, for their part, the Companies have unwaveringly taken an approach that is grounded in Canadian competition law principles so much so that it has adopted the definition proposed by the Competition Bureau and effectively Mr. Osborne.


1LISTNUM 1 \l 18116            The Companies' definition requires that the Commission consider whether the facility owner has market power downstream that access to the facility may redress.  Absent such market power, there can be no principled basis upon which wholesale regulation can be maintained or imposed. Market power over a facility upstream does not necessarily mean there is market power downstream if there is a party or parties who compete downstream without any need for an ILEC's facilities.  For example, using an alternative platform or wire.

1LISTNUM 1 \l 18117            From there, we say the Commission must conclude that the facility owner has market power in the supply of that facility because it cannot be duplicated and that mandating access will materially preserve or enhance, as the case may be, competition in the downstream market such that the benefits of regulation outweigh the considerable costs of regulation.

1LISTNUM 1 \l 18118            The Companies' definition, I suggest, is practical, principled and, most importantly, consistent with the policy direction.


1LISTNUM 1 \l 18119            Now, Mr. Chairman, I have appeared before a number of federal tribunals charged with the important task of regulating business conduct over many years.  And with that experience I believe that it is important to note that the Commission is in a unique position in these proceedings.  It has the benefit of detailed and expert advice from three independent sources; the TPR, the Bureau and Mr. Osborne, each of whose sole constituency is the public interest.

1LISTNUM 1 \l 18120            Moreover, this independent advice addresses the fundamental issues before the Commission, including the government's intention in this policy direction, the definition of an essential facility, the incentive to invest and whether if, and I say if, only two competitors emerge they will provide sufficient competition.  Each of these independent sources have made submissions consistent with that of the Companies on these fundamental issues.

1LISTNUM 1 \l 18121            In respect of the policy direction Mr. Osborne stated that, and I quote:

"The regulatory goal of the policy direction is to increase incentives for innovation and development of new facilities.  Any ambiguity in the particulars in subsections 1(b) and (c)..."

1LISTNUM 1 \l 18122            ‑‑ those are the factors ‑‑


"...should be resolved in favour of the general principles articulated in subsection 1(a), being reliance on market forces to the maximum extent feasible." (As Read)

1LISTNUM 1 \l 18123            In respect of the definition of essential facilities, as already indicated, the Competition Bureau's and Mr. Osborne's proposed definitions are inline with that of the Companies or should I say the Companies support those definitions.

1LISTNUM 1 \l 18124            On incentives to invest, you have heard from the TPR, from the Bureau and the overwhelming majority of the academic evidence that mandated wholesale regulation undermines the incentive to invest in constructing network facilities.

1LISTNUM 1 \l 18125            Indeed, the record of this proceeding has confirmed that this is not merely a theoretical conclusion, but is a practical reality in Canada, the case CDN confirms that.  Bell West, TELUS in the east, Vid,otron and five utelcos all indicated in interrogatory responses that they cutback on their building of new facilities as a result of the CDN decision.


1LISTNUM 1 \l 18126            Of all the companies in this proceeding that are building access facilities, MTS is the only company that claimed that CDN incented it to build.  Everyone else stated it either had no impact or it undermined their access construction programs.

1LISTNUM 1 \l 18127            Of course, MTS evidence on the issue must be considered carefully.  Under cross‑examination, MTS could not explain why in 2002 they had access to approximately 3,300 buildings using their own facilities but in 2007 they were down to approximately 2,300.  Regardless of why the numbers went down, Mr. Chairman, commissioners, what is clear is that they did not go up.

1LISTNUM 1 \l 18128            Such evidence is not isolated.  Take the case of Shaw, a company that has advocated the need for mandated CDN access but under cross‑examination admitted they were only seeking mandated access for low‑speed services.

1LISTNUM 1 \l 18129            Even in that case, Shaw admitted that they viewed CDN as an essential service, in contrast to Vidéotron, because they had not been building their network over the last few years like Vidéotron.


1LISTNUM 1 \l 18130            As for whether two facilities‑based competitors can provide sufficient competition, the Competition Bureau has concluded that given the nature of the industry, coordinated conduct or joint dominant behaviour is, to use Dr. Church's words, "very highly unlikely."

1LISTNUM 1 \l 18131            Only the Bureau and Dr. Taylor and Ms Sanderson for The Companies conducted the well‑recognized competition law analysis of whether a duopoly, again, if it occurs, would be likely to result in a coordinated anticompetitive outcome in these circumstances.

1LISTNUM 1 \l 18132            They all concluded it would not, much like the government must have concluded in the forbearance variation order.

1LISTNUM 1 \l 18133            For his part, Mr. Osborne opined in the residential broadband internet context that "the numbers suggest that a cableco‑telco duopoly can result in strong facilities‑based competition."

1LISTNUM 1 \l 18134            In short, Mr. Chairman, commissioners, on these fundamental issues, the Commission need not be concerned about weighing the submissions in light of the parties' self‑interest.  It has three independent public interest sources to assist in this process.


1LISTNUM 1 \l 18135            As the independent TPR panel concluded, the current wholesale policies of the Commission have distorted the behaviour and incentives of new entrants in Canadian telecommunications markets.  No less than a fundamental change to these policies is required to achieve the outcome envisaged by the policy direction.

1LISTNUM 1 \l 18136            I turn it over to Mr. Bibic to provide The Companies' specific recommendations as regards this fundamental change.

1LISTNUM 1 \l 18137            MR. BIBIC:  Mr. Chairman, commissioners, from my vantage point there seem to be two conflicting concerns of the Commission at the heart of this proceeding.

1LISTNUM 1 \l 18138            First, the evidence shows that too much wholesale regulation undermines the construction of competing telecom network facilities.

1LISTNUM 1 \l 18139            Second, there is the view put forward by some that the removal of most wholesale regulation or its removal too quickly will undermine competition.

1LISTNUM 1 \l 18140            Now, of course, you won't be surprised to hear me say that we believe that the proposal we put forward during our testimony when we were on the panel, relying as it does on market forces and ex post regulation, is the best way to achieve the objectives in the Policy Direction.


1LISTNUM 1 \l 18141            That being said, we believe that it is possible to meet the Policy Direction's objectives and reconcile these two conflicting concerns using the ex ante framework set out in the Commission's October 3rd letter if the Commission feels compelled to do so, which brings me to our proposal, Mr. Chairman.

1LISTNUM 1 \l 18142            Contrary to likely expectations, we are not proposing to classify all services as non‑essential and I am not referring here only to public goods services and interconnection services.

1LISTNUM 1 \l 18143            We have therefore developed an alternative proposal which takes into account the two conflicting concerns and recognizes that the Commission is strongly considering some form of ex ante model consistent with that October 3rd letter.

1LISTNUM 1 \l 18144            In my remaining time this morning, I will briefly highlight the key parts of our alternative proposal, in particular which services should be considered as conditional essential, which should be non‑essential subject to phase‑out, and which should be conditional mandated non‑essential, and the reasons why.

1LISTNUM 1 \l 18145            I will also briefly touch upon the transition period and what should transpire at the end of that transition period.


1LISTNUM 1 \l 18146            Mr. Chairman, you may recall that on October 10th, the first day our panel appeared, you pointed out that The Companies say everything should be ex post.  You also asked me if it is absolutely necessary to take this black and white approach.

1LISTNUM 1 \l 18147            My answer back then basically was that if I were in your shoes I would focus on low‑capacity access.  We have thought about this some more and I have a more fully developed answer for you this morning.

1LISTNUM 1 \l 18148            The Companies still believe that the Commission should focus its regulation on low‑capacity access services, and by that I mean unbundled copper loops and low‑capacity CDNA, DS‑0s and DS‑1s.  This means that access services at DS‑3 and above and transport services would be classified as non‑essential services subject to phase‑out.

1LISTNUM 1 \l 18149            Competitors have already built or are prepared to build these higher‑capacity access and transport facilities largely due to the high revenue potential of the many and varied existing and reasonably foreseeable retail services which utilize these facilities.  Such facilities are duplicable and this has been clearly established in the marketplace and on the record, even by those who call for continued regulation of CDN.

1LISTNUM 1 \l 18150            With respect to high‑capacity DS‑3 and above access, I provide the following examples from the record.


1LISTNUM 1 \l 18151            First, as Mr. Hofley just mentioned, Shaw stated during Mr. Daniels' cross‑examination that DS‑3 access should not be mandated.

1LISTNUM 1 \l 18152            Primus also conceded when they were on the stand that DS‑3 and above access can be economically justifiable for competitors to build, including themselves via Globility.

1LISTNUM 1 \l 18153            And Rogers admitted that it has access to a much greater number of buildings than it otherwise would have had the Commission believe.  In fact, in the downtown core of Ottawa, an area where one is most likely to sell high‑speed business services, Rogers has admitted that it already has access to 78 percent of the major buildings in the downtown core.

1LISTNUM 1 \l 18154            Mr. Chairman, when I was on the stand I pointed out that based on our surveys we thought they had access to 90 percent of the buildings in the downtown core.  There was an undertaking.  Rogers came back, did their own search and the 78 percent comes from their answer.


1LISTNUM 1 \l 18155            Now, of course, when a cableco has fiber into a building, it obviously can offer all the sophisticated business services at issue in this proceeding.  Some of the access they have is via coax.  Now, when they have coax access, they can obviously offer basic voice service and internet service but more importantly, as Mr. Babin of Bell pointed out, with that access one can pull in fiber using existing conduits.

1LISTNUM 1 \l 18156            So those are my examples, Mr. Chairman, for DS‑3 and above access.

1LISTNUM 1 \l 18157            Turning now quickly to transport services, these have by and large already been duplicated.  For example, Bell, TELUS, Rogers and MTS all operate their own national fiber backbone networks, not to mention the existence, of course, of you telco networks.

1LISTNUM 1 \l 18158            So under our alternative proposal, unbundled local loops and low‑capacity access would continue to be regulated as either conditional essential or conditional mandated non‑essential in areas where the retail service which uses these access facilities is regulated or where retail forbearance has been secured based on such mandated access.

1LISTNUM 1 \l 18159            Conversely, such facilities would be or become non‑essential at wholesale when the corresponding retail service is or would become forborne at retail based on the presence of competitors that do not require mandated access.


1LISTNUM 1 \l 18160            And this is an important point, Mr. Chairman.  Unbundled local loops, DS‑0s and DS‑1s, would not become non‑essential at wholesale until retail forbearance had been secured as a result of end‑to‑end competition.

1LISTNUM 1 \l 18161            I am going to proceed now to highlight our alternative proposal using residential and business voice ‑‑ actually, I am going to go through now and explain the model.  I am going to use residential and business voice and data services as examples just to highlight it.  So let's start with residential and business voice.

1LISTNUM 1 \l 18162            In exchanges where an incumbent's retail residential or business local voice services have been forborne based on the presence of end‑to‑end facilities‑based competition from competitors who use their own access ‑‑ so we can take Vidéotron in Montreal, for example, where we are forborne already for residential voice ‑‑ unbundled local loops would be classified as non‑essential and subject to phase‑out.

1LISTNUM 1 \l 18163            Clearly, in those exchanges like Montreal, loops have been duplicated ‑‑ Vidéotron is there ‑‑ and they should not be regulated at wholesale.


1LISTNUM 1 \l 18164            So now taking another example, in exchanges where an incumbent's retail residential or business voice services have been forborne on the basis of mandated access to unbundled loops ‑‑ so now we can take Bell's business voice services in Toronto where MTS and TELUS are co‑located and use our loops ‑‑ those loops would be classified as conditional mandated non‑essential.

1LISTNUM 1 \l 18165            They would remain so classified until such time as the incumbent were able to demonstrate to the Commission that were it not already forborne, it could be forborne at the retail level either on the basis of the presence of a competitor that does not require mandated access or on the basis of the Competition Bureau's structured rule of reason test which it developed in a local forbearance proceeding.

1LISTNUM 1 \l 18166            So going back to my example, Toronto exchange were forborne today for business voice on the basis that some competitors co‑locate and use our loops, if in the future we see a cable company like Rogers start offering those business voice services using not its Call‑Net network but its own end‑to‑end network, we would come back to the Commission and say:  We know we are forborne but we could be forborne now on the basis of Rogers with its network.  Then those loops would move from conditional mandated non‑essential to non‑essential.


1LISTNUM 1 \l 18167            And then the third example using business voice is we need to take exchanges where the incumbent continues to be regulated today.  We are not forborne, we are regulated.  Unbundled loops in those areas would be classified as conditional essential.

1LISTNUM 1 \l 18168            Over time, should the incumbent become forborne at retail on the basis either of a competitor using its own access facilities or the Bureau's structured rule of reason test, which fundamentally depends on a competitor being present with its own facilities, then the loops would become non‑essential.

1LISTNUM 1 \l 18169            Alternatively, should we become forborne in that area on the basis of a competitor who leases loops, then the loops would become classified as conditional mandated non‑essential.  So this would address areas where today we are regulated because there is no competition.

1LISTNUM 1 \l 18170            So those were my examples using retail residential and business voice.


1LISTNUM 1 \l 18171            I would just like to spend a moment, Mr. Chairman, on retail data services.  Many of these require low‑capacity DNA to function, and the regulatory treatment of low‑capacity CDNA, the wholesale version, which is at issue obviously in this proceeding, would follow the same principles.  So in a wire centre where low‑capacity retail DNA is regulated, the corresponding wholesale CDNA version would be classified as conditional essential.

1LISTNUM 1 \l 18172            Now, I recognize that to date there has been no forbearance of low capacity retail DNA, which means under our proposal DS‑0s and DS‑1s at wholesale would not be non‑essential but, in the future, as low capacity retail DNA becomes forborne based on the presence of alternative low capacity access services, the corresponding wholesale version, the low‑speed CDNA, would also be forborne.

1LISTNUM 1 \l 18173            Mr. Chairman, this of course means that you should expect to soon receive from us a forbearance application to be forborne for retail, low‑speed DNA services.

1LISTNUM 1 \l 18174            So at its core our alternative model recognizes that once an incumbent has been forborne at retail on the presence of the end‑to‑end facilities‑based competition for residential and for voice and low‑speed accesses, the relevant public policy and regulatory objectives espoused in the policy direction have been met and wholesale regulation becomes redundant and should be removed.

1LISTNUM 1 \l 18175            I'm going to move now to my comments on the transition period.


1LISTNUM 1 \l 18176            In this proceeding there has been much discussion concerning the length of the transition period.  The Companies initially proposed one year and many others proposed three to five.

1LISTNUM 1 \l 18177            Now, the transition period must reflect the entire regulatory scheme adopted.  It should not be selected in isolation from other elements of the regime.

1LISTNUM 1 \l 18178            Our alternative approach is in fact very conservative.  With the adoption of a conservative approach to the application of the definition of "essential facilities" it is important not to strike a transition period that is too long.  Thus, should the Commission opt for our alternative approach, it is critical that the transition period should not be unduly lengthy.

1LISTNUM 1 \l 18179            It would be a serious mistake, in our view, to opt for a generous application of a definition of "essential facilities" as well as a generous transition period.


1LISTNUM 1 \l 18180            Frankly, Mr. Chairman, in an industry as dynamic and as competitive as ours five years is an awfully long time.  Such a long period of time will not incent industry participants to modify their current behaviours in an effort to reach an optimal balance between building, negotiating market‑based arrangements and relying on regulation where a facility really is essential.

1LISTNUM 1 \l 18181            This actually brings me back to the words from the policy direction which Mr. Hofley mentioned:

"... the reliance on market forces, to the maximum extent feasible, and interference with market forces to the minimum extent necessary."  (As read)

1LISTNUM 1 \l 18182            Those words mean something and, in my view, they don't contemplate a wholesale regime that continues the way it is today for a lengthy period of time when that wholesale regime was actually developed when there weren't any market forces or when the Commission didn't rely on them.  All that is going to do, in my submission, Mr. Chairman and Commissioners, is keep us all in this comfortable state of suspended animation where there is no incentive to modify behaviours.

1LISTNUM 1 \l 18183            Because of that, and in an effort to address the conflicting concerns I mentioned at the very beginning of my remarks, The Companies have revised their transition period proposal as follows:


1LISTNUM 1 \l 18184            A three‑year transition period would apply for all access services, whether high‑speed or low‑speed.  For example, residential unbundled local loops in Ottawa ‑‑ we can use Montréal which was my earlier example ‑‑ where we are already forborne on the basis of cableco presence would continue to be regulated for a full three‑year period.

1LISTNUM 1 \l 18185            A two‑year transition period would apply for transport, given the general recognition that transport can be more quickly duplicated and in fact has been.

1LISTNUM 1 \l 18186            A one‑year transition period would apply for all those services for which competitors already have developed competing alternatives.  We heard about some of them during the cross examinations but they would include LRN‑absent, LNP and billing and collections services, all of which have been shown to have many competitive alternatives.


1LISTNUM 1 \l 18187            So our transition proposal also includes the following elements:  the flexibility for periodic price increases; allowing parties to negotiate commercial agreements during the transition period and beyond; and no obligation to make applicable services available on a mandated basis to new customers or to permit existing customers to augment capacity at specified intervals during the transition period.  We will of course flush this out in more detail in our final written materials.

1LISTNUM 1 \l 18188            Commissioners and Mr. Chairman, certain parties have questioned the real motivation behind our proposal and as I sit here this morning in closing argument I can sincerely say that our end goal is not to exit the wholesale business.

1LISTNUM 1 \l 18189            In fact, we spoke earlier this week to my counterpart who heads up Bell's wholesale business and his desire.  He reaffirmed his desire that he wants to enter into long‑term business partnerships with his wholesale customers where possible.

1LISTNUM 1 \l 18190            So ours is not a trust me or a trust us approach, it is a trust the market approach, which brings me to the regulatory treatment at the end of the transition period.

1LISTNUM 1 \l 18191            In our view,the Commission must send a strong signal to the industry that at the end of the transition period services already found by the Commission to be non‑essential will no longer be regulated.


1LISTNUM 1 \l 18192            It would be highly inappropriate and wasteful of regulatory resources for the Commission to require incumbents after that period to again apply to be forborne from regulation of wholesale services which have already found to be non‑essential.

1LISTNUM 1 \l 18193            It would also be inappropriate for the Commission to signal that it would be open to considering an extension of a transition period.  This would perpetuate competitors' existing behaviour and again would do nothing to incent industry participants to modify their business behaviour.

1LISTNUM 1 \l 18194            Ten years ago the Commission in fact established a five‑year sunset regime for loops and other services which many actually anticipated would eventually be extended and of course competitors acted accordingly.

1LISTNUM 1 \l 18195            Instead, the Commission must implement a hard stop to the continued regulation of non‑essential services, recognizing that following the transition period it would still be possible to address anti‑competitive behaviour on an ex post basis.

1LISTNUM 1 \l 18196            As a closing note, and recognizing the Commission's legitimate concerns with incenting investment without diminishing competition, I believe it is important for the Commission to note that it is not being asked in these proceedings to deregulate on a leap of faith that an alternative ubiquitous network will be built.


1LISTNUM 1 \l 18197            Cable is already present, wireless is also here and continues to develop and who knows what else will come down the pike.

1LISTNUM 1 \l 18198            Now, we heard Mr. Abugov in representing The Bureau earlier this morning refer to the words of Mr. Waters, an independent ‑‑ not an independent, a well‑known expert in telecom regulation internationally.  You may recall that Mr. Abugov referred to the words of Mr. Waters who had said that it's a little strange when he comes here to see one of the world's most complete ladders of investment and how in other countries they want to get to where we are.

1LISTNUM 1 \l 18199            What Mr. Abugov didn't mention was the next part of Mr. Waters' statement when he put to the Commission that he thinks the basic question is:  How do we make what we have got work harder, faster and better?  Mr. Waters believes that is the essential question.

1LISTNUM 1 \l 18200            And we believe, Commissioners, that our proposal today will accomplish just that.


1LISTNUM 1 \l 18201            So we wish you well in your deliberations and on behalf of The Companies I would like to thank the Commissioners, I would like to thank the Hearing Secretary and the counsel and all staff for the time that you have put into this proceeding.  They are important issues that are being decided upon and we certainly appreciate the opportunity we have been given to put our case forward.

1LISTNUM 1 \l 18202            THE CHAIRPERSON:  Thank you very much.

1LISTNUM 1 \l 18203            I must say, I very much appreciate you coming forward with an alternative proposal.  You obviously listened very carefully to our question and looked at our framework.  What you have put forward is a very interesting variation which we will study carefully.

1LISTNUM 1 \l 18204            Just a couple of questions.  Is anything that's going to fall in the bucket essential?

1LISTNUM 1 \l 18205            MR. BIBIC:  The first bucket?

1LISTNUM 1 \l 18206            THE CHAIRPERSON:  Yes.

1LISTNUM 1 \l 18207            MR. BIBIC:  Do you know which one?

1LISTNUM 1 \l 18208            The Commission's October 3rd letter had an example "BLIF", "Basic Listing Information", I think, and that's what we would put in that category.

1LISTNUM 1 \l 18209            THE CHAIRPERSON:  I thought during questioning of you particularly something came up which you mentioned here that actually would fall in essential, if memory serves me correctly.

1LISTNUM 1 \l 18210            Counsel, do you remember what it was?


1LISTNUM 1 \l 18211            MR. McCALLUM:  Subscriber listings perhaps?

1LISTNUM 1 \l 18212            MR. BIBIC:  That's the same service.

1LISTNUM 1 \l 18213            THE CHAIRPERSON:  I see.  All right.

1LISTNUM 1 \l 18214            Second, you mentioned during the phase‑out periodic price increases.

1LISTNUM 1 \l 18215            I presume you will outline that in your written submissions?

1LISTNUM 1 \l 18216            MR. BIBIC:  Yes.

1LISTNUM 1 \l 18217            THE CHAIRPERSON:  Can you share with us what you have in mind?

1LISTNUM 1 \l 18218            MR. BIBIC:  Well, I haven't landed on what we would recommend in terms of the level of the price increase, but I could offer this:  Ms Cram asked a number of questions of a number of parties where she posited a price increase from cost plus 15 to cost plus 20, over time to cost plus 25, and of course that presupposes that the price increases would apply to Category 1 services or essential services.

1LISTNUM 1 \l 18219            Our proposal will suggest price increases not only for Category 1 services, but services that fall in conditional mandated non‑essential as well.


1LISTNUM 1 \l 18220            THE CHAIRPERSON:  You suggest three‑year phase‑out for certain services.  If I understand you correctly, you are saying we would say mandated prices and at the end of year one or at the end of year two you may increase the prices by "X" and "X" will be at a formula or an amount or whatever?

1LISTNUM 1 \l 18221            MR. BIBIC:  That's absolutely correct.

1LISTNUM 1 \l 18222            Actually, I can develop that a little bit further.

1LISTNUM 1 \l 18223            Let's take access services where we propose a three‑year transition period.  Probably I would say that we will come forward and we will say after the first year price increases would be permissible and over certain intervals for the remaining period as well.

1LISTNUM 1 \l 18224            But also, one element that you haven't asked me about but it is tied into this, is this notion of not having, on the mandated basis, the obligation to augment capacity.

1LISTNUM 1 \l 18225            So take the three‑year transition period after year two.  So after the second year we would say that there would be no further obligation on the incumbents to sell on a mandated basis ‑‑ and those are important words ‑‑ to competitors further capacity.


1LISTNUM 1 \l 18226            So starting from the date of the decision the competitors could buy more services at mandated prices.  After year two they could continue with what they have at mandated prices, but the rest would have to be negotiated commercially.

1LISTNUM 1 \l 18227            THE CHAIRPERSON:  You anticipated where I was going, exactly that.

1LISTNUM 1 \l 18228            MR. BIBIC:  All right.

1LISTNUM 1 \l 18229            THE CHAIRPERSON:  I can see that you don't want to increase the mandated service to existing, but why are you punishing new ones as well?  I mean, that is three years.  If somebody enters the market during that three years, why should that company not be able to take advantage of the mandated services?  They are still in existence for that period.

1LISTNUM 1 \l 18230            On page 18 ‑‑

1LISTNUM 1 \l 18231            MR. BIBIC:  Yes, yes.

1LISTNUM 1 \l 18232            THE CHAIRPERSON:  Top paragraph (iii) you say:

"... on a mandated basis to new customers or to make existing customers' to augment."  (As read)

1LISTNUM 1 \l 18233            MR. BIBIC:  It's a question of as a new competitor enters, it will enter knowing what the rules of the game clearly are and we will have bene two years down the road.


1LISTNUM 1 \l 18234            Again, what we didn't specify in here are the words "at specified intervals during the transition period".  I didn't want to spend too much time on that because there are different definitions.

1LISTNUM 1 \l 18235            THE CHAIRPERSON:  Yes.

1LISTNUM 1 \l 18236            MR. BIBIC:  Taking the three‑year one, after two years or two years down the road the competitor would know when it enters that, if it wants to enter on the basis of access it should do so on a commercially negotiated basis with the incumbent.

1LISTNUM 1 \l 18237            Now if it turns out ‑‑ and this is where we go back to our ex post model that we presented during our testimony.

1LISTNUM 1 \l 18238            If it turns out that we are denying access, which I don't think we are going to do, the Commission could step in.

1LISTNUM 1 \l 18239            THE CHAIRPERSON:  Right.

1LISTNUM 1 \l 18240            Finally, what is a strong signal?  You want us to send a strong signal that this is a hard stop and there will be no extension.

1LISTNUM 1 \l 18241            I agree with you, as you have heard me speak many times in terms of predictability, et cetera.  I would just like to know what, in your view, is a strong signal.


1LISTNUM 1 \l 18242            MR. BIBIC:  The strong signal would actually be a statement from the Commission that says that at the end of the transition period, those services are forborne.

1LISTNUM 1 \l 18243            In fact, I have to say it is partly a reaction to the October 3rd letter wherein Category 3, non‑essential subject of phase‑out, the last sentence of that says that we would have to re‑apply for forbearance.  So that is a related point as well.

1LISTNUM 1 \l 18244            Saying that they are forborne actually sends that strong signal that the transition period won't be extended.

1LISTNUM 1 \l 18245            THE CHAIRPERSON:  You made that already in your submission.

1LISTNUM 1 \l 18246            MR. BIBIC:  Right.

1LISTNUM 1 \l 18247            THE CHAIRPERSON:  That sentence is superfluous: once it's over, it should be over.  I understand that.

1LISTNUM 1 \l 18248            MR. BIBIC:  That's correct.

1LISTNUM 1 \l 18249            THE CHAIRPERSON:  I just wanted to know what you meant.  By strong signal, you want a definitive statement from us.

1LISTNUM 1 \l 18250            MR. BIBIC:  Correct.

1LISTNUM 1 \l 18251            THE CHAIRPERSON:  All right; thank you.

1LISTNUM 1 \l 18252            Commissioner de Val, did you have a question?


1LISTNUM 1 \l 18253            COMMISSIONER del VAL:  Thank you, Mr. Bibic and Mr. Hofley.

1LISTNUM 1 \l 18254            I believe that when you were having the exchange with the Chairman, wasn't it 1‑800 service that you had agreed in testimony would be essential?

1LISTNUM 1 \l 18255            MR. MARTIN:  That was considered.  I think it was Mr. Denis Henry who indicated that 1‑800, this was the question of access tandem interconnection service, as to whether it would be continued to be mandated for 1‑800 versus normal ‑‑

1LISTNUM 1 \l 18256            MR. BIBIC:  Yes, Mr. Martin is correct.

1LISTNUM 1 \l 18257            We have classified those as interconnection services, and by definition those are mandated.

1LISTNUM 1 \l 18258            COMMISSIONER del VAL:  Thank you very much.

1LISTNUM 1 \l 18259            MR. BIBIC:  You are welcome.

1LISTNUM 1 \l 18260            THE CHAIRPERSON:  Commissioner Duncan?

1LISTNUM 1 \l 18261            COMMISSIONER DUNCAN:  I'm just wondering, am I to understand then that these comments are in addition to the definition that you proposed on October 3rd?


1LISTNUM 1 \l 18262            MR. BIBIC:  Yes.  The definition of essential facilities we proposed remains as it is.

1LISTNUM 1 \l 18263            COMMISSIONER DUNCAN:  So I did have a concern, when I read that, with your reference to "potential competitors".

1LISTNUM 1 \l 18264            It says, unless I have it incorrectly ‑‑ this is your October 4th opening statement:

"The facility is required as an input by all competitors or potential competitors."

1LISTNUM 1 \l 18265            MR. BIBIC:  That goes back to the transition period.  It is a related question to the one that the Chairman just asked me.

1LISTNUM 1 \l 18266            Again, this transition period applies to services which are, by definition, non essential.  So the definition of essential facilities has already determined that the service in question is not essential.

1LISTNUM 1 \l 18267            What we are saying is that at the end of the second year of the three‑year transition period no new customers should be able to come on board and say I want access to a non essential facility at mandated prices.


1LISTNUM 1 \l 18268            COMMISSIONER DUNCAN:  You also said in that, in your third point, that it is not practical or feasible for any competitor existing or potential.

1LISTNUM 1 \l 18269            I just have a problem with the "potential".

1LISTNUM 1 \l 18270            MR. BIBIC:  The use of the words is ‑‑

1LISTNUM 1 \l 18271            THE CHAIRPERSON:  I think Commissioner Duncan is going back to your definition of essential services.

1LISTNUM 1 \l 18272            MR. HOFLEY:  I'm going to try to answer your question.

1LISTNUM 1 \l 18273            The point is duplicability by a competitor.  Obviously you are going to have to in the real world look at kind of actual or existing competitors.  But you also, frankly, have to look at whether it is duplicable by a reasonably efficient competitor.  You have that framework.

1LISTNUM 1 \l 18274            What we are suggesting is that you can't just take as a given that because it's not duplicable by an existing competitor, that it would not be duplicable by a potential competitor.

1LISTNUM 1 \l 18275            And why potential is important, Commissioner Duncan, is because competition is driven both by actual competition and the threat of competition.  And that's why the word "potential" is used there.


1LISTNUM 1 \l 18276            COMMISSIONER DUNCAN:  Okay.  I guess I'm still troubled by it.

1LISTNUM 1 \l 18277            Is there another word that I could substitute that would make it easier for me to read?

1LISTNUM 1 \l 18278            I didn't want to say a reasonably efficient competitor, because it's difficult to predict.  I just don't understand how we would assess potential in the context of what you just said, that it is existing, and then we have to take into consideration what would be I guess humanly possible.  I don't know how we would be able to assess that.

1LISTNUM 1 \l 18279            MR. BIBIC:  Again, I think I'm back to the standard kind of competition law analysis.  This would be an analysis that would be done by, for example, the Competition Bureau in considering a merger case, for example.

1LISTNUM 1 \l 18280            As you know very well, Mr. Commissioner, it's not just simply whether or not it is duplicable by an actual competitor; it is whether it is duplicable by a potential competitor.

1LISTNUM 1 \l 18281            If it is, market power is disciplined by virtue of that threat.  So that's what we are trying to say there.

1LISTNUM 1 \l 18282            COMMISSIONER DUNCAN:  Thank you very much.


1LISTNUM 1 \l 18283            Thank you, Mr. Chairman.

1LISTNUM 1 \l 18284            THE CHAIRPERSON:  We asked the Competition Bureau and they suggested a proxy approach of bands put forward by TELUS is already simplistic and suggested we should develop other proxies.

1LISTNUM 1 \l 18285            Of course, we can do that and we will, but it is an awful lot of work and also you are the experts, et cetera.

1LISTNUM 1 \l 18286            Are you going to make in your submission some suggestion as to what viable proxies we should be using?

1LISTNUM 1 \l 18287            MR. BIBIC:  I think, Mr. Chairman, we already have.  We are proposing that you focus on low capacity access.  And our proxy actually is once we are forborne at retail, we are forborne at wholesale.

1LISTNUM 1 \l 18288            It is actually the most conservative proxy that could be developed, for those services, mind you, low capacity access.

1LISTNUM 1 \l 18289            We could have put forward a proxy that was less conservative by saying if a competitor enters a wire centre and connects with DS‑0 or DS‑1 equivalent networks, two buildings, ten buildings, 20 per cent of the buildings then were forborne, but we went all the way to retail forbearance, equates to wholesale forbearance.  That's our proxy.


1LISTNUM 1 \l 18290            THE CHAIRPERSON:  Okay.  Thank you very much.

1LISTNUM 1 \l 18291            I see it is 10 o'clock.  Let's take a 15‑minute break.

1LISTNUM 1 \l 18292            Thank you.

‑‑‑ Upon recessing at 1006 / Suspension à 1006

‑‑‑ Upon resuming at 1024 / Reprise à 1024

1LISTNUM 1 \l 18293            THE SECRETARY:  Be seated please.

1LISTNUM 1 \l 18294            THE CHAIRPERSON:  Okay, Madam Secretary, go ahead.

1LISTNUM 1 \l 18295            THE SECRETARY:  Thank you, Mr. Chairman.

1LISTNUM 1 \l 18296            We will now proceed with Rogers Communications, Mr. Englehart.

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 18297            MR. ENGLEHART:  Thank you very much.

1LISTNUM 1 \l 18298            Mr. Chairman, with me today are Suzanne Blackwell and Lori Dunbar.


1LISTNUM 1 \l 18299            Most of the parties to this proceeding are in agreement that the ultimate objective should be facilities‑based competition, that facilities‑based competition is the objective that we are trying to achieve.  And in the residential market you could argue you are already there, you have the competition between cable and telephone.  If you want to rely on facilities‑based competition in the residential market, you can.

1LISTNUM 1 \l 18300            But there is a problem in the business market, a huge problem, and that is that most buildings have only one company's wires into that building, so you just don't have anything like the residential market in the business market.  And you have sporadic pockets of buildings that have two companies' wires or sometimes even three companies' wires into a building, but they really are sporadic pockets.

1LISTNUM 1 \l 18301            This is not a uniquely Canadian problem.  It is not as though this is some failing of the Canadian system.  It is true in virtually every country in the world.  In the United States it is true where the general accounting office found that in the downtown cores of the really big American cities like New York and Los Angeles only 6 per cent of small business and 25 per cent of large business buildings have competitive wires going into them.  So that is the problem, that is what we are here to solve.


1LISTNUM 1 \l 18302            What is the cause of the problem? How does this come about?  People presented to you maps and diagrams showing that there were fairly extensive metropolitan area networks owned by competitors in some cities.  The problem is getting from those metropolitan are networks into the buildings, the high cost of the laterals.  That is the evidence that has been presented to you in this proceeding.

1LISTNUM 1 \l 18303            And building those laterals is very expensive for competitors.  For the incumbent, first of all, the cost of getting into that building is somewhat lower but, more importantly, they have got all the customers, they are the incumbent.  You can pay for those facilities when you have got 100 per cent of the revenue.  I am not saying there is no risk, I am saying the risk is fairly low.

1LISTNUM 1 \l 18304            But if you are a new entrant you have to build that expensive lateral.  Maybe you only have one customer, maybe you spend $100,000 on a fibre lateral, you have got one customer, you are never going to recoup your investment unless you get other customers in the building, and you might not.  So there is a lot more risk, that is the cause of the problem and that is what we are here to solve.


1LISTNUM 1 \l 18305            So what are the solutions to the problem?  Some parties seem to feel that technology can solve all of our problems.  We have got Inukshuk, we have got new technologies coming on cable networks and these new technologies are going to solve all of our problems if we only let them.  This is, in our submission, wishful thinking.

1LISTNUM 1 \l 18306            Competitors have been building facilities in business locations in Canada for at least the past 17 years.  And there has been lots of new wireless technologies that have come and gone, there have been lots of new ideas and still, for the most part, those access facilities are fibre or copper.  So counting on technology to bail us out is highly speculative.

1LISTNUM 1 \l 18307            Second, we can just assume the problem away.  The phone companies argue that, well, Rogers is already in all of these buildings, the competitors are already in all of these buildings.  There is no problem, if they are not in them they are right beside them.  This is not solving the problem, this is assuming the problem away.  You have the information from the DNA proceeding, from the forbearance applications.  You know how many of these buildings have competitive facilities in them.


1LISTNUM 1 \l 18308            The pattern of distribution of competitive facilities is based on engineering economics.  If you have got a big building with lots of customers that have lots of expensive high‑bandwidth services a competitor can afford to building a facility into that building.  In most buildings you don't, so in most buildings there is no second wire.

1LISTNUM 1 \l 18309            Rogers, in our operating territory, has 1,850 buildings served by fibre and about 1,400 of those came with the recent Group Telecom acquisition.  That is pretty good, we are making progress and we are, you know, committed to driving our facilities as much as we can into buildings.  But it still doesn't solve the problem, we are still a long way away.  As Mr. Hatfield said, you cannot repeal the law of economies of scale.

1LISTNUM 1 \l 18310            Bell argues, well maybe Rogers doesn't have a lot of fibre in the buildings, but it has coax and new technologies are going to enable that coax to do wonderful things.  We estimate that we have coax into about 5 per cent of the building locations.  Now, Bell has stated during their cross‑examination of the Rogers panel that Rogers was present in 90 per cent of 187 large downtown Ottawa office buildings with coax. In fact, 26 of these buildings were apartment buildings or hotels.  In the remainder we had fibre in 11 of the buildings and coax in 75 per cent.


1LISTNUM 1 \l 18311            But those facts don't change the fundamental problem of the expensive lateral.  For example, in one of the buildings where the coax went in most recently we checked our records and there the landlord paid us a $50,000 installation fee to put our coax into the building so that the landlord's tenants could subscribe to our cable and internet services.  And these expensive installation charges for cable television in business buildings are not uncommon, either paid for by the landlord or paid for by the first tenant that wants the cable television service.

1LISTNUM 1 \l 18312            Even once we have coax into the buildings it doesn't help us that much for providing telecom services.  If you have a $10,000 lateral for coax, because the coax laterals, as you know from the evidence filed before you, are much cheaper than the fibre laterals, you know, you might be able to support three or four internet services, a couple of phone lines, that is not going to pay for the cost of that lateral.

1LISTNUM 1 \l 18313            And the sort of troubling thing is a lot of the buildings where we do get someone to pay because they want cable TV in these large office buildings, many of the tenants are large and medium businesses and the coax really doesn't do much for those businesses on telecom services. It is really a way of providing internet service today, it is really a way of providing single line phone service.


1LISTNUM 1 \l 18314            There are some technologies underway for multi‑line hunting, so we hope in the near future that coax can be used to provide service for small business and even some medium businesses.  But it will be a long time before it can provide services for big business or large or medium businesses.

1LISTNUM 1 \l 18315            As Mr. Watt explained on the stand, the T1 emulation on coax may never be cost effective.  So coax, although it will help, although it is in some of the buildings, although it will nibble away at the problem, it is not the solution of the problem.

1LISTNUM 1 \l 18316            So there is no technology fix, we can't assume the problem away, we have to look at some regulatory solutions.  What are those regulatory solutions?

1LISTNUM 1 \l 18317            Well, one solution is what I call hope for the best.  If a facility is duplicable the Commission should walk away and hope for the best.  And by duplicable, in their evidence before this proceeding, the incumbents meant, well Bell meant, if you can build a wire into a building in a market it is duplicable in the whole market. If you can build a wire into the Toronto‑Dominion Centre, it is duplicable for an industrial park in Etobicoke.


1LISTNUM 1 \l 18318            TELUS goes farther.  They say if you can build a wire anywhere in the band, in the entire band, then it is duplicable throughout the entire band.  That is an attractive position if you are the incumbent.  You want market forces to rule, you want the Commission to walk away because you will have the whole market to yourself.

1LISTNUM 1 \l 18319            And particularly for voice services, which have been deregulated, you can price largely in an unrestrained fashion.  So when you say that everything is in the nonessential bucket it is not a realistic proposal, it is not a solution of the problem.

1LISTNUM 1 \l 18320            The second thing you could do is what the Bureau has suggested, which is regulate retail rates.  And for voice, that option has been taken away from you by the government.  They have clearly said that they are going to deregulate based on leased facilities.  You could do it for data.

1LISTNUM 1 \l 18321            We think the government has sent you a powerful message.  You know, the direction really doesn't, despite what everyone says, the direction is really very unbiased in what it says to the Commission.  The direction says to you, take a look at those essential facilities and figure out what you think is best.


1LISTNUM 1 \l 18322            And people say, well, you should be in formed by other words in the direction.  Well, we think you should also be informed by the forbearance decision.  In the forbearance decision the government said, given a choice between retail regulation and the continuance of unbundled facilities, we would prefer the unbundled facilities.  That is what the government said to you in the forbearance decision.  We think you should take some guidance from that.

1LISTNUM 1 \l 18323            Now, one possibility that arises from the fact that the voice market has been forborne based on those essential facilities is that you could classify the facilities as mandated conditional non‑essential, which is your bucket four in CRTC Exhibit 4.

1LISTNUM 1 \l 18324            We don't think that is the right approach because the facilities were deregulated ‑‑ or the services that were deregulated were voice services, so someone is going to say:  Well, we have got the restriction on use doctrine, the restriction on use concept, and that means if you lease those facilities, you can only use them for voice.


1LISTNUM 1 \l 18325            So classifying them as mandated conditional non‑essential is a problem.  It will mean, I suspect, that competitors can't use them for data and that will take a very difficult business case and make it even more dreary.

1LISTNUM 1 \l 18326            A better way to look at it is that if the facilities are needed by competitors in order to protect retail customers, that is a pretty strong indication that they are not really duplicable and they should be classified as essential or, in our view, conditional essential.

1LISTNUM 1 \l 18327            With that classification, competitors can use them for both voice and data.  So we think that is an approach that is more consistent with the government's forbearance order and that the government considers competition using these unbundled facilities to be legitimate.

1LISTNUM 1 \l 18328            So now we get really to the heart of this proceeding, which is:  How would unbundled facilities regulation work?

1LISTNUM 1 \l 18329            There are really three ways of doing it.  You can have ex ante tariffs with a review hearing, you can have an ex post process or you can have proxy rules.  Proxy rules say that the tariffs will exist until certain observable, verifiable criteria have been met.


1LISTNUM 1 \l 18330            So what are the problems with ex ante?  The problem with ex ante is really the review hearing.  It creates too much uncertainty.  Competitors can't build a business knowing that in three years there will be a review hearing.  In three years the tariffs might go away.

1LISTNUM 1 \l 18331            Primus said in their evidence that just the fact of this hearing has caused them to put their activities on hold.  Markets can't tolerate that sort of uncertainty.  You need to impose a set of rules and walk away and let the market come to grip with those rules or you are never going to have a market.

1LISTNUM 1 \l 18332            The other thing you could do is ex post regulation.  There, no facilities would be mandated up front but the Commission will have an ex post process if the ILEC and the competitors cannot agree on a rate.

1LISTNUM 1 \l 18333            Bell, at least in their evidence before today, recommended this approach, although they did say on the stand that there really were no essential facilities, so I thought it was a bit of a hollow offer.  But they also go on to say that whether a facility is essential or not, they will always have an incentive to offer it to competitors.


1LISTNUM 1 \l 18334            Dr. Taylor actually said in his evidence that it would be irrational for a supplier, a wholesaler, to cut off their wholesale customers, but after a long, slightly painful cross‑examination, he admitted that it was perfectly rational for a supplier that had upstream and downstream dominance to deny access to wholesale customers.

1LISTNUM 1 \l 18335            And Bell says:  Well, we are really good to our wholesale customers in the long distance market.  Yes, but there are already multiple facilities‑based long distance competitors.  So that example isn't very relevant.

1LISTNUM 1 \l 18336            The fact is if you have a huge retail share in the local market, it is perfectly rational to deny your facilities to wholesale customers because you will then pick up the end users as your retail customers.  There is no rationale, there is no reason why a rationally behaving wholesaler would behave otherwise.

1LISTNUM 1 \l 18337            The final problem with the ex post solution is it is the same problem as the review hearing.  It injects too much uncertainly into the process to allow a competitive market to develop.  You don't know what you are going to get and even when you get it, you don't know if it is going to be renewed.

1LISTNUM 1 \l 18338            In our submission, the only practical solution is the imposition of proxy rules.


1LISTNUM 1 \l 18339            The Competition Bureau agreed that imposing proxy rules was the best approach.  Here is what they said:

"The best outcome for this proceeding would be the development of accurate proxy rules that identify when certain facilities, for example, access‑differentiated by capacity and transport, are likely to be essential.  These proxy rules would base the determination of whether a facility is essential ex ante on easily observable and verifiable structural characteristics.  These structural characteristics would encompass variables that measure or are correlated with relevant factors such as demand and cost as well as indicating the markets, product and geographic, in which they are applicable." (As read)


1LISTNUM 1 \l 18340            Now, the Bureau said that they didn't have the data to effectively set proxy rules but you do.

1LISTNUM 1 \l 18341            Proxy rules would assign the mandated facilities into your bucket two.  So the facilities are mandated at regulated rates until observable, verifiable conditions are met.  Proxy rules give the market participants certainty and allow the essential facilities regime to deregulate itself.

1LISTNUM 1 \l 18342            So we have modelled our proposal on the FCC's proxy rules.  What did the FCC look at?

1LISTNUM 1 \l 18343            They looked at two things:  the number of lines in each wire centre and the number of competitive suppliers of facilities.

1LISTNUM 1 \l 18344            The number of lines is a proxy for the density of business customers.  With sufficient density, there are revenue opportunities to construct lateral facilities.

1LISTNUM 1 \l 18345            The number of competitors shows two things.  It shows that competitors have been able to cost‑effectively build those laterals and it shows that there is a viable market for wholesale services without Commission involvement, so the Commission can walk away in those wire centres.

1LISTNUM 1 \l 18346            One of the questions that the Rogers panel received was:  Well, why do you need four competitors, why not two?


1LISTNUM 1 \l 18347            The difference is that in the business markets, unlike the residential markets, it is not ubiquitous, every competitor doesn't go into every building.  You might have 1,000 buildings and four competitors each going into 40 buildings.  So now with four you have got a better chance that you are going to have someone prepared to build a lateral into a building.

1LISTNUM 1 \l 18348            Why co‑located?  The FCC said co‑located.  Well, that is to show that they can really provide access and transport services.

1LISTNUM 1 \l 18349            In the Canadian context, insisting on co‑location may be unnecessary.  The point is that that competitor has to be able to provide access and transport services.  If they have wired up a few public schools out in the suburbs, they are probably not really helpful as a provider of access and transport services.  If it is a hydroelectric utility with a telecom arm that has a metropolitan area network and laterals into big buildings, they probably should count whether they are co‑located or not.


1LISTNUM 1 \l 18350            So that is the FCC rule.  What are the facilities that the FCC applies that rule to?  It is unbundled loops, it is DS‑1s and it is DS‑3s.  They also included dark fiber for transport in small wire centres.  But it is our submission that those are the right facilities.  Those are the facilities that competitors need to get into the buildings.

1LISTNUM 1 \l 18351            Mr. Hatfield's evidence explained the protocol stack model.  If you have got the DS‑1s, if you have got the DS‑3s, if you have got the unbundled loops, competitors can add their own Ethernet, they can add their own IP.  We don't need that from the incumbents.

1LISTNUM 1 \l 18352            It means that the incumbents don't have to provide next‑generation facilities, so they would have no disincentive to build them.  And it means that there is very little risk of stranded investment because those loops and those DS‑1s and those DS‑3s for the most part, they are already there.

1LISTNUM 1 \l 18353            So we think that works but there are other proxy rules that the Commission could use if it wanted to.

1LISTNUM 1 \l 18354            In retail DNA forbearance, your rule was that if 30 percent of the buildings have a competitor's fiber facilities, you will forbear.  That rule would work for wholesale as well.


1LISTNUM 1 \l 18355            We were asked the question, the Rogers panel was asked:  Well, what if that rule led to retail forbearance while your rule led to continued wholesale regulation?

1LISTNUM 1 \l 18356            That is a theoretical problem.  We think in most cases the wire centres are going to be the same wire centres.  But if the Commission were more comfortable with the proxy rule in the DNA retail forbearance decision, it could use that rule.

1LISTNUM 1 \l 18357            The key is that proxy rules have to be easily observable and verifiable.  The FCC's rule really is.  You know how many co‑located competitors there are.  You know how many lines there are in a wire centre.  The number of buildings with more than one supplier is a bit more problematic and the Commission would have to be very careful.

1LISTNUM 1 \l 18358            But the overall message that we would give to you is the only way to move forward, consistent with sound public policy, is with a proxy rule for essential facilities.

1LISTNUM 1 \l 18359            Now, I want to speak for a moment about the residential marketplace.


1LISTNUM 1 \l 18360            The residential market is very different from the business market because we do have competition from cable companies.  If you wanted to strictly apply our test or anyone's test you could say:  Well, that facility is duplicable.  The cable company has already duplicated it, for heaven's sakes, or duplicated the same functionality.  So we don't think there are any essential facilities in the residential market.

1LISTNUM 1 \l 18361            You could, in our submission, take a more flexible interpretation of the test.  You could say:  Well, it is really only the cable company that can duplicate those facilities in the residential market.  No one else can duplicate it.

1LISTNUM 1 \l 18362            So with a flexible interpretation we believe you could classify those services as non‑duplicable and therefore they should be mandated as long as they would substantially increase competition.

1LISTNUM 1 \l 18363            Well, do they?

1LISTNUM 1 \l 18364            The Bureau said:  Well, if you look at the total number of unbundled loop services in Canada as a proportion of the total number of loops, we don't think it is a substantial form of competition.  We think it's more appropriate to look at the proportion of loops in those cities where it's actually offered.

1LISTNUM 1 \l 18365            When we bought Call‑Net it had 400,000 residential loops and 70,000 business loops.  We have migrated a lot of the residential loop customers to our cable platform where they live in our cable territory, so there are less now.


1LISTNUM 1 \l 18366            But if you look for example at Vancouver where we don't have a cable system, we have 60,000 customers using those loops.  That's 10 per cent of the market where we can offer the service.  That is an important form of competition for those customers.

1LISTNUM 1 \l 18367            And the costs of continuing to mandate those facilities are pretty small.

1LISTNUM 1 \l 18368            Do you have to worry about a failure to incent facilities‑based competition?  No, there already is facilities‑based competition.  The cable companies have already entered.

1LISTNUM 1 \l 18369            Do you have to worry that the incumbents won't have an incentive to build advanced facilities?  Of course not.  They don't have to provide those advanced facilities, they only have to provide the loops.

1LISTNUM 1 \l 18370            Do you have to worry about the regulatory costs?  You have already incurred them.  We already have the tariff, we already have the rules, we already have the collocation rooms.  We have done it.  It's already in place.

1LISTNUM 1 \l 18371            And bear in mind that virtually every major industrialized country in the world, including the United States of America, mandates those residential loops.


1LISTNUM 1 \l 18372            That provides a segue for me into the issue of benchmarking what you do against the other countries.

1LISTNUM 1 \l 18373            It is sort of easy to get fixated on a particular definition and let that definition drive you to a certain outcome.  But instead of doing that, or in addition to doing that, we would say you should look at what other countries are doing.  We think that provides a sanity check.

1LISTNUM 1 \l 18374            In the forbearance proceeding the phone companies, the incumbents said:  How come Canada is the only country that has a retail regulation?  Why Canada?  Why can't the Canada be more like its trading partners?

1LISTNUM 1 \l 18375            Like the joke about the proud mother watching her son marching in the parade:  Why is my little Johnny the only one marching in tune?

1LISTNUM 1 \l 18376            We can ask the same question about unbundled loops:  Why is Canada the only one that should be marching in tune?  If the United States mandates unbundled loops for residential and business markets there might be an important lesson there.


1LISTNUM 1 \l 18377            Much was made of the fact that in Omaha 9 of 24 wire centres have been deregulated for unbundled facilities and 5 of 11 wire centres in Anchorage, and the Bell panel indicated that they believed there would be more widespread deregulation based on what the FCC was doing.

1LISTNUM 1 \l 18378            The FCC redacts all the reasons from its forbearance decision so it's very hard to know what they are saying.  But we did find paragraph 43 of the Omaha decision where they said that mandating facilities was no longer necessary because:

"... the majority of customers have selected carriers other than Quest".  (As read)

1LISTNUM 1 \l 18379            In other words, in the U.S. they don't mandate facilities when the competitor actually has more retail customers than the incumbent.

1LISTNUM 1 \l 18380            Well, that seems fair, but it indicates that the extent of the forbearance of mandated loops will be fairly limited in the United States.

1LISTNUM 1 \l 18381            Bear in mind, the United States is a country most like us.  Their telecom market is the most like ours, their economy is the most like ours and the FCC requires DS‑1 and DS‑3 facilities, and DS‑0 facilities for access and transport at regulated rates based on a long‑run incremental cost.


1LISTNUM 1 \l 18382            Bell's own evidence shows that once the Americans got rid of the UNE‑P and went to that regime there has been strong growth of competitive facilities, strong growth of incumbent facilities, strong growth of competition.  So in the midst of all these theoretical arguments you have a real live laboratory experiment in the United States.

1LISTNUM 1 \l 18383            The regime that we are asking you to impose in Canada is working very well in the United States and we believe that's an important factor for you to include in your considerations.

1LISTNUM 1 \l 18384            The telecom market is working very well in Canada, too.  There is considerable growth and investment by both competitors and incumbents.

1LISTNUM 1 \l 18385            What the Commission needs to do is add some certainty to that market so participants know how to plan and grow, and you need a way to transition away from unbundled facilities once facilities‑based competition is effective.

1LISTNUM 1 \l 18386            We submit that properly designed proxy rules will provide you with the necessary regulatory structure.

1LISTNUM 1 \l 18387            THE CHAIRPERSON:  Thank you very much, Mr. Engelhart.


1LISTNUM 1 \l 18388            I found your explanation very clear and very easy to follow when you talked about the business market.  Frankly, you lost me in the residential market.

1LISTNUM 1 \l 18389            Can you just tell me what exactly are you doing?

1LISTNUM 1 \l 18390            Go to page 15, the top paragraph, you said:

"A more flexible interpretation of the tests in there would be in the public interest."  (As read)

1LISTNUM 1 \l 18391            In effect, what are you suggesting in the residential market?

1LISTNUM 1 \l 18392            MR. ENGELHART:  In the residential market we are saying that until a third technology really can come along ‑‑ or service provider can come along that could provide a competitive alternative in the residential market, you should continue to mandate unbundled loops.

1LISTNUM 1 \l 18393            You don't have to.  You could say:  Look, a duopoly is just fine for us, cable telco competition seems to be working really well right now, we think it will continue to work really well, we don't think we need the unbundled loops.


1LISTNUM 1 \l 18394            It's the nature of duopolies, when they work they work really well because the two participants kind of slug each other with body blows.  The point is that you might not be comfortable with that duopoly and, unlike the business market, the fact that someone is duplicated is not evidence that a third or fourth or fifth player will duplicate.

1LISTNUM 1 \l 18395            So if you look at duplicability that way, and I suppose a really, really what I'm saying is you should define duplicability as triplicability, you should say that someone else can make those ‑‑ some third player can make those facilities work, or make facilities work.  Until you have gotten to that point you should keep mandating those loops.

1LISTNUM 1 \l 18396            THE CHAIRPERSON:  So it was not a reference to the difference between cable companies?  Some of them, like your company, is already providing telephony while others have not done it yet, especially the small ones.

1LISTNUM 1 \l 18397            MR. ENGELHART:  They will.  I mean, they will sooner or later.  I don't think we have to worry too much about cable companies doing that because just to survive against satellite they are going to have to put in fibre and they are going to have to have a robust internet service, and once they do that they will provide telephony.

1LISTNUM 1 \l 18398            THE CHAIRPERSON:  All right.


1LISTNUM 1 \l 18399            Going back to your proxy test in the business, I understood what you said about collocation, but you are basically saying they have to be four competitors.  That is your basic test?

1LISTNUM 1 \l 18400            MR. ENGELHART:  Yes.  That is the proxy test that the FCC has.  We think it works.  Other proxy tests would work, but we think that one works well.

1LISTNUM 1 \l 18401            If one of them provided ubiquitous facilities into every business building, then four would seem excessive.  In the real world they don't.  In the business market you will have the hydro going into a few buildings, Allstream going into a few buildings, Rogers going into a few buildings, TELUS going into a few buildings, and if you have four of them you have probably got a workable market.

1LISTNUM 1 \l 18402            THE CHAIRPERSON:  If one of them is a utility telco which actually does go into all the buildings, then two would be enough, as far as I can see?

1LISTNUM 1 \l 18403            MR. ENGELHART:  The utelcos don't go in every building, but if they did I agree with you that four would be excessive.

1LISTNUM 1 \l 18404            Utelcos go into fairly few buildings as a matter of fact.


1LISTNUM 1 \l 18405            THE CHAIRPERSON:  That's obviously a question of fact for you to verify, yes.

1LISTNUM 1 \l 18406            MR. ENGELHART:  Yes.

1LISTNUM 1 \l 18407            THE CHAIRPERSON:  Commissioner Duncan, did you have something?

1LISTNUM 1 \l 18408            COMMISSIONER DUNCAN:  I think I would just like to talk a bit more about the business market.

1LISTNUM 1 \l 18409            I'm just wondering, on what we heard this morning from Bell with respect to the Ottawa downtown core, that you are in 78 per cent of the major buildings in downtown, but I think your comments here would indicate that's mostly with co‑ax.

1LISTNUM 1 \l 18410            MR. ENGELHART:  It's with co‑ax.

1LISTNUM 1 \l 18411            What Bell said this morning is:  If you can pull co‑ax into the building, well, then you can pull fibre into the building.

1LISTNUM 1 \l 18412            That is a complete non sequitur.  The fact that you have co‑ax in the building says nothing whatsoever about the cost of putting fibre into the building.  We have given you, in confidence, costing studies that show what it costs to pull fibre in and those costs don't materially change just because there happens to be co‑ax in the building.


1LISTNUM 1 \l 18413            COMMISSIONER DUNCAN:  I noticed you are saying that you are serving 1,850 buildings with fibre, 1,400 of them came from the Group Telecom.  So that doesn't on the surface seem to be very many buildings in the whole of your serving territory.

1LISTNUM 1 \l 18414            MR. ENGELHART:  No, it's not.  A lot of these fibres from Group Telecom and Metronet were put in by companies that subsequently failed.  So the track record for pulling those fibres in has not been great, but it is still growing and people are still doing it where they can.

1LISTNUM 1 \l 18415            COMMISSIONER DUNCAN:  I'm just having difficulty wondering how you would expect that we would end up with four competitors, or up to four competitors.  I guess your point is you have to say four because it is highly unlikely that you will have four.

1LISTNUM 1 \l 18416            But I'm wondering how many businesses can reasonably expect to have a competitive solution?

1LISTNUM 1 \l 18417            MR. ENGELHART:  Well, in the retail DNA preceding you found that there were 18 wire centres in Bell's territory that had 30 per cent of the buildings with fibre in them, competitive fibre in them.  Thirty per cent of the buildings in the entire wire centre.  That is a fairly huge number.


1LISTNUM 1 \l 18418            I would guess that in those same 18 wire centres you probably do have four competitors.  You probably have Rogers and MTS and the Utelco and probably TELUS.  So I think it's not unrealistic to think there's going to be four, and I think that the track record of those 18 wire centres indicates that it's growing.

1LISTNUM 1 \l 18419            Now, how fast it's going to grow and where it's going to end up is something that, if we knew that, we probably wouldn't be here in the regulatory business.  But I do think that there is growth.

1LISTNUM 1 \l 18420            And ultimately, facilities‑based competition is the goal for most companies because that's where you make the biggest margins.  So people will have an incentive to get their facilities into those buildings.

1LISTNUM 1 \l 18421            COMMISSIONER DUNCAN:  And again, your transition period was how long, your recommendation on the transition?

1LISTNUM 1 \l 18422            MR. ENGELHART:  Five years, but that's really for the services that are considered to be non‑essential, which, for us, are the Ethernet and IP services.


1LISTNUM 1 \l 18423            For the DS‑1s and the DS‑3s, rather than having a transition period, we believe in the proxy rule or mandated conditional essential, in other words, when the market conditions are right to deregulate, there's verifiable objective data that caused those things to be automatically deregulated.

1LISTNUM 1 \l 18424            COMMISSIONER DUNCAN:  Okay, thanks for the clarification.

1LISTNUM 1 \l 18425            Thanks.

1LISTNUM 1 \l 18426            THE CHAIRPERSON:  And where there is a phaseout of five years, how do you feel about pricing increases that have been suggested by Bell, for instance?

1LISTNUM 1 \l 18427            MR. ENGELHART:  Seems a bit like rubbing salt in the wound to me.  I mean, if you have to get out in five years, you are going to get out, and in many cases you are going to need that five years to either sell those subscribers or figure out some other plan.  So I think the price increase is a wealth transfer, it probably doesn't have any efficiency impact.

1LISTNUM 1 \l 18428            THE CHAIRPERSON:  Thank you.

1LISTNUM 1 \l 18429            Commissioner del Val.

1LISTNUM 1 \l 18430            COMMISSIONER del VAL:  Just going back to your proxy model for business market, now why isn't three in a wire centre enough?


1LISTNUM 1 \l 18431            MR. ENGELHART:  Well, I mean, I don't think that there's a magic to the proxy rule that the FCC took.  They looked at the data, they looked at the wire centres, they looked at the extent of competition, and they were of the view that four was the right number.

1LISTNUM 1 \l 18432            You might look at the Canadian market and you might say, Well, you know what, there aren't the same activities of utelcos in the U.S. as there are in Canada, so we think in Canada it's three.

1LISTNUM 1 \l 18433            What we said at the beginning of this proceeding is we think that we will put the FCC rules as a stake in the ground, and then we will ask questions of the other parties to try and get some clarification on whether this is the right rule.

1LISTNUM 1 \l 18434            We didn't really get much on the record in response to those questions, so it's very hard for us to know what the right rule is.  It's probably only the Commission that has the data.


1LISTNUM 1 \l 18435            A priori, you wouldn't necessarily rule out three, but I think the question you have to ask yourself is:  Does the presence of those competitors indicate that people are building laterals in significant numbers in those wire centres; and secondly, does the presence of those competitors give us some confidence that if there's no more mandated facilities there will be a thriving wholesale market for those facilities?

1LISTNUM 1 \l 18436            So whether is three or whether it's four, that's the conclusion you are coming to.  We would be more comfortable with four, but we don't really have the data to prove that to you.

1LISTNUM 1 \l 18437            COMMISSIONER del VAL:  Okay, and you don't think that you will have further data say come your final written argument stage?

1LISTNUM 1 \l 18438            MR. ENGELHART:  No, but...

1LISTNUM 1 \l 18439            COMMISSIONER del VAL:  Okay.

1LISTNUM 1 \l 18440            MR. ENGELHART:  No, we don't think so, but as we said in our argument here, another possibility would be to get away from four competitors and so many wires in a wire centre and move to your retail DNA forbearance test, which came out after we filed our evidence, and that test says 30 percent of the buildings have competitor fibre.  That seemed to be the same test that I think I heard Bell urging on you this morning, so that's another way of cracking open the problem.

1LISTNUM 1 \l 18441            COMMISSIONER del VAL:  Thank you.

1LISTNUM 1 \l 18442            THE CHAIRPERSON:  Or you could use them alternatively, right, one or the other ‑‑

1LISTNUM 1 \l 18443            MR. ENGELHART:  Yes, you could, sir.


1LISTNUM 1 \l 18444            THE CHAIRPERSON:  ‑‑ because they are not exclusive, right?

1LISTNUM 1 \l 18445            MR. ENGELHART:  Correct, Chair.

1LISTNUM 1 \l 18446            THE CHAIRPERSON:  Right.

1LISTNUM 1 \l 18447            Okay, thank you very much.

1LISTNUM 1 \l 18448            Madam Secretary.

1LISTNUM 1 \l 18449            THE SECRETARY:  Thank you very much.

1LISTNUM 1 \l 18450            I'm now calling, please, the TELUS Communications Company panel.

‑‑‑ Pause

1LISTNUM 1 \l 18451            THE CHAIRPERSON:  Mr. Rogers.

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 18452            MR. ROGERS:  Good morning, Mr. Chairman, and members of the panel.

1LISTNUM 1 \l 18453            Phil Rogers for TELUS, and with me is Stephen Schmidt and Dr. Lee Selwyn.

1LISTNUM 1 \l 18454            This morning, Mr. Chairman, we will be doing three things:  we will provide the Commission with a short overview of TELUS's proposals in this proceeding, we will identify areas on which there is near consensus; and finally, we will provide our views on remaining open issues.


1LISTNUM 1 \l 18455            Those with long memories know that TELUS has been deeply involved in and committed to competition in local telecom markets since at least 1993.  We consider this proceeding to be a major opportunity for the Commission.  More particularly, it is an opportunity to establish a long‑term, sustainable framework that will shift the focus of competitive activity away from the hearing room to where it really belongs:  on competing for customers, developing services, innovating and investing in more and better facilities.

1LISTNUM 1 \l 18456            In our view, Mr. Chairman, the TELUS proposals respond to several important objectives of the Commission: they are simple and pragmatic, they reflect the realities of the Canadian marketplace and they are relatively easy for the Commission to administer.

1LISTNUM 1 \l 18457            Before turning to the issues, we will very briefly review some of the key elements of our proposal.  We propose that the Commission define an "essential facility" as follows:  "a facility, function or service that satisfies all three of the following criteria:  it is monopoly controlled; secondly, competitors require it as an input to provide services; and third, competitors cannot duplicate it economically or technically".


1LISTNUM 1 \l 18458            This test, Mr. Chairman, is not new to the Commission, in fact, it is very similar to the test that the Commission established in Decision 97‑8.  You will recall that in that decision the Commission concluded that, and I quote:

"...ILECs should generally not be required to make available facilities for which there are alternative sources of supply or which CLECs can reasonably supply on their own."

End quote.

1LISTNUM 1 \l 18459            Like the Commission's own 97‑8 test for an essential facility, and unlike the tests proposed by many parties in this proceeding, the TELUS test does not rely on whether a particular supplier is dominant.  The Commission expressly dealt with that question in Decision 97‑8 when it concluded, and again I quote:


"...the Commission considers it inappropriate to define an essential facility as a facility that is provided by a dominant firm with market power because it would require facilities to be treated as essential even in the face of the demonstrated feasibility of alternative provision, including self‑supply."

End quote.

1LISTNUM 1 \l 18460            In TELUS's view, the Commission's approach was correct then, and it remains correct today.

1LISTNUM 1 \l 18461            In regards to the second limb of the test, it does not matter that a particular competitor may require the facility.  What matters is whether competition is enabled, not that any particular competitor requires access.  Excessive mandatory unbundling to accommodate any potential entrant will only raise costs and promote inefficient entry.  That results in higher prices and harm to consumers.

1LISTNUM 1 \l 18462            The third limb, duplicability, is a critical part of the test.  This question should be considered through the lens of whether an efficient competitor could economically duplicate a facility.  It is readily apparent from the record that there are very few facilities that have not already been duplicated.  Even where they have not been duplicated in a given geographic area, they could generally be economically duplicated.


1LISTNUM 1 \l 18463            MR. SCHMIDT:  When the accepted definition of an essential facility is applied to the current list of wholesale services that TELUS is mandated to provide, two services present themselves as essential: basic listing interchange file service and directory file service.  These services would be placed in the Category 1 essential bucket of the Commission's six‑category classification system.

1LISTNUM 1 \l 18464            With the exception of those services falling in the public good category and the interconnection classification, all other existing competitor services and facilities would be placed in Category 3, the non‑essential services, subject to phaseout.

1LISTNUM 1 \l 18465            While public good facilities or services, such as 911 service, and interconnection services do not, strictly speaking, meet the definition of an "essential facility", there appears to be broad agreement among the parties on the continued need to mandate these arrangements.

1LISTNUM 1 \l 18466            On the question of pricing, TELUS recommends that regulated prices for essential facilities be set at fully compensatory rates.  By this TELUS means that rates would reflect actual company‑specific Phase II costs, plus a mark up to recover the proportionate share of fixed common costs and the embedded cost differential.


1LISTNUM 1 \l 18467            On the question of periodic reviews, in TELUS's view there will be no need for the Commission to undertake periodic reviews of essential facilities at regular intervals.  Any party could, of course, apply to the Commission to change the classification of a facility at any time should the facts warrant this.  The burden of proof would fall on that party seeking the change in classification.

1LISTNUM 1 \l 18468            On the question of the transition period, TELUS anticipates that mandated sharing of non‑essential facilities would be phased out at the end of a transition period.  In general, the length of this transition period would be three years, although, in our view, a longer transition of up to five years is warranted for certain classes of facilities such as access facilities.


1LISTNUM 1 \l 18469            During the transition, tariffed rates would be gradually adjusted to fully compensatory levels.  While tariffs would remain in place for non‑essential services during the transition period, suppliers and purchasers of non‑essential facilities would also be entitled to negotiate mutually acceptable commercial arrangements during the transition period, comforted by the fact that the backstop of compulsory supply and price controls exist for these non essential services during the transition.

1LISTNUM 1 \l 18470            At the end of the transition, all non essential facilities would be forborne pursuant to section 34.1 of the Telecommunications Act.

1LISTNUM 1 \l 18471            So that is TELUS' proposal in a nutshell in this proceeding.

1LISTNUM 1 \l 18472            The next subject we want to touch on is those matters where significant consensus is apparent on the record.

1LISTNUM 1 \l 18473            We note that in spite of the great diversity of parties in this hearing room, in spite of the great diversity of views, there are a number of key issues on which there appears to be near consensus or at least very broad support.

1LISTNUM 1 \l 18474            Specifically, TELUS has identified six such issues where there appears to be near consensus.

1LISTNUM 1 \l 18475            First, there was a recognition by most parties that the Commission should adopt a definition of essential facilities that provides as much clarity and as much guidance as possible to the industry.  If the players are to be incented to make long‑term investments and enter into long‑term supply arrangements with facility owners, then all players need to know the rules of the road.


1LISTNUM 1 \l 18476            In short, they need to know with palpable certainty which facilities will be subject to compulsory unbundling and compulsory pricing rules and which facilities will be subject to commercially determined unbundling decisions and commercially determined pricing decisions.

1LISTNUM 1 \l 18477            Clarity on these points will help guide business decisions.

1LISTNUM 1 \l 18478            A second point of consensus is that most parties to the proceeding acknowledge that the policy direction calls for a narrowing of the scope of mandated supply.  There is little debate on that fact.  Rather, any residual debate is around the pace of the phase‑out of mandated supply or the precise scope.  But there is general recognition that there will be a narrowing of the scope of mandated supply.

1LISTNUM 1 \l 18479            A fourth point of consensus that has emerged is that while there are various proposals on the table before you for a transition period, consensus seems to be clustering around a three‑to‑five‑year transition period.


1LISTNUM 1 \l 18480            Importantly, as well, there seems to be a generalized recognition that there should be a hard stop at the end of the transition period.  This is critical to create a sense of certainty for all players in the industry, to make it, in short, vivid and obvious as to where the rules are going and what the rules are going to be.  Otherwise, we may be trapped in a never‑ending transition.

1LISTNUM 1 \l 18481            A fifth point of consensus among the parties concerns the transition period as well, which is first that there ought to be some allowance for price increases during the transition period; and second, that there ought to be flexibility to negotiate over rates, terms and conditions for non essential services during this transition period.

1LISTNUM 1 \l 18482            Many parties, including the Rogers witness Mr. Watt, supported allowing the negotiation of mutually acceptable terms, conditions and pricing for non essential services during the transition period, provided of course that regulated tariffs remain in place as a backstop until the end of the transition.

1LISTNUM 1 \l 18483            A sixth and final point of consensus that we noted is that there was near universal support for continuing to require all parties to interconnect with each other and support for the grandfathering of current interconnection arrangements.  The same widespread support is evident for continuing the current arrangements for support structure access, for 911 and message relay service.


1LISTNUM 1 \l 18484            MR. ROGERS:  Mr. Chairman, at this point we would like to turn to a discussion of four important issues that remain unresolved in the proceeding.  We will provide TELUS' solution in regard to each.

1LISTNUM 1 \l 18485            First, the definition of essential facility.  It is clearly a central issue in this proceeding.  It continues to generate quite a bit of debate.

1LISTNUM 1 \l 18486            With the assistance of Professor Robinson and Dr. Weisman, TELUS has pointed out that there is only one definition of an essential facility that is properly grounded in legal jurisprudence and the economics literature.

1LISTNUM 1 \l 18487            Unlike most parties, TELUS and its experts have provided the jurisprudence and the references to the economics literature that demonstrate the correctness of our definition.  It is worth noting that ours is nearly the same definition that the Commission itself accepted in Decision 97‑8.  It is the definition that the Commission should continue to use.


1LISTNUM 1 \l 18488            It is important in this context to recognize a priori that mandated unbundling, or forced sharing of facilities with another competitor, is a rare exception and not the rule.  A proper definition of essential facilities limits mandated unbundling to only exceptional circumstances.

1LISTNUM 1 \l 18489            Why should mandated unbundling or sharing be limited to rare cases?  It must be limited because the sharing of facilities between competitors offends the fundamental nature of a competitive marketplace.

1LISTNUM 1 \l 18490            Simply put, to the extent that competitors are sharing, they are not competing.

1LISTNUM 1 \l 18491            In the normal competitive market such forced sharing impairs the competitive benefits that would otherwise flow to consumers.  A competitive marketplace where consumers could only choose between the product of one supplier and the same product available via resale from another supplier provides only the semblance of competition.  It does not create real alternatives for customers.


1LISTNUM 1 \l 18492            What the essential facility doctrine allows for is the mandated unbundling of facilities where competition would not be possible otherwise.  It is clear that many of the definitions proposed by other parties are not designed with this objective in mind.  Yet those definitions proposed by other parties are said to be based on the definition originally proposed by the Competition Bureau in its draft information bulletin on abuse of dominance.

1LISTNUM 1 \l 18493            The problem that has occurred is that the definition proposed in the draft information bulletin determines essentiality based on whether a supplier has market power.  The Competition Bureau's additional iterations of its essential facilities test continue this line of reasoning.

1LISTNUM 1 \l 18494            The danger, Mr. Chairman, in these proposed definitions of essential facilities is that they lead to potential ambiguity or misinterpretation.  The risk is that mandated unbundling could be required for facilities beyond those that are essential.

1LISTNUM 1 \l 18495            In this context it is useful to contrast the position of The Companies and MTS Allstream.

1LISTNUM 1 \l 18496            Both have incorporated concepts of market power in their definitions but they arrive at vastly different views of what should be unbundled.

1LISTNUM 1 \l 18497            The Companies state that their definition leads to the conclusion that very little is essential.  MTS Allstream, on the other hand, argues that all current services are essential and many new services will be essential.


1LISTNUM 1 \l 18498            With such definitions, clarity would be eliminated.  The Commission would face the likelihood of many follow‑up proceedings.

1LISTNUM 1 \l 18499            MR. SCHMIDT:  There has been some debate in this proceeding regarding the relationship between the definition of an essential facility in the context of the Commission's jurisdiction under the Telecommunications Act and the concept of an abuse of dominance under the Competition Act.

1LISTNUM 1 \l 18500            As Professor Robinson has argued in this proceeding, if the fundamental objective of forced sharing is to enable competition ‑‑ that is, to permit competition to happen ‑‑ the test for the CRTC to forced sharing should be the same as the Competition Tribunal's test under section 79 of the Competition Act.

1LISTNUM 1 \l 18501            In practical terms, if denying access to a facility does not have the effect of preventing or excluding competition, the Commission should not mandate access.

1LISTNUM 1 \l 18502            In other words, access should only be mandated if competition is not possible absent access to that facility.  These circumstances will predictably be rare.


1LISTNUM 1 \l 18503            Professor Robinson's formulation of the policy rationale for forced sharing is no different from the finding required for an abuse of dominance under the relevant part of the Competition Act.  In essence, the essential facilities doctrine is a special case of abuse of dominance, in which the abuse stems from the prevention of competition caused by denial of access to an essential facility.

1LISTNUM 1 \l 18504            In other words, forced sharing is a very special remedy applicable to a very special fact situation.

1LISTNUM 1 \l 18505            As you have heard from Professor Robinson, compulsory sharing is a remedy that is very rarely invoked because it calls for specially limited conditions of monopoly control of the facility and the impossibility of duplication.

1LISTNUM 1 \l 18506            This test would be the same under telecommunications law or under competition law in Professor Robinson's submission.

1LISTNUM 1 \l 18507            Having said these things, we want to stress that our purpose is not to be critical of the Competition Bureau because on many fundamental issues TELUS and the Bureau are in complete agreement.

1LISTNUM 1 \l 18508            In its evidence the Bureau has stated that access should only be mandated to facilities that are essential for competition.  TELUS wholeheartedly agrees.


1LISTNUM 1 \l 18509            At the end of the day it is clear that the Bureau harbours a very deep scepticism about the wisdom of mandated facilities sharing as a means of enabling competition.

1LISTNUM 1 \l 18510            The Bureau cites the substantial risk that such sharing will distort investment incentives on the part of incumbents and new entrants.  The Bureau's concerns about the relative costs of excessive forced sharing are entirely valid in our view.

1LISTNUM 1 \l 18511            A second area that remains an open question in the proceeding or at least has embedded open questions in it is the question of the transition period.

1LISTNUM 1 \l 18512            The Public Notice contemplates that there will be without a doubt a transition period after which time mandated access to non essential facilities would end.  The fact that there will be a transition period raises certain questions, not all of which have been clearly disposed of in the course of last month's hearing.

1LISTNUM 1 \l 18513            TELUS sees three such open questions right now about the transition period.

1LISTNUM 1 \l 18514            First, what ought to be the duration of the transition period?


1LISTNUM 1 \l 18515            Second, how will negotiations work during the transition period and what role, if any, would the Commission play in the context of failed commercial negotiations?

1LISTNUM 1 \l 18516            And third, what happens at the end of the transition period?

1LISTNUM 1 \l 18517            MR. ROGERS:  In response to these three questions, the Commission has been presented with a wide array of proposals as to the duration of the transition period.

1LISTNUM 1 \l 18518            At one end of the spectrum are parties like Bell's original proposal and Cogeco calling for a very abbreviated transition period, as little as one year.  We appreciate that this morning Bell modified that and I understand it is now one to three years.

1LISTNUM 1 \l 18519            At the other end of the spectrum are parties like MTS Allstream, who see the transition as effectively eternal.

1LISTNUM 1 \l 18520            At the end of the day TELUS believes the Commission must resolve the issue of duration in a pragmatic manner by answering this question.  What is a reasonable period of time for the industry to transition from mandated to market‑based supply arrangements via the construction of facilities, negotiations with alternative suppliers and negotiation with incumbent suppliers?


1LISTNUM 1 \l 18521            TELUS believes that its proposed transition period is pragmatically responsive to the realities of the marketplace.  TELUS recommends, in general, a transition period of three years.

1LISTNUM 1 \l 18522            However, the company recognizes that certain classes of nonessential access facilities, such as loops, may require a longer transition period.  For these, TELUS recommends a transition period of no more than five years.  TELUS believes that this duration is long enough for all participants, including TELUS, we would point out, to create new supply arrangements and to adapt to existing ones.

1LISTNUM 1 \l 18523            An inordinately long transition along the lines proposed by MTS Allstream and others amounts in the end to a permanent reliance on regulation.  This is, in our view, inconsistent with the policy direction and must be rejected.

1LISTNUM 1 \l 18524            By the same token, an excessively abbreviated transition runs the risk of not letting a market for nonessential wholesale facilities develop and that is critical.  That is, a market through construction, through negotiation with new suppliers and through renegotiation with existing suppliers.  Such a short option must also be rejected.


1LISTNUM 1 \l 18525            TELUS believes that its transition period strikes a reasonable balance by allowing for enough time for a market for these nonessential wholesale facilities to emerge while not allowing for so much time that the transition period becomes a de facto permanent reliance on regulation, thereby removing the incentive to make alternative facilities arrangements.

1LISTNUM 1 \l 18526            Another open question regarding the transition period is how negotiations would work during the transition period and what role, if any, would the Commission play in the context of any failed commercial negotiations?

1LISTNUM 1 \l 18527            Again, the Commission has been presented with a spectrum of views.  At one end are parties, such as MTS Allstream, that say even voluntary negotiations ought to be prohibited.  At the other end of the spectrum are parties, such as Bell, that advocate negotiation for all facilities, including essential facilities.

1LISTNUM 1 \l 18528            Most parties are open to the idea that negotiations ought to be permitted.  So the question then becomes, how will negotiations work in practice during the transition period, what role, if any, would the Commission play?


1LISTNUM 1 \l 18529            Under TELUS' proposal during the transition suppliers and their customers would be free to negotiate mutually acceptable agreements for nonessential facilities that depart from those already reflected in Commission‑approved tariffs.

1LISTNUM 1 \l 18530            Competitors would negotiate from a position of relative strength having the benefit of mandated supply agreements or arrangements with the Commission‑guaranteed rates during the transition period.  Competitors would therefore only consent to other terms that, in their view, amount to a long‑term improvement over the baseline rates, terms and conditions set out in the tariffs.

1LISTNUM 1 \l 18531            At the same time, competitors would continue to pursue other supply arrangements in the marketplace, including self‑supply, all of which would serve as a source of competitive pressure on the incumbent suppliers.


1LISTNUM 1 \l 18532            To be specific about this point, Mr. Chairman, TELUS does not foresee the need for an adjudicative role for the Commission with respect to failed commercial agreements during the transition simply because Commission‑approved tariffs will remain in place as the fallback for all competitors seeking nonessential facilities from the incumbents.  The decision to continue mandated access to nonessential facilities coupled with price controls would be the Commission's primary regulatory intervention in the market for nonessential facilities during the transition period.

1LISTNUM 1 \l 18533            In TELUS' view, this is enough.  It gives the wholesale market a chance to develop, which is the important thing, while providing assurance of continued supply during the three to five‑year period.

1LISTNUM 1 \l 18534            Lastly, there is the matter of what the Commission should do, if anything, at the end of the transition period.  In TELUS' view, the Commission should set the rules of the road, pick a reasonable duration for the transition and step back and allow market participants to develop alternatives to mandated supply arrangements by building facilities or by purchasing from alternative carriers or by renegotiating with incumbent suppliers.  The Commission can be secure in the knowledge that the backup of tariff‑mandated supply is there for a period of three to five years.

1LISTNUM 1 \l 18535            Furthermore, there is no need to presume a need for another review or some other form of intervention in the market by the Commission at the end of the transition.


1LISTNUM 1 \l 18536            MR. SCHMIDT:  A third broad area of unresolved issues involves setting the appropriate incentives for investment.  TELUS' proposal in this proceeding is designed to be responsive to the policy direction's overall objective of enhancing incentives to invest in network facilities.

1LISTNUM 1 \l 18537            While there has been debate in the hearing room about the relationship between regulatory measures and investment incentives for carriers, TELUS sees no deep magic or mystery here.  The basic proposition is that without the correct incentives carriers will not invest, investments will either be altogether bypassed or at least significantly delayed in the face of incorrect incentives.

1LISTNUM 1 \l 18538            Obviously, neither outcome is positive for customers, because in both cases there is a diminished amount of investment in networks, diminished amounts of investment in innovations, and this would attach to both incumbent and entrant networks alike.

1LISTNUM 1 \l 18539            You have heard from some parties that they need mandated access to incumbent facilities so that they can get sufficient scale and then make their own network investments.  The message is, in effect, that they will invest and innovate eventually.  This is the so‑called steppingstone theory.


1LISTNUM 1 \l 18540            There are two fundamental frailties to this theory.  The first problem is that the argument ignores the state of facilities‑based competition in Canada.  Everyone recognizes that there is competition between ILECs and cable companies.  There are also multiple independent wireless networks out there.  We heard Mr. Mercia, the witness for Cybersurf, acknowledge the existence of at least five distinct hi‑speed internet access networks in the province of Alberta.

1LISTNUM 1 \l 18541            So platform competition, competition among distinct networks is the norm and not the exception in Canada's telecommunications economy for wireless telephony, for internet access, for residential telephony and increasingly for business telephony.  There is no need, therefore, for us to be stepping towards something, we are already there.  We have already proved it is possible to have multiple competing independent networks.

1LISTNUM 1 \l 18542            These facts additionally serve to refute any claim that Canada is too small or not densely populated enough to have facilities‑based competition.  Facilities‑based competition is happening in Canada.


1LISTNUM 1 \l 18543            The second fundamental frailty with the steppingstone theory is that there is no credible empirical evidence that it actually works in practice.  Indeed, the evidence that is out there points to a contrary conclusion.  A review of the academic literature reveals the stepping stone notion to be a discredited theory, not supported by the facts, not supported by marketplace outcomes.

1LISTNUM 1 \l 18544            You have heard from Dr. Crandall who stated that the empirical research does not support the steppingstone theory.  His research shows that investment in facilities by both ILECs and CLECs increased after the U.S. dismantled its massive unbundling experiment.  In other words, liberal unbundling policies are not the route to getting providers to invest in facilities.

1LISTNUM 1 \l 18545            And anyone in this room that is telling you that they need all of TELUS' network or all of Bell's network for a while, but then they will build their own network, is telling you something not borne out by studies of other jurisdictions.

1LISTNUM 1 \l 18546            Indeed, Mr. Hariton, the expert for the Bureau, came to a similar conclusion.  He testified that the Bureau sees no evidence that the steppingstone works in practice.  And this is a view, of course, that is echoed amply as well in the TPR report.


1LISTNUM 1 \l 18547            On a related note, it is important for us not to be mislead by certain policy experiments in European countries with respect to mandated local loop unbundling.  These countries are not precedents for Canada.  They lack a second competing wireline network and have basically given up on the prospect of platform competition, hence their recourse to massive unbundling.  In Canada, cable entry has changed the game.

1LISTNUM 1 \l 18548            There was some discussion in the proceeding about where in telecommunications network innovation takes place.  Does it take place at the application layer or do you even have innovation down below at the network layer?

1LISTNUM 1 \l 18549            You will recall the Competition Bureau's expert, Mr. Hariton, stated that there is lots of innovation occurring at the network layer, at the transport level, in terms of adding capacity, in terms of adding greater speed to make new and different services and applications possible.


1LISTNUM 1 \l 18550            Rogers' expert, Mr. Hatfield, also agreed that networks are undergoing fundamental dynamic change in terms of their underlying technologies.  You will also recall that Dr. Crandall pointed out how fundamentally determinative the physical network is of the possibility of innovation when he reminded us that you could never get a wireless network out of a wireline network.  For that innovation to be possible, for mobility to be possible, you need a completely new network.

1LISTNUM 1 \l 18551            The physical network matters in short.  It is fundamentally determinative of the nature or the extent of the possibility of innovation and regulatory policy must keep this in mind.  The Bureau's expert witness, Dr. Church, put it most delightfully when, paraphrasing Schumpter, he said, "No matter how many locomotives you put end to end, you will never get a plane."  The task of regulatory policy is to ensure that it is possible to have planes.

1LISTNUM 1 \l 18552            MR. ROGERS:  Another area of unresolved debate involves the question of the relationship to the new forbearance regime.  And this centres on the confusion between the definition of an essential facility and the conditions stipulated for the retail forbearance, particularly in the area of retail business forbearance that might depend on competitors using ILEC facilities such as unbundled loops.


1LISTNUM 1 \l 18553            According to TELUS' definition, an essential facility is one that is monopoly‑supplied, cannot be economically duplicated and is required to provide the retail service.  The conditions for retail forbearance, however, may be met by competitors that in part rely on this essential facility.

1LISTNUM 1 \l 18554            It is important to recognize that it is not a problem and indeed it is correct that the definition of an essential facility is not the same as the conditions for retail forbearance.  In practice, retail forbearance will not be limited or need to be reversed by the adoption of TELUS' definition of an essential facility.

1LISTNUM 1 \l 18555            If a wholesale facility is truly essential, it will be provided on a mandatory basis at tariffed rates so that all competitors in the retail market will have access to the essential facility.  The concern, however, arises for non‑essential facilities that are currently required to be provided on a mandatory basis to retail competitors.


1LISTNUM 1 \l 18556            Consider the situation for non‑essential local loops.  Under TELUS' proposal the five‑year transition period for access facilities provides ample time for competitors to make other arrangements for the facilities.  During the transition period when the non‑essential local loops will be provided at tariffed rates, competitors who rely on them can either build their own facilities or make arrangements with one of the other alternative suppliers of non‑essential facilities.

1LISTNUM 1 \l 18557            We do not expect any competitor ‑‑ and let me remind you that this applies to TELUS as a competitor in Eastern Canada.  We do not expect any competitor to want to duplicate entirely a national network, nor will they need to.

1LISTNUM 1 \l 18558            Companies, including ILECs, that already have networks will have a strong commercial incentive to provide local loops on a wholesale basis.  It is better to get some wholesale revenue than no revenue at all if the retail service provider constructs its own loops or purchases them from another supplier.

1LISTNUM 1 \l 18559            Furthermore ‑‑ and I must stress this ‑‑ an ILEC will simply not risk losing its retail forbearance by cutting its competitors off from local loops.

1LISTNUM 1 \l 18560            However, notwithstanding what I have just said, in the unlikely event that a problem does develop in the retail market, the Commission should address that problem directly, as Dr. Church has suggested.  The Commission would always retain the power to regulate the retail service.


1LISTNUM 1 \l 18561            While unlikely, this is a preferable option to altering the definition of an essential facility in order to mandate the provision of certain wholesale facilities just to address the remote possibility that they would not otherwise be available from any other provider or could not be self‑supplied and would still be required in order to maintain retail forbearance.

1LISTNUM 1 \l 18562            There would be no benefit from this approach and the cost would be a reduction in the network investment by both the ILECs and the competitors.  Consumers would be ultimately the losers.

1LISTNUM 1 \l 18563            For these reasons, TELUS believes that the Commission can safely continue to apply the correct definition of an essential facility, the one that TELUS has proposed and the one that was accepted by the Commission in 1997.

1LISTNUM 1 \l 18564            This will encourage facilities‑based competition and the Commission can do so with little risk of having to reverse any current retail forbearance or limiting future forbearance, even where some competitors rely on other facilities to provide retail services.


1LISTNUM 1 \l 18565            MR. SCHMIDT:  In conclusion, Mr. Chairman, commissioners, as we said at the outset of these comments, TELUS regards this proceeding as a very important opportunity for the Commission.  It is an opportunity to establish a new framework that will move Canada decisively forward into a new era of investment, innovation and competing networks.

1LISTNUM 1 \l 18566            The Commission has embarked on this inquiry in circumstances that are certainly unique.  The final report of the Telecom Policy Review Panel has set in motion a movement towards significant policy change.  As well, for the first time, the federal government has exercised its power of policy direction under the Telecommunications Act.

1LISTNUM 1 \l 18567            The TPR Report and the Policy Direction, taken together, lead to the clear conclusion that the Commission has been given a vivid mandate for change.

1LISTNUM 1 \l 18568            TELUS has been struck by the fact that in this proceeding, with a few notable exceptions, most parties accept that the Commission has been given a mandate to fundamentally reassess and fundamentally revise the current wholesale services framework.

1LISTNUM 1 \l 18569            In fact, even a number of telephony new entrants in the local market acknowledge that there can be and indeed ought to be a narrowing of the scope of mandated access.


1LISTNUM 1 \l 18570            The Commission has before it a record that shows that all market participants, whether wireless, wireline, internet, incumbent or new entrant, already compete using a combination of their own facilities and the facilities of other parties.  Many of those arrangements have been established commercially, outside of the Commission's regulated wholesale regime that exists today.  Simply put, telecom markets can and do work when allowed to do so.

1LISTNUM 1 \l 18571            MR. ROGERS:  Mr. Chairman, I will close these remarks by saying what is important in this proceeding is that the Commission send a clear signal that it will substantially reduce regulated, mandated sharing, that the transition period of three to five years will allow all parties to adapt and that the new framework calls for all players to focus on a combination of facilities investment and commercial negotiations.

1LISTNUM 1 \l 18572            In this proceeding, the Commission can set the tone for telecommunications regulation for Canada for many years to come.  It should make clear that its role going forward is to protect the competitive process, and I underline the word "process."


1LISTNUM 1 \l 18573            The number and identity of the various players in the market will change over time, as it does in most industries.  However, the Commission's objective will be to remain focused on enabling the competitive process to operate, not on the status or market share of any particular competitors.

1LISTNUM 1 \l 18574            TELUS' proposals in this proceeding are clear, pragmatic and simple for the Commission to administer.  They build on the sound economic and legal principles that were at the heart of the Commission's original decision on local competition in 1997.

1LISTNUM 1 \l 18575            Those principles, as articulated in this proceeding by TELUS, constitute a coherent, robust and pragmatic framework through which the Commission can create the right framework for Canada.  We urge the Commission to adopt them.

1LISTNUM 1 \l 18576            Thank you, Mr. Chairman and members of the panel.

1LISTNUM 1 \l 18577            THE CHAIRPERSON:  Thank you, Mr. Rogers.

1LISTNUM 1 \l 18578            Tell me, did I mishear when your client was on the stand and testifying, didn't they propose a five‑year transition period across the board?  You are now saying three to five.  What made you change your mind?


1LISTNUM 1 \l 18579            MR. ROGERS:  Mr. Chairman, I think a fair reading of the written evidence, and perhaps it wasn't clear in the oral responses in the hearing, but certainly the written evidence made clear that our proposal was three but five years for access facilities on the theory that access facilities take longer and more arrangements need to be put in place by all players, including TELUS, but there are other arrangements which are much more quickly replaced and so we said three for those.

1LISTNUM 1 \l 18580            THE CHAIRPERSON:  I am going from memory but I thought I asked Mrs. Yale and she said it is five years across the board.  But anyway, we can check the record.

1LISTNUM 1 \l 18581            What about the whole issue of ‑‑ wasn't it your client who also suggested we should go to an ex post facto regime and should not make any ex ante regulations?

1LISTNUM 1 \l 18582            MR. ROGERS:  No, I don't think so.

1LISTNUM 1 \l 18583            THE CHAIRPERSON:  I hear nothing on that point here at all.  Does that mean you dropped that point?

1LISTNUM 1 \l 18584            MR. SCHMIDT:  I don't think, in fact, the word "ex post" probably appears in any of our written evidence.  So that was not ours.


1LISTNUM 1 \l 18585            THE CHAIRPERSON:  I am sorry, I must be mixing you up with ‑‑

1LISTNUM 1 \l 18586            MR. SCHMIDT:  That is quite okay.

1LISTNUM 1 \l 18587            THE CHAIRPERSON:  ‑‑ but I wanted to know ‑‑

1LISTNUM 1 \l 18588            MR. SCHMIDT:  But the brief answer would be no.  We anticipate a three‑ to five‑year ex ante role for you in terms of setting the rules of the road and at the end forbearance but ‑‑ except for essential stuff.

1LISTNUM 1 \l 18589            THE CHAIRPERSON:  Thank you.

1LISTNUM 1 \l 18590            Any questions from my colleagues?

1LISTNUM 1 \l 18591            Okay, thank you very much.

1LISTNUM 1 \l 18592            Who is next, Madam Secretary?

1LISTNUM 1 \l 18593            THE SECRETARY:  MTS Allstream Inc. will be our next panel.

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 18594            MR. PEIRCE:  Good morning, Mr. Chairman, commissioners.

1LISTNUM 1 \l 18595            Chris Peirce, Chief Regulatory Officer for MTS Allstream.

1LISTNUM 1 \l 18596            In an effort to add value to any questions you may have, I also have Teresa Griffin‑Muir, Vice‑President, Regulatory Affairs, with me.


1LISTNUM 1 \l 18597            Just before I start my prepared remarks, I might just correct a bit of a mischaracterization about those MTS Allstream guys and them wanting everything including the kitchen sink as essential.

1LISTNUM 1 \l 18598            The materials will be filed later in the day in response to the detailed list from the Commission.  Of those services that are non‑interconnection, it is about half and half of those things we call essential versus those things we think would be subject to phase‑out.

1LISTNUM 1 \l 18599            THE CHAIRPERSON:  Thank you.

1LISTNUM 1 \l 18600            MR. PEIRCE:  The Commission's task in this proceeding is clearly described in the government's Policy Direction in paragraph 1(c)(ii), in short:

"...to review the regulatory framework regarding mandated access to wholesale services, to increase incentives for innovation and investment in competing network facilities, to determine the treatment of access to non‑essential services..." (As read)

1LISTNUM 1 \l 18601            And importantly:


"...to take into account the principles of technological and competitive neutrality, the potential exercise of market power by incumbents absent mandated access, and impediments in the way of network construction by carriers." (As read)

1LISTNUM 1 \l 18602            I say importantly because that last wording was added by the government to the final form of the direction in direct response to concerns that competitors like MTS Allstream had expressed about the importance of network access, especially in an industry that was deregulated at the retail level.

1LISTNUM 1 \l 18603            And consistent with those concerns and the importance of that language, the government's forbearance framework, sanctioned retail deregulation solely on the basis of the presence of a facilities‑based competitor that, by definition, was reliant upon the very same network access, not retail deregulation based on the absence of market power in the hands of the applicant incumbent, retail deregulation based on the mere presence of a competitor reliant upon network access.


1LISTNUM 1 \l 18604            And to be clear, all retail deregulation in the business market to date has hinged on the presence of exactly that type of competitor.

1LISTNUM 1 \l 18605            Over the course of this proceeding you have heard two very different approaches to achieving these goals, one endorsed by competitors like MTS Allstream we submit relies on fact and experience.

1LISTNUM 1 \l 18606            The other, espoused by the incumbent Bell companies and TELUS, is to ignore the facts on the ground in favour of abstract economic theory and, oddly I submit in a quasi‑judicial proceeding, hope.

1LISTNUM 1 \l 18607            I am going to start today by discussing some of the key conclusions we believe you should draw from the facts put forward in this proceeding and why a wholesale regime built on those facts will result in the competition investment and innovation we seek.

1LISTNUM 1 \l 18608            Along the way, I will explain why the fictions the large incumbents seek to perpetuate are unsupported by the evidence and are ultimately antithetical to the goals of this proceeding.

1LISTNUM 1 \l 18609            Next I will address MTS Allstream's criteria for essential facilities and show why it will achieve these goals.


1LISTNUM 1 \l 18610            Our test, I should emphasize, is built on reality and experience, not on wishful thinking and hopeful hypothesis.

1LISTNUM 1 \l 18611            Finally, I will talk briefly about why our framework meets the objectives of the Telecommunications Act, the goals of the government policy direction, and addresses the realities of the local forbearance regime as recently modified by the government's Order in Council.

1LISTNUM 1 \l 18612            The focus of my remarks, as has been the case for MTS Allstream throughout this proceeding, is the business market.  We don't accept Bell and TELUS' conclusions about the residential market, but it is clear that the facts regarding the business market are very different.

1LISTNUM 1 \l 18613            So let me start by identifying some of the facts and some of the fictions we have all heard these last few weeks.

1LISTNUM 1 \l 18614            The facts show that competition, innovation and investment has been brought to market and spurred by facilities‑based competitors as defined by the Canadian government.


1LISTNUM 1 \l 18615            The first conclusion must therefore be that our facilities‑based regime brings benefits to customers and is to be fostered over the long term.  In fact, this regime has also brought us retail deregulation.

1LISTNUM 1 \l 18616            MTS Allstream is uniquely positioned to demonstrate this proposition.  No competitor has invested more in competitive network facilities in this country than we have.  We are the largest facilities‑based competitors serving the business market in Canada, with more out of territory lines than all other business competitors combined, including Bell and TELUS.

1LISTNUM 1 \l 18617            We are the only former monopoly provider that derives more than one half it's revenue from competing outside its former monopoly region and is therefore, by its very profile, committed to a regime that spurs competitive market forces on the ground.

1LISTNUM 1 \l 18618            But we haven't, and couldn't, have gotten here just by using our own facilities.  MTS Allstream has and continues to invest efficiently in facilities where a business case justifies investment and makes use of the incumbent and other networks in combination with our own facilities.  We could not serve the customer or justify any investment otherwise.  This is the only competitor strategy that investors will fund and that can be successful.


1LISTNUM 1 \l 18619            Everyone in this proceeding acknowledged that the demand characteristics of the business market, particularly the medium to enterprise size business market, necessitates that a competitor be able to serve a customer in multiple locations.  The facts show that there is simply no way for a competitor to do that without combining its own network with leased facilities.

1LISTNUM 1 \l 18620            It should be trite to observe telecommunications is a network‑based industry and, as Mr. MacDonald pointed out, network efficiencies and any provider's cost structure improves dramatically the more extensive the network.

1LISTNUM 1 \l 18621            The evidence also shows that the presence of MTS Allstream, and other competitors in the market who use a combination of their own and leased facilities, leads to competitive rivalry.  With that comes lower prices, market innovations and, undeniably, greater customer choice.

1LISTNUM 1 \l 18622            For example, you have heard that MTS Allstream, through significant capital investment in its core network has built a national MPLS network that provides business customers with expanded service functionality at a performance level that eclipses the capabilities of the legacy network.


1LISTNUM 1 \l 18623            In addition, our investment ethernet transport switching and routing technology has positioned MTS Allstream to provide cost‑effective high bandwidth ethernet accessibility in major centres across the country.  But that innovation, as our Ron Rout pointed out, relies upon mandated ethernet access and transport from the incumbents.

1LISTNUM 1 \l 18624            These advances have in turn spurred rivalrous behaviour in the market.  Such innovations then themselves speak to the need to include next generation access and transport services in the wholesale regime which is faithful to the principle of technological and competitive neutrality set out in the policy direction.

1LISTNUM 1 \l 18625            The government has embraced investment in competing networks and MTS Allstream's definition of facilities‑based competition.  It is clear from both the policy direction and the forbearance Order in Council that the government does not see end‑to‑end competition as the only goal or indeed necessarily as a realistic goal.


1LISTNUM 1 \l 18626            That makes sense.  If end‑to‑end competition were the only goal, it is clear that the government's desire for less regulation at the retail level would be unachievable for the foreseeable future in the business market.  The government's recognition of this reality must inform how an essential facility or services is defined.

1LISTNUM 1 \l 18627            The ideal of competition from an end‑to‑end ubiquitous facilities‑based provider was recognized as unachievable by all parties, save the Competition Bureau.

1LISTNUM 1 \l 18628            Mr. Fleiger for TELUS frankly admitted that the concept that any provider could have a ubiquitous network everywhere in Canada at every location is totally unrealistic, that "You can't do that and stay in business".

1LISTNUM 1 \l 18629            We agree.  Again, we speak from hard experience.

1LISTNUM 1 \l 18630            For many years MTS Allstream's predecessor companies try to fulfil his ideal, building where there was no business case to do so and, after investing billions, ending up being forced to write off and restructure about $4 billion worth of debt through the CCAA process.

1LISTNUM 1 \l 18631            Nor can we rely, as the Bell companies and TELUS like to pretend, on the advent of cable telephony as the end‑to‑end facilities‑based competitor in the business market.


1LISTNUM 1 \l 18632            There is no evidence that the incumbent's wireline network will be duplicated in the business market.

1LISTNUM 1 \l 18633            The cable network resulted, let's remember, from a monopoly structure just like the telephone network.  It was built out in residential markets for a very different purpose, the transmission of video, then upgraded after many years to allow two‑way broadband communication.  More recently, technology finally developed to allow voice communication over that network.

1LISTNUM 1 \l 18634            These facts are unique to cable, unique to the residence market, and are not repeatable for any competitor in the business market.

1LISTNUM 1 \l 18635            That includes the cablecos themselves by the way.  As the evidence in this proceeding has shown, the cable plant is not built up in business areas.  Even where it passes a business, without the necessary demand a cable provider lacks a business case to build a lateral to that building, and cable technology as it stands does not have the functionality required to serve the business market.

1LISTNUM 1 \l 18636            You heard Mr. Pattinson for Rogers explain that coaxial cable has significant constraints for upstream bandwidth and so to provide services in the business market which typically need symmetrical data flows Rogers needs to build out fibre.


1LISTNUM 1 \l 18637            Jean Brazeau from Shaw told you that ubiquity is a very important demand characteristic of the business market and because of that in many instances Shaw has no choice but to lease circuits for voice services from the incumbents.

1LISTNUM 1 \l 18638            Finally, the Bell companies and TELUS would have you believe that the investment that the government is seeking is in the last mile or access portion of the network.

1LISTNUM 1 \l 18639            This is pure invention.  Facilities‑based competition takes place at all levels of the network.  This, too, is consistent with the policy direction which refers to competing networks, not to competing access networks.

1LISTNUM 1 \l 18640            It is important to remember that the value of a network, economies of scale and the feasibility of build outs all increase with the number of customers connected.

1LISTNUM 1 \l 18641            Shaw speaks directly to this point.  It is not just about the access portion of the network, it is about the backbone and transport portion, too, and how every addition at every level increases the value of the whole network.


1LISTNUM 1 \l 18642            Any analysis of whether a connection can be duplicated at one particular site or route therefore clearly misses the forest for the trees.

1LISTNUM 1 \l 18643            Duplicability, as we discuss in more detail below, is part of the analysis, but it is by no means the only or even the most important consideration.

1LISTNUM 1 \l 18644            The ILEC starts out with a whole network already in place, which is why it has such an enormous advantage.  Because the second ubiquitous network is, on the evidence, not going to appear in the business market, mandated access is essential, otherwise competitors will be crushed by the economies of scale already implicit in the ubiquitous network controlled by the incumbent.

1LISTNUM 1 \l 18645            So the facts are clear, combining owned and leased facilities has successfully brought innovative new services, lower prices and choice to customers.  The logical conclusion is that we should take measures to promote and sustain this facilities‑based regime that brings demonstrable consumers benefits and less retail regulation while encouraging efficient investment in facilities.

1LISTNUM 1 \l 18646            Let's now look at the facts and fictions about investment.


1LISTNUM 1 \l 18647            The facts show that providers invest in networks where it is economically viable to do so.  Our second conclusion is, therefore, that a regime that reflects this economic reality will best spur investment and innovation.

1LISTNUM 1 \l 18648            Every party to this proceeding acknowledged that facilities will only be built where there is a business case to do so.

1LISTNUM 1 \l 18649            TELUS' own expert, Dr. Aron, defined an essential facility on the basis of the economic viability of its construction, and evidence from every industry participant showed that it is simply not economic to build unless the potential demand justifies the costs.

1LISTNUM 1 \l 18650            Indeed, no party to this proceeding argued that there would be one national competitor who would or could build to every location.  Accordingly, to reap the benefits of competition we must have a wholesale access regime that makes it economically viable for competitors to invest and innovate.

1LISTNUM 1 \l 18651            Both the incumbent telephone companies and the incumbent cable companies built their networks under monopoly conditions, the telephone companies with a guaranteed rate of return.  It is impossible for a company relying on risk capital to emulate that network.


1LISTNUM 1 \l 18652            You have heard clear evidence that even after winning a customer company often can't justify an end‑to‑end build‑out of its network to serve that customer.

1LISTNUM 1 \l 18653            As John MacDonald from our company explained, with respect to a contract that MTS Allstream wanted to serve a national bank with over 1,000 branches across Canada, it would take $2 billion in capital expenditures if we were trying to try to build to each location.  Even if we only made investment in certain locations, reducing the investment by half, it would still take 203 years to pay it back.

1LISTNUM 1 \l 18654            It is clear that the focus must be on encouraging efficient investment by competitors where and when it makes economic sense in order to foster competition and innovation.

1LISTNUM 1 \l 18655            But to encourage efficient investment, you have to set the right signals to the market.  The facts show that mandating access to services and facilities that competitors require as inputs and pricing them at cost plus a 15 per cent mark‑up encourages efficient entry and sends the right signal to the market.


1LISTNUM 1 \l 18656            So our third conclusion is that a properly constructed wholesale regime with the right pricing signals will incent investment and efficient entry.

1LISTNUM 1 \l 18657            Rogers' expert, Dr. Ware, in a book he co‑authored with the Bureau's expert, Dr. Church, acknowledged what we all know is true and particularly resident in this industry:  the competitive process incents investment by incumbents to defend their competitive advantage and this stimulates innovation.

1LISTNUM 1 \l 18658            You heard a lot over the last few weeks about Type 1 and Type 2 errors.  The Bell companies, TELUS and the Competition Bureau take it on faith, audaciously, I submit, that there is a greater danger from over‑mandating access or pricing services too low than from under‑mandating and pricing services too high.

1LISTNUM 1 \l 18659            Note that the effect of over‑pricing is the same as that of under‑mandating since in both instances the service becomes economically unavailable to competitors who are thereby removed as a competitive threat to the incumbent and a competitive alternative for customers.

1LISTNUM 1 \l 18660            Dr. Selwyn spoke eloquently to this when he stated that "the risks of a Type 1 error quite frankly are quite minimal, and risks of a Type 2 error are extreme".


1LISTNUM 1 \l 18661            The risks to innovation, for example, of discouraging competition arise not just in the downstream retail telecom market, but they arise in any other industry segment that itself relies on telecom services.  Those who argue that over‑mandating access will act as a disincentive to investment have presented only one side of the economic literature on this point.

1LISTNUM 1 \l 18662            Clearly, this is an issue around which there is continuing debate, but I submit to you that the facts are not in serious dispute.

1LISTNUM 1 \l 18663            We note that the literature cited by the Bell companies, TELUS and the Bureau speaks principally to investments by incumbents, not by competitors.

1LISTNUM 1 \l 18664            Dr. Crandall has only performed a regression analysis of the number of lines served by CLECs, not about all of the other kinds of investments that competitors have undeniably made in the network.

1LISTNUM 1 \l 18665            As I noted before, the evidence shows that investment and innovation by competitors takes place all over the network, not just or even primarily at the access level.


1LISTNUM 1 \l 18666            Let's be clear.  This is not a case where competitors don't want to build.  All of the evidence shows that everyone wants to build facilities because there are obvious advantages to being able to control one's own networks.  Surely the continuing battles over competitor quality of service are a testament to this.

1LISTNUM 1 \l 18667            But you also have heard repeatedly in this proceeding from all of the competitors that high prices don't act as incentives either to extend services or to build facilities.  We submit that the notion they do is a convenient fiction with no empirical basis, at least in Canada today.

1LISTNUM 1 \l 18668            The ILECs argue that Type 2 errors are self‑adjusting because if the price is too high, no one will buy, which in turn will force prices down.  This theory only works if there is an alternative source of supply.  If there is no alternative, the price isn't self‑correcting; it just acts to discourage efficient entry and ultimately stifles competition.


1LISTNUM 1 \l 18669            You have a perfect example in the evidence.  You heard John MacDonald explain that when the Commission refused to deem an Aliant submarine cable to Newfoundland an essential facility, left to its own devices Aliant charged MTS Allstream $7 million annually, a rate that includes a mark‑up of at least 1000 per cent, and when MTS Allstream tried to recoup some of this cost through the resale of excess capacity to TELUS, Aliant immediately offered TELUS a better arrangement.

1LISTNUM 1 \l 18670            This is what happens when there is monopoly control.

1LISTNUM 1 \l 18671            Persona, MTS Allstream, Rogers and the Government of Newfoundland ultimately decided to build its own facility together as a result of a unique situation where, as John MacDonald termed it, "the stars aligned" to bring those four partners together collectively:  an $82 million investment that diverted funds for more efficient and innovative investment.

1LISTNUM 1 \l 18672            The build required $15 million of taxpayers' money from the Government of Newfoundland to subsidize it, and even before the construction has finished, Aliant's prices over that same route have dropped by about 20 per cent.

1LISTNUM 1 \l 18673            This was an uneconomic build.  There was plenty of capacity available on Aliant's network.  It just wasn't affordable capacity.


1LISTNUM 1 \l 18674            This is a classic example of how high prices send precisely the wrong signals to the market and how the actions of a monopoly can subvert efficient entry.  It doesn't make sense to have high prices drive the deployment of uneconomic facilities that require government subsidy, and it is inimacable to the government stricture to avoid inefficient entry.

1LISTNUM 1 \l 18675            Dr. Taylor, the Bell Companies' own expert, acknowledged that in 2001 he had tendered evidence stating that the Commission's framework was economically efficient because "making network elements available to competitors at the incumbent's costs give potential entrants access to the same economies of scale and scope that the incumbent experiences in its network".

1LISTNUM 1 \l 18676            He agreed that allowing different modes of entry puts pressure on retail prices, and he agreed that this principle remains unchanged today.

1LISTNUM 1 \l 18677            During a discussion of CDN pricing at the hearing, the Chair asked a logical question of both Bell and TELUS:  Why was CDN pricing a disincentive to investment?  Didn't it mean that these ILECs out of territory could now use the investment that it would otherwise have spent on CDN in other areas of its business?

1LISTNUM 1 \l 18678            In cross‑examination TELUS admitted that even after CDN rates went down, its level of investment out of territory remained constant and that in 2004 and 2005, post that decision, TELUS' out of territory operations became EBIDA profitable.


1LISTNUM 1 \l 18679            Clearly TELUS was able to grow its competitive business while moving its dollars from being spent inefficiently on high priced CDN services to other places, just as the Chair had assumed would be the place.

1LISTNUM 1 \l 18680            The Bell Companies and TELUS doth protest too much.  Their objections to the CDN prices are more about preventing competitive entry in‑territory than providing an incentive to competitors, including themselves, out of territory.

1LISTNUM 1 \l 18681            In my submission, the Bell Companies and TELUS are more interested in protecting their monopoly at home than in providing competitors with the means to build.  This is rational behaviour on their part, but it doesn't mean it's best for competition, innovation or investment.  Quite the opposite.

1LISTNUM 1 \l 18682            No party has unlimited capital to build facilities.  Decisions as to when and where to build are cash flow driven and must be supported by a business case.  That's why a wholesale regime that provides competitors with the inputs they need at reasonable prices will incent investment and efficient entry.


1LISTNUM 1 \l 18683            Finally, the facts show that competition, innovation and investment can be promoted by providing access to inputs needed by competitors on an ongoing basis, including next generation facilities and services.

1LISTNUM 1 \l 18684            The conclusion, therefore, is that continuing to provide such access will continue to bring benefits while cutting off access, whether now or later, will only result in less competition and eventually the prospect of retail re‑regulation.

1LISTNUM 1 \l 18685            The fiction that denying access, whether immediately or after a transition period, will bring about competition and investment is based on a hope that an alternative network will come along.  Indeed, hope is the very word used by Dr. Church on behalf of the Bureau in describing this possibility.

1LISTNUM 1 \l 18686            This hope has no basis in fact.  Counsel for the Bell Companies and TELUS waved around press releases and brochures for TeraGo and other wireless providers at the hearing to create an impression of impending entry.  But as was explained at the hearing, fixed wireless is nowhere near the stage where it could be considered an alternative network and, in any event, is not practical at this point for the business market in many respects.


1LISTNUM 1 \l 18687            The truth is there is no silver bullet.  If a new disruptive technology comes along, then the whole playing field will be altered.  But no such technology is on the foreseeable horizon.  Remember, cable entry into the voice market was forecast as early as 1992 and yet it took almost 15 years to get here.  Canadians would have been without any competitive alternatives at all if the Commission had denied competitors access for that period.

1LISTNUM 1 \l 18688            That's also why restricting mandated access only to legacy or slower speed services would be counter‑productive.  To continue to innovate and experiment, competitors need access to next generation facilities too.  Ethernet is the broadband local loop of the early 21st century.

1LISTNUM 1 \l 18689            Continuing access, by the way, doesn't mean we expect the Commission to be regulating the same services forever.  We expect that once competitive supply of a given facility develops, incumbents will be granted forbearance in an upstream market.  But competitive and technological neutrality mean, by definition, that what is essential tomorrow may not be essential or even a known technology today.

1LISTNUM 1 \l 18690            The Commission's framework will need to be alive to the evolving nature of the industry if we want to continue to promote innovation in facilities and services.


1LISTNUM 1 \l 18691            Bell and TELUS say don't mandate access.  We can negotiate.

1LISTNUM 1 \l 18692            Well, we have been down that road before.  As you heard in the cross‑examination of Bell, it took more than six years to negotiate an ethernet solution, even with ongoing Commission involvement, and there are still outstanding issues to be resolved.

1LISTNUM 1 \l 18693            The incumbents simply don't have any incentive to negotiate.  In a deregulated environment, they will charge prices for wholesale services that will give them the same margins as in the retail market.  That's not even margin squeezing; it's margin thieving.

1LISTNUM 1 \l 18694            As the Chair recognized at the hearings, such a practice would mean the elimination of the wholesale market altogether.  The notion that negotiation between a vertically integrated ubiquitous provider and its potential competitor could possibly be an answer for the Commission is a blatantly self‑interested one put up by the incumbents.

1LISTNUM 1 \l 18695            As Mr. MacDonald definitively put it, retail trumps wholesale.


1LISTNUM 1 \l 18696            Remarkably, all of the experts who defended their theoretical models engaged in hope or guesswork when it came to the transition period.  When asked what they would recommend if the hoped‑for alternative network didn't materialize at the end of the transition period, Drs. Church and Weisman, for the Bureau and TELUS respectively, disagreed with the proposition that they should actually check their assumptions.  Rather, they both said that at the end of the transition period, if there is no alternative network despite the hope we all went in with, then the solution will be to reregulate the retail market.

1LISTNUM 1 \l 18697            That is clearly not a solution that would be acceptable to the government, given its directive to take measures that increase reliance on market forces.

1LISTNUM 1 \l 18698            I want to turn now to our own test for essential facilities and services and talk about why we think it's the right one and how the Commission could put it into practice.

1LISTNUM 1 \l 18699            I'm going to use the term "facilities" to refer both to facilities and services in this context.

1LISTNUM 1 \l 18700            MTS Allstream, like most of the parties in this proceeding, proposes to adopt the Commission's definition of an essential facility ‑‑ that is, an input that provides the firm controlling it with the power to lessen or prevent competition in a relevant downstream market.


1LISTNUM 1 \l 18701            MTS Allstream's two criteria for determining whether an input meets this definition are: whether the facility provided by the former monopoly is required as an input by one or more competitors to provide downstream retail services; and that the former monopoly dominates the wholesale supply of the facility in question.

1LISTNUM 1 \l 18702            The first criterion takes into account the nature of the input, existing and expected competitor demand for the input, and the extent to which self‑supply or duplication is sufficient practical or feasible to allow entrants to compete effectively in downstream markets.

1LISTNUM 1 \l 18703            Where it is found that competitors largely, if not entirely, rely on incumbents' supply of the input to compete in one or more downstream markets, this element of the test would be satisfied.

1LISTNUM 1 \l 18704            The second criterion involves an assessment of the extent, if any, of alternative competitive supply in the provision of the input in question, including the scale, market coverage, service quality, price levels and general substitutability of such third party alternatives.


1LISTNUM 1 \l 18705            We believe the relevant geographic market for this analysis is the metropolitan area because at the retail level local exchanges mean nothing to the incumbents, the competitors or customers.  Where a former monopoly is found to be dominant or to possess significant market power for the supply of a specific facility, the second element of the test would be satisfied.

1LISTNUM 1 \l 18706            So how do we operationalize these criteria?  Implicit in our criteria, consistent with the policy direction, is an analysis of market power.  The test for significant market power, which follows the principles of competition law, has been relied upon by the Commission for the past 15 years.  We submit that you don't need to reinvent the wheel.  You can build on this experience and use the same analytical tools to get where you are going.

1LISTNUM 1 \l 18707            The CDN decision, for example, took a very similar path to that which we are recommending.  In that case, the Commission looked at many of the factors we have identified in our criteria, which are the same or similar to those used in an analysis of significant market power.  It determined which elements of the services were subject to market power and it rendered its decision accordingly.


1LISTNUM 1 \l 18708            That's not to say we don't have some quibbles with that decision.  For example, we think making a distinction between the speeds of facilities was not justifiable and today would contravene the policy direction's emphasis on technology and competitive neutrality.  But we think the general approach, which fundamentally looks at the degree of market power held by the incumbent over an upstream facility and the impact that dominance has on competition in the downstream market, is irreproachable.

1LISTNUM 1 \l 18709            Generally speaking, the CRTC should have much of the data required for such analysis from this and past proceedings, as well as from its annual industry data collection exercise.  Indeed, the Commission went through the same process last year in determining to mandate access to Ethernet services while reserving the issue of essentiality to this proceeding.

1LISTNUM 1 \l 18710            Where we differ from the Commission's past practice is in the way that "essential services" are defined.  In the CDN, DSL and Ethernet proceedings, the Commission had to find that there was significant market power being exercised over the upstream supply of those facilities in order to find that it was a competitor service at all, and then went on to further define those services as Category 1 or Category 2.


1LISTNUM 1 \l 18711            We recommend a streamlined approach that gets rid of many of the unnecessary distinctions that plague the current system.  With respect to the Commission's six proposed categories of services, for example, we would say that Categories 2 and 4, what the Commission has called "conditional essential" or "conditional mandated non‑essential", should simply be recognized as Category 1 essential.

1LISTNUM 1 \l 18712            If there is upstream ILEC dominance, and since forbearance in the downstream is based on access to these upstream facilities, then, in our view, they are essential and should be mandated as such until the facts on the ground change.  When sufficient alternative sources of supply develop, then a party can apply to have that market forborne, secure in the knowledge that competition will discipline pricing.

1LISTNUM 1 \l 18713            And to offer a few words about pricing, except for TELUS all parties agree that essential facilities should be priced at Phase II costs, plus a fixed mark up of 15 percent.  This is streamlined, administratively simple and consistent with the views of the experts.


1LISTNUM 1 \l 18714            Finally, we submit that MTS Allstream's test meets the objectives of act, fully captures the intent of the government's policy direction and is consistent with the modified local forbearance framework.

1LISTNUM 1 \l 18715            With respect to the act, our approach meets a number of the objectives set out in section 7:  it will help facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions; it will ensure we can render reliable, affordable and accessible telecommunications services of high quality, accessible in urban and rural areas across Canada; it allows us to respond to the economic and social requirements of users; and, in particular, it will foster increased reliance on market forces at the retail level through efficient and effective regulation at the wholesale level.


1LISTNUM 1 \l 18716            Our testing criteria also meet the specific instructions contained in the policy direction with respect to the Commission's review of access to wholesale services:  it is technologically and competitively neutral; it takes into account the potential for incumbents to exercise market power in the absence of mandated access to wholesale services and it recognizes the impediments faced by new and existing carriers seeking to develop competing network facilities; and our test is consistent with the modified forbearance framework which clearly relies on providers who compete downstream by using a mix of their own and leased facilities.

1LISTNUM 1 \l 18717            The policy direction requires that the Commission rely on market forces to the maximum extent feasible.  You have heard a lot of evidence in this proceeding as to what's feasible and what's not.  We believe that our criteria for essential facilities will ensure that there is a wholesale market that genuinely makes it feasible to rely on competition at the retail level.

1LISTNUM 1 \l 18718            We strongly urge the Commission to take a pragmatic and realistic approach to its deliberations based on the facts and the evidence that has been provided in this proceeding and that reflect more than 15 years experience.  We believe that such an approach will foster a robust competitive environment that encourages companies to invest and innovate at all levels of the network to the benefit of all Canadians.

1LISTNUM 1 \l 18719            Thank you.

1LISTNUM 1 \l 18720            THE CHAIRPERSON:  Thank you very much.


1LISTNUM 1 \l 18721            I didn't hear any reference to phaseout.  Does that mean that under your scheme, basically, there wouldn't be anything in the bucket which we called non‑essential subject to phaseout, that everything would be, as you suggest, essentially conditional essential or non‑essential and if the condition is met the market will be forborne?

1LISTNUM 1 \l 18722            MS GRIFFIN‑MUIR:  Actually, just on the list that you gave us there are some services that we have identified that would fall into the phaseout category.

1LISTNUM 1 \l 18723            THE CHAIRPERSON:  Okay.

1LISTNUM 1 \l 18724            MS GRIFFIN‑MUIR:  Then, when we are referring to being forborne, upstream services being forborne, we are actually referring to services that initially ‑‑ or services that are deemed essential, but in specific geographic markets there is sufficient competition in the upstream market to allow for forbearance.

1LISTNUM 1 \l 18725            THE CHAIRPERSON:  And what are your recommendations, then, both in terms of length of phaseout so there can be contracting during the phaseout period and whether there should be price increases during the phaseout period?


1LISTNUM 1 \l 18726            MS GRIFFIN‑MUIR:  Okay, with respect to the length of the phaseout period, that would depend on the service.  So for access and transport within the metropolitan area, we would have a longer phaseout period, five years.  For services that are more oriented towards database or services of that nature shorter, three years.

1LISTNUM 1 \l 18727            MR. PIERCE:  And then going forward, when services that were classed as essential came to be subject of an application for forbearance by an incumbent and the Commission decided to forbear, that decision would, presumably, date from the date of the decision, there wouldn't be a phaseout in that case.

1LISTNUM 1 \l 18728            THE CHAIRPERSON:  What about the issue of pricing during the phaseout?

1LISTNUM 1 \l 18729            MS GRIFFIN‑MUIR:  Okay, the pricing we think would remain at the tariff rate.

1LISTNUM 1 \l 18730            THE CHAIRPERSON:  So you feel like Rogers, that would be rubbing salt in the wounds, if you increase it?

1LISTNUM 1 \l 18731            MS GRIFFIN‑MUIR:  Well, to a certain extent, but I think it also reflects the fact that for many services today, depending on what the Commission ultimately decides, they are priced, actually, well above Phase II plus 15 percent.


1LISTNUM 1 \l 18732            For example, if we took DS‑3 and above speeds, the rate that we have been mandated ‑‑ or all ILECs have been mandated to provide that service at was Bell's lowest retail rate, so that is ostensibly a retail rate.  And when you are talking about increasing prices, because, obviously, that would be the reason we would want to be able to incent people to get off the service, the notion is that you are talking about a price increase not a price decrease.

1LISTNUM 1 \l 18733            THE CHAIRPERSON:  So TELUS's notion of fully compensatory rate, meaning Phase II costs plus mark up to recover a proportionate share of fixed government costs and the embedded cost differential, is another one of those fictions you were talking about, Mr. Pierce?

1LISTNUM 1 \l 18734            MR. PIERCE:  Yes, Mr. Chairman.  I think you have put well to them, in questioning their panel, about being content to have an averaged approach across rate bands, in terms of geographic market definition, but wanting a very specific approach when it comes to costing.


1LISTNUM 1 \l 18735            It also bears on that issue of negotiation during any tariffed period, so that someone could, presumably, get a better deal during a period of time when clearly the services is defined as not being subject to competitive supply, and we think that has obvious implications, in terms of price discrimination, that really should not be mandated by the Commission or approve by it implicitly.

1LISTNUM 1 \l 18736            THE CHAIRPERSON:  Yes.  Any questions from my colleagues?

1LISTNUM 1 \l 18737            Okay, thank you very much, then.

1LISTNUM 1 \l 18738            I think we will break for an hour and we will resume, then, at 1:30.

1LISTNUM 1 \l 18739            Thank you.

‑‑‑ Upon recessing at 1220 / Suspension à 1220

‑‑‑ Upon resuming at 1331 / Reprise à 1331

1LISTNUM 1 \l 18740            THE CHAIRPERSON:  Mr. Ruby, welcome back.

1LISTNUM 1 \l 18741            MR. RUBY:  Thank you, Mr. Chairman.

1LISTNUM 1 \l 18742            THE CHAIRPERSON:  Go ahead.

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 18743            MR. RUBY:  Mr. Chairman and commissioners, in the 30 minutes allotted to me my goal is quite modest.

1LISTNUM 1 \l 18744            THE CHAIRPERSON:  You don't have to take 30, you can be shorter.

1LISTNUM 1 \l 18745            MR. RUBY:  Yes, I heard a rumour about that.


1LISTNUM 1 \l 18746            I would like to try and just help the Commission keep at the forefront of its deliberations three key points.  The first point is that the objective of wholesale regulation is to encourage facilities‑based competition arising both from providers that use a hybrid of their owned and leased facilities and fully‑owned facilities.

1LISTNUM 1 \l 18747            The second point is that access services should be subject to different regulatory treatment than network services, because they have different characteristics.  For example, treat CDN different from local loops.  And in this regard, the Commission's six‑bucket model properly takes this approach in my submission.

1LISTNUM 1 \l 18748            The third point I would like to make to you today is simply that two providers are not enough.  The Commission should resist the temptation to declare victory and abandon the field when there are merely two sets of facilities in a market and no other source of competition.

1LISTNUM 1 \l 18749            As well, Mr. Chairman, as has already been noted today, woven through some of your questions that were asked during cross‑examination, there appeared to be a concern with how the Commission would operationalize the essential facilities test and the Commission's six categories of wholesale services.


1LISTNUM 1 \l 18750            I will try in this regard to assist you by walking through how to apply the analysis with respect to the residential market example, which I think has been less discussed today than the business model.

1LISTNUM 1 \l 18751            So turning now to my first point. The first question I would suggest the Commission should ask in this proceeding is what is the end goal for what we are doing?  What we are trying collectively to do is achieve vigorous and sustainable competition.  I think that would be non‑controversial, but who it is between is important.  It is between; telecom providers that use only facilities they own, and providers that use a hybrid of facilities that they own and lease.  And I would suggest, actually, everybody falls in the second bucket as far as I can tell from the evidence, some more than most obviously.

1LISTNUM 1 \l 18752            But hybrid models of owned and leased facilities offer value to Canadians.  Hybrid providers are not second class citizens, which is apparent from the Governor in Council's definition of facilities‑based competition, as set out in its variance of the Commission's forbearance decision and consistent with the policy direction.  And I don't propose to take you through the details again.  I think some of the other parties have touched on that already.  But this has to be the starting point for any discussion about wholesale regulation.


1LISTNUM 1 \l 18753            And just to depart from this point for a moment, you heard from the Bureau, first up today, a discussion really that was about resale and the problems if you only deal with the application layer and you don't deal with the network layer or the physical layer.  That is not really what we are talking about.  That is a strawman.  What we are dealing with is hybrid, that is combining the two, facilities that you own and facilities of others.

1LISTNUM 1 \l 18754            Any approach that embarks from a different starting point should be viewed with caution.  For example, Bell Canada premises its position in this proceeding on the incorrect view that our collective goal is confined to what it calls end‑to‑end facilities‑based competition.

1LISTNUM 1 \l 18755            And I would note in passing that Bell has actually been driven to use this new terminology which doesn't show‑up anywhere else, because the Governor in Council defined facilities‑based competition in a way that doesn't get Bell where it wants to go and the Governor in Council defined facilities‑based competition in a way that includes the hybrid model.


1LISTNUM 1 \l 18756            And really, what Bell has done by including the words "end‑to‑end" is try and shift the debate over the starting point of regulation away from where the government and the Telecommunications Act have put us.  I am sure that the Commission will no doubt see this fiddling with words as a tactical manoeuvre that colours all of Bell's position.

1LISTNUM 1 \l 18757            Similarly, my friend Mr. Osborne also starts his analysis on the incorrect premise that what we are trying to achieve is only end‑to‑end facilities‑based competition, which I would submit undermines his whole report.  He is starting in the wrong place.

1LISTNUM 1 \l 18758            The second point, if I can come to that, to keep top of mind is that wholesale services with different characteristics should be subject to different types of wholesale regulation.

1LISTNUM 1 \l 18759            The Commission has adopted this approach on a preliminary basis by providing six buckets into one of which each wholesale service must fall.


1LISTNUM 1 \l 18760            Even before the Commission provided its list of six buckets, Primus and Globility had already provided to the Commission a bucket approach.  Primus and Globility's categories are described in its opening statement and they match up roughly with three of the six buckets that the Commission later provided to us.

1LISTNUM 1 \l 18761            I pause here to note that wholesale services with different characteristics have historically been treated differently by the Commission.  The Commission's past decisions with respect to the treatment of wholesale services are a very useful resource for you to draw upon

1LISTNUM 1 \l 18762            The Commission should consider the detailed reasoning in its past decisions and some of those decisions are quite recent.  For example, it should look at its decisions with respect to CDN, HSA, GAS and Ethernet, and I would suggest that in most cases you will find that the Commission's previous logic continues to apply and is consistent with the policy direction.

1LISTNUM 1 \l 18763            While in this proceeding we are reviewing wholesale services with fresh eyes, there is no need to pretend that there is not a long history behind the current approach to wholesale services.

1LISTNUM 1 \l 18764            I would like to now turn and look straight at the residential market to highlight how a wholesale analysis can be implemented and to underline what is really my third key point:  Two providers are not enough for sustainable vigorous competition.


1LISTNUM 1 \l 18765            Here, let me reiterate that I appreciate that there is a temptation to declare the residential market a competitive success and deregulate.  After all, it is the only market with a second set of transmission facilities largely, but not ubiquitously, paralleling the ILEC facilities, in fact, declaring victory and leaving the arena, exactly what the Bureau proposes you do, which I have to admit, for a competition authority, I find quite odd.

1LISTNUM 1 \l 18766            And I would note that Dr. Ware seemed to find it odd as well on behalf of Rogers when he kept saying, I think, over and over again:  In competition analysis, it is very hard to slip a four‑to‑three merger by the regulator, never mind a three‑to‑two.  But the Bureau has given you its position.

1LISTNUM 1 \l 18767            Mine is simply that two is not enough and I would ask you to resist the temptation to just declare victory and instead look carefully at how the deregulated duopolists will likely behave.

1LISTNUM 1 \l 18768            So let me set the stage for a moment with separating out some of these facilities that fall into the buckets.


1LISTNUM 1 \l 18769            We can start our illustrative analysis of the residential market by looking at two very different aspects of residential services.  First, there are the local loops on one hand with similar services, and second, we can review the facilities used to move traffic in and out of central offices, backhaul to points of presence and out across the rest of the network.

1LISTNUM 1 \l 18770            What I am trying to do here, Mr. Chairman and commissioners, is highlight the difference between how to use your essential bucket and your conditional essential bucket with real facilities.

1LISTNUM 1 \l 18771            With respect to local loops, it appears to be common ground that for the foreseeable future no one is going to have a third line into Canadian homes.  We have only two residential access facilities:  ILEC and cable.

1LISTNUM 1 \l 18772            Now, the ILECs point to a variety of wireless technologies that have been available for sometime without attracting more than a small number of niche customers and they also point to one new technology in particular as having the potential to provide widespread additional methods of access to Canadian homes.


1LISTNUM 1 \l 18773            With respect to the technologies that have already been rolled out such as satellite in Inukshuk and some others that we have heard a lot about, there is no evidence that customers see them as a general substitute for wireline internet or telephony.

1LISTNUM 1 \l 18774            I pause here to note that with respect to local telephony, the replacement of one's wireline phone with a cell phone seems to be confined to a niche market of less than 5 percent of the population and I take that figure out of the Monitoring Report.

1LISTNUM 1 \l 18775            The new wireless technology that everybody is talking about in this proceeding is WiMAX.  This is a technology being tested by a number of parties, including my client Primus, but whether it will ever be ready for widespread rollout, and if so, when, is not a matter for which the Commission can plan.

1LISTNUM 1 \l 18776            This has been mentioned before but as was the case with the ILECs' warning of the coming of cable telephony more than 15 years before it happened, wishing WiMAX to be ready now will not make it so.  We simply have no idea when it will be ready, if at all.

1LISTNUM 1 \l 18777            It is because of the unpredictability of potentially disruptive technologies such as WiMAX that Primus and Globility submit that the Commission should not roll the dice by anticipating if or when WiMAX will be ready.


1LISTNUM 1 \l 18778            In addition, contrary to the ILECs' submissions, there is no factual evidence that the mere possibility of a new technology coming down the road has disciplined ILEC behaviour.  If and when a new technology provides a third mass market connection to Canadian homes, I think we can all be confident that the ILECs will bring it to your attention and we can deal with it at that time but we are just not there yet.

1LISTNUM 1 \l 18779            Let us move back to today's residential access facilities.

1LISTNUM 1 \l 18780            So there is an ILEC and a cable company, and in some greenfield situation there is only one or the other.

1LISTNUM 1 \l 18781            Here again, I would pause and note that a duopoly model for residential is being promoted to you as being sufficient but it is clearly not a very robust model because when the parties look at new rollouts and new residential developments, for example, we are suddenly back to monopoly.  So I would query just how robust that kind of duopoly competition is.


1LISTNUM 1 \l 18782            Now, the ILECs say that in an unregulated duopoly environment, the competitors will be able to negotiate for the use of ILEC facilities.  But despite having all the information it needed, on cross‑examination, Bell was unwilling to advise the Commission of what price it would offer to charge Globility for the local loops used by Globility today.

1LISTNUM 1 \l 18783            And so having everything it needed to do, it would not say if it was going to try for a 10 percent price increase, 100 percent, 1000 percent.  It just wouldn't say.  And I submit to you that this was telling of what competitors can expect from the ILECs post regulation and that allows us a glimpse of the 800‑pound gorilla that wears the ILECs' friendly mask.

1LISTNUM 1 \l 18784            Let me put our concerns about these kinds of negotiations this way.  It is tough to dance with an 800‑pound gorilla whether it is friendly or not.

1LISTNUM 1 \l 18785            One can only truly negotiate where there are alternative providers.  In this regard, it is notable that Rogers, as the largest cable company in the country, testified that it had no business plan to offer wholesale services to its competitors in the absence of regulation.

1LISTNUM 1 \l 18786            In a deregulated environment, the ILEC would be the only wholesale access provider.  As a result, in the absence of regulation, a competitor such as Primus will very likely not be able to get access to its customers.


1LISTNUM 1 \l 18787            Let us be perfectly clear here.  The Commission should make its decision in this proceeding on the basis that if it releases the ILECs from regulation there will be a residential duopoly and no more than that.  We are looking at two, not two plus.  It is a black and white choice.  There is no grey here.

1LISTNUM 1 \l 18788            That brings me to the last point I would like to make to you.  Two players are not enough to have vigorous sustainable residential competition.

1LISTNUM 1 \l 18789            Now, the ILECs say two is enough and they implicitly say:  Trust us.  I heard Mr. Hofley say explicitly:  Well, no, no, the market is going to discipline us.  In that regard, they point to the theoretical view of their experts, which I would note are contradicted by Primus' and MTS' expert, but they don't offer any factual Canadian data supporting their position.

1LISTNUM 1 \l 18790            But there is some factual data on the record demonstrating that two is not enough and I would just like to point you to a few examples.

1LISTNUM 1 \l 18791            For example, Shaw answered an interrogatory in this proceeding saying that it would compete vigorously with the ILECs if it was deregulated, presumably with respect to price and other matters.


1LISTNUM 1 \l 18792            In contrast, we saw that report in the Globe and Mail where Shaw's CEO publicly stated that cable company and ILEC prices would be going up, not down.  This is hardly the type of response that is predicted by the ILECs' experts.

1LISTNUM 1 \l 18793            Another example of the factual evidence not being consistent with the ILEC experts' position was the data put forward by Mr. Crandall concerning U.S. wireline prices which have remained steady for a decade.  You will remember there was that chart we made extensive use of on cross‑examination.

1LISTNUM 1 \l 18794            So wireline prices have remained steady notwithstanding the fall in telecom equipment costs, drastically falling wireless prices and the uptake of cellular telephone use, and the increased share of the local telephony market captured by the cable companies.

1LISTNUM 1 \l 18795            That U.S. wireline pricing experience is consistent with the evidence of Mr. Yates, who was not cross‑examined by any party.  It is consistent with his evidence that in a similar BDU market, Bell and Rogers have not engaged in vigorous price competition.


1LISTNUM 1 \l 18796            The fact evidence is that ILEC pricing has not been disciplined by any of these factors, even when those factors are combined.  Simply put, we need the competition which hybrid lease and ownership providers such as Primus and Globility can offer as they grow.

1LISTNUM 1 \l 18797            With respect to the theoretical considerations of duopolies, I recommend for your review the Netherlands OPTA paper called "Is two enough?" a great title.

1LISTNUM 1 \l 18798            I suggest that you read it carefully to focus on the portion of the report dealing with non‑collusive oligopoly.  The balance of the report deals with collusive conduct, which is not being alleged by anybody in this proceeding.

1LISTNUM 1 \l 18799            I would ask you, Mr. Chairman and Commissioners, please don't fall for The Bureau and the ILECs attempts to mix together the analysis of collusive and non‑collusive conduct.  It is clear with respect to non‑collusive conduct, so not even tacit collusion, that this OPTA Report concludes, as does Dr. Selwyn, that there is a substantial risk of a non‑competitive outcome.

1LISTNUM 1 \l 18800            The Commission should be regulating in a manner that prevents ILECs and cable companies from watching each other's actions and, in good faith and in their best interests, raising prices or maintaining their prices over the long term.


1LISTNUM 1 \l 18801            With that background we can try to place local loops in the right basket.

1LISTNUM 1 \l 18802            Local loops are an example of what Primus calls access for services which fall in the Commission's "essential" basket.  With respect to access services the logic of incentives for investment in innovation simply do not apply.

1LISTNUM 1 \l 18803            A transition period with respect to access services will not lead to more innovation and investments.  Motivating competitors to invest by increasing wholesale prices is not the issue.  Ability is what counts with respect to access.

1LISTNUM 1 \l 18804            Deregulating access in three to five years will simply cause a company like Primus to go into harvesting mode and weaken Canadian competition, not strengthen it.

1LISTNUM 1 \l 18805            Turning away, now, from local loops, we can look at the second aspect of residential facilities I wanted to cover with you this afternoon, the facilities that move traffic from the ILEC central office back through the network.

1LISTNUM 1 \l 18806            Unlike access facilities over time a portion of these facilities may be replicated.  In the analytical paradigm attached to Primus and Globility's opening statement we called these facilities network facilities.


1LISTNUM 1 \l 18807            We expect that as competitors increase the volume of traffic they receive from their customers, the construction of new network facilities becomes justifiable.  This is really the steppingstone approach.

1LISTNUM 1 \l 18808            Importantly I would note that the steppingstone approach with respect to network facilities can work and it can work in more than one matter, which was a fact that TELUS admitted on cross‑examination.

1LISTNUM 1 \l 18809            Most simply, when a single facility becomes more expensive to lease than to build ‑‑ this is the key ‑‑ and the revenues associated with the traffic carried by that facility are sufficient to pay for a build, the steppingstone approach will be a competitor to replace a leased facility with its own facility.  This is what Primus is trying to do by building a fibre ring in Toronto which you have heard about.

1LISTNUM 1 \l 18810            In this regard you will recall that on the cross‑examination of TELUS about how as competitor attracts customers and traffic it is more economical for a competitor to build its own facilities in order to replace a group of DS‑3 lines used to provide ethernet service.


1LISTNUM 1 \l 18811            Now, a second aspect of the steppingstone approach that leads to increased construction involves a competitor using leased network facilities over a geographically widespread network so it does not have to construct all facilities all at once and can use the revenues it derives from the portion of the network in which it leases facilities to finance the construction of specific transmission facilities elsewhere in the network.

1LISTNUM 1 \l 18812            Keeping wholesale prices at the Phase 2 plus 15 per cent level allows the steppingstone approach to work best ‑‑ I'm not saying it has to be at that level, but it works best at that level ‑‑ and prevents the ILECs from draining construction funds from their competitors.

1LISTNUM 1 \l 18813            It will take time for additional network facilities to be built out on an efficient basis.  In this regard I note that it has taken TELUS nine years so far to build out its limited out of territory fibre and it took Bell ‑‑ there was some debate, but certainly it took Bell over 13 years to build it's first round of fibre.


1LISTNUM 1 \l 18814            Deregulating network CDN now, even with a five‑year transition, would kill the competitive market.  Five years is simply insufficient time to build the facilities that are necessary.

1LISTNUM 1 \l 18815            I would note here that I'm not suggesting that every competitor has to build everything.  No doubt some competitors will build part of the network, some will build others.  If there is a competitive market they can make commercial deals among each other.

1LISTNUM 1 \l 18816            But even taking that scenario in mind, five years is not enough.  That I think is the evidence you have before you.

1LISTNUM 1 \l 18817            Let me put it a different way.  With respect to network facilities, firing a gun at a horse does not incent the horse to be actually able to outrun the bullet.  All right?

1LISTNUM 1 \l 18818            The key difference between essential and conditional essential categories is whether there is light at the end of the competitive tunnel.

1LISTNUM 1 \l 18819            To use Bell's phraseology, essential facilities have no clearly identifiable path to competition, but conditional essential services are characterized by a non‑speculative light we can see today at the end of the tunnel.


1LISTNUM 1 \l 18820            The essential category should include facilities for which we cannot reliably predict alternatives will be rolled out on a widespread basis.  Putting services in this bucket should not involve running after whiz‑bang developments that some claim are just around the corner.  The Commission should insist on strong evidence that we have already turned the corner before pouring a service out of the essential bucket.

1LISTNUM 1 \l 18821            Essential facilities such as residential local loops fall into this category.

1LISTNUM 1 \l 18822            The "conditional essential" category includes facilities that can be built as competitors gain market share and revenues that can support new construction, but should not be deregulated until they are actually built.

1LISTNUM 1 \l 18823            The difficult question in this regard is to determine what is the condition that causes deregulation.  It strikes me that is a little bit what we have been struggling with over the last several weeks.

1LISTNUM 1 \l 18824            TELUS seems to think just time will do the trick.

1LISTNUM 1 \l 18825            Reading between the lines I would say that TELUS says that the condition is just the passage of three to five years.  This cannot be right.  I submit that the condition should be evidence of a vigorous obtainable competition.


1LISTNUM 1 \l 18826            Now, at the operational level the Commission can use what we have called proxies or a factual trigger to decide whether a review in a particular market should be conducted.

1LISTNUM 1 \l 18827            For example, if an ILEC advised the Commission that a particular percentage ‑‑ I know I heard 30 per cent should be used, I would suggest probably that it should be the other way around and say well, 70 per cent of the network transmission facilities in a wire centre have been duplicated, that could cause the Commission to conduct a review of whether there is vigorous sustainable competitive market in that wire centre.

1LISTNUM 1 \l 18828            If the condition is found to be met, a transition period would allow for the remaining percentage ‑‑ in my example 30 per cent ‑‑ that 30 per cent of facilities to still be built.

1LISTNUM 1 \l 18829            The key here is the possibility of self‑supply where the mere passage of time would not be sufficient to trigger the condition.  Time and the possibility of self‑supply should not be the proxy.


1LISTNUM 1 \l 18830            Now, just so we are clear as to Primus' position, there is no need to provide for regulatory incentives to encourage parties to build.  They will do so naturally, as they are doing now, when they have sufficient revenues to do so.

1LISTNUM 1 \l 18831            Looking at the issue from a network‑wide perspective, construction incented by raising the rates of the ILECs would merely encourage inefficient entry which is not in the interest of the telecommunications system as a whole.  You have Dr. Selwyn's evidence on that point on cross‑examination.

1LISTNUM 1 \l 18832            Finally, let me just take a moment to summarize Primus And Globility's position which has four major components.

1LISTNUM 1 \l 18833            First, competitors using hybrid, leased and owned facilities provide value to the Canadian telecommunications system.

1LISTNUM 1 \l 18834            Second, I encourage the Commission to use our opening statement to inform the Commission's essential, conditional essential and interconnection categories.  There is a lot of material in the chart we provided.

1LISTNUM 1 \l 18835            Third, remember to treat access and network facilities differently because their characteristics are different in important ways, a fact previously recognized by the Commission in its decision with respect to unbundled loops and CDN.


1LISTNUM 1 \l 18836            It is very easy to use evidence on one point to deal with a facility that falls on a different bucket and you should be on guard against that.

1LISTNUM 1 \l 18837            Finally, with respect to the residential market regulate in a manner that mitigates against the substantial risk of a cosy duopoly in the residential market by taking into account the reality of a lack of price competition.

1LISTNUM 1 \l 18838            In a nutshell, the telecommunications market and Canadian consumers need competitors such as Primus and Globility in order to obtain the long‑term benefits of a vigorous, sustainable, competitive system.

1LISTNUM 1 \l 18839            Lifting wholesale regulation in the residential market will result in the loss of the benefits brought to consumers by competitors' participation.  For example, we would lose from Globility and Primus continued investment in intelligent facilities such as ADSL2plus, DSLAMs, that they attach to old copper wires to the ILEC to increase DSL speeds.


1LISTNUM 1 \l 18840            Another example of what we would lose are the innovative services such as Primus' telemarketing guard which is a form of do not call blocking that doesn't require the elaborate procedures that the Commission is currently engaged in.

1LISTNUM 1 \l 18841            As noted by Dr. Selwyn, it is the competitors that innovate, not the ILECs, and we ask that you not nullify the last 10 years of the Commission's attempts to support competition.  You should not be satisfied with a cosy duopoly and you should strive for a vigorous competitive market.

1LISTNUM 1 \l 18842            Those are my comments, Mr. Chairman.

1LISTNUM 1 \l 18843            THE CHAIRPERSON:  Thank you.

1LISTNUM 1 \l 18844            This is now the second time you have taken the opportunity to put in a commercial for Primus' telemarketing guard.

1LISTNUM 1 \l 18845            MR. RUBY:  I thought it was ‑‑

1LISTNUM 1 \l 18846            THE CHAIRPERSON:  I will bite.  Explain to me how it works.

‑‑‑ Laughter / Rires

1LISTNUM 1 \l 18847            MR. RUBY:  Okay.  Well, I will do my best.


1LISTNUM 1 \l 18848            This came up while the proceeding was ongoing.  They came up with this clever idea which they tell me took three months from idea to implementation.  What it is, is their local customers, they get this service for free.  When they sign up for it Primus has a list of people it has identified, or phone numbers it has identified as being telemarketing and the customer can choose to have all of those people blocked, it can choose to have the call come through and they be told with this sort of little commercial "This is a telemarketing call", and various other choices.

1LISTNUM 1 \l 18849            So the choice in the customer's hands, but they get the information upfront.  And then by hitting "*" ‑‑ I forget the exact number ‑‑ they can actually add to the list of people that they want blocked.

1LISTNUM 1 \l 18850            But this only works ‑‑

1LISTNUM 1 \l 18851            THE CHAIRPERSON:  So when the next telemarketing comes and it comes from outside the list that Primus furnishes and I realize it's telemarketing, I can just push "*" and hang up and it goes on that list?

1LISTNUM 1 \l 18852            MR. RUBY:  And it goes on that list.  And then later you can choose to let people through, change the list.  It is completely up to the customer.

1LISTNUM 1 \l 18853            But my information ‑‑ I don't want to give evidence on this, but my information is that when they went out to their customers and said, you know, "Would you like this kind of thing?", the customers didn't just say we would like it but they say "Please negative option market it to us.  Don't even ask us, just start blocking the calls, please."


1LISTNUM 1 \l 18854            But this only works because Primus can put its equipment in the call path.  It's not a reseller.  It can use its intelligent equipment to do new things.

1LISTNUM 1 \l 18855            I hope that  ‑‑ that's the commercial.

1LISTNUM 1 \l 18856            THE CHAIRPERSON:  Enough on the commercial, back to page 14 of your submission.

1LISTNUM 1 \l 18857            I don't quite understand, since you basically say there should be no phase out, everything should be phased out on conditionality...

‑‑‑ Background noise / Bruit de fond

1LISTNUM 1 \l 18858            THE CHAIRPERSON:  Let me start again.  If I understood you correctly, you basically see either essential or conditional essential.  You don't see anything that should be subject to phase out.  It's a condition that ‑‑ but then on page 14 you suddenly say:  "even once the condition arises there should still be a phase‑out."

1LISTNUM 1 \l 18859            I don't quite understand.

1LISTNUM 1 \l 18860            MR. RUBY:  Let me try to make it clear.


1LISTNUM 1 \l 18861            I have not dealt with the services that we say are not essential.  You will get our list later today and I think, as you have heard from others, there are a number of things that we see do fall into the bucket and would be subject to a phase‑out.  There we have had to take off three years, five years, and so on.  So you will have all that information.

1LISTNUM 1 \l 18862            THE CHAIRPERSON:  Good.

1LISTNUM 1 \l 18863            When something is conditional essential, essential subject to a condition, take your example here, you wanted 70 per cent rather than 30 per cent.  So the 70 per cent facilities have been duplicated.

1LISTNUM 1 \l 18864            Clearly it is feasible and economical to do it, and still you want a transition period after that point?

1LISTNUM 1 \l 18865            Isn't there some illogic here?

1LISTNUM 1 \l 18866            Since you have now proven clearly that the condition has been met, why do you need a phase‑out on top of it?

1LISTNUM 1 \l 18867            MR. RUBY:  All right.  Let me explain that.


1LISTNUM 1 \l 18868            The nature of the system is that the routes go between Points A and B.  A route between Point A and C is not a substitute for a route between A and B.  So having proven that 70 per cent of those circuits or routes have been replicated, if they don't get you from A to B you are still stuck with the ILEC as being the only provider on the route from A to B.

1LISTNUM 1 \l 18869            All I am suggesting is that when you have built out, in my example, 70 per cent, that would be an indication that in that wire centre everybody could do it and we should just provide enough time to build out the rest.

1LISTNUM 1 \l 18870            THE CHAIRPERSON:  The fact that such a large number of routes have been duplicated you don't think is sufficient pressure to keep the ILEC honest, that you actually have to provide for ‑‑ I mean, I would have thought ‑‑ in that scenario there is no need for a transition period.

1LISTNUM 1 \l 18871            MR. RUBY:  I think the experience of my client, and the evidence you have heard, I think indicates that ILECs will take the opportunity and ‑‑ they will forgive me to say ‑‑ milk the environment as it transitions to deregulation as far as it will go.

1LISTNUM 1 \l 18872            THE CHAIRPERSON:  All right.

1LISTNUM 1 \l 18873            Any questions?  All right.

1LISTNUM 1 \l 18874            Thank you very much, Mr. Ruby.

1LISTNUM 1 \l 18875            Madam Secretary, who is next?

1LISTNUM 1 \l 18876            THE SECRETARY:  Thank you.

1LISTNUM 1 \l 18877            For the benefit of our listeners, the next participants was PIAC who decided to withdraw their intention to participate.


1LISTNUM 1 \l 18878            Therefore, our next panel is Cybersurf Corp.

1LISTNUM 1 \l 18879            Mr. Tacit.

1LISTNUM 1 \l 18880            THE CHAIRPERSON:  Mr. Tacit.

‑‑‑ Pause

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 18881            MR. TACIT:  Thank you.

1LISTNUM 1 \l 18882            I have with me Mr. Mercia who was Cybersurf's witness.

1LISTNUM 1 \l 18883            Mr. Chair, Commissioners, the outcome of this proceeding is going to be crucial in determining the future state of competition in telecommunications in this country.

1LISTNUM 1 \l 18884            In this oral argument I am going to address the various questions posed by the Commission in the Public Notice, but before doing so I wanted to set the context of my remarks.

1LISTNUM 1 \l 18885            Historically, wholesale services provided by the ILECs were developed in a silo environment.  As each retail market for telecommunications services was opened up to competition, corresponding wholesale services were developed that enabled competitors to provide retail services that are similar to those provided by the ILECs.


1LISTNUM 1 \l 18886            The result has been a patchwork of wholesale services, some of which overlap in functionality but each of which can only be used for specific approved competitive purposes.

1LISTNUM 1 \l 18887            Many of these services also contain a number bundled functionalities or provide access to a number of bundled ILEC network elements and by doing so are imprinted with the characteristics of the legacy networks in which they were conceived.

1LISTNUM 1 \l 18888            The same is also true in the case of TPIA service provided by the cable carriers.  The implication of this regime is that competitors can, for the most part, only provide retail services that are the same or very similar to those provided by the ILECs or the cable carriers, which I will collectively call the incumbent carriers from now on.

1LISTNUM 1 \l 18889            The widespread use of TCP/IP protocol standards and protocols in recent years has changed everything.  When competitors can access incumbent carrier network functionalities on reasonable terms and conditions and add their own facilities to them, they can create broadband platforms that support telephone, high‑speed internet access IPTV and other services applications and bundles.


1LISTNUM 1 \l 18890            Competitor access to incumbent carrier network functionalities has significant advantage over merely obtaining end‑to‑end access to the incumbent carriers DSL or TPIA broadband platforms or simply reselling the incumbent carriers high‑speed internet services.  This is because competitors can, through such unbundled access, differentiate the speed and quality of service of their retail offerings from those of the incumbent carriers.

1LISTNUM 1 \l 18891            This means that competitors can now earn much larger revenues from each user when obtaining essential services such as local loops and collocation from incumbent carriers, providing the competitors with a greater incentive to add their own facilities and expand and innovate their own networks in order to diversify even further and provide even more innovative services to consumers, increasing revenues per user once again.

1LISTNUM 1 \l 18892            These are new opportunities that were simply not available to competitors when the local competition decision was rendered.  This is the reason why granting competitors access to incumbent carriers essential facilities does stimulate investment and innovation in both networks and services.


1LISTNUM 1 \l 18893            In other words, the societal and economic benefits of allowing competitor access to incumbent carrier essential facilities has been magnified and the cost has been reduced relative to the situation that existed before the widespread adoption of TCP/IP‑based technologies.

1LISTNUM 1 \l 18894            We therefore caution the Commission not to unduly restrict the wholesale regime to solve a problem that does not presently exist.  Significant innovation and vigorous competition result when competing broadband platforms are employed to provide communication services.

1LISTNUM 1 \l 18895            The UK experience summarized in the portion of the OFCOM 2007 report reproduced as Cybersurf Exhibit 10 and discussed with Dr. Crandall in cross‑examination by Cybersurf makes this abundantly clear.

1LISTNUM 1 \l 18896            Another recent and important development is that residential retail service bundles now constitute distinct product markets.  As The Companies noted in this proceeding it is estimated that 90 per cent of households in Bell Canada's traditional territory of Ontario and Québec will subscribe to bundles by the end of 2008.

1LISTNUM 1 \l 18897            The experience of other carriers, including Cybersurf is consistent with Bell Canada's experience.


1LISTNUM 1 \l 18898            These bundles made possible by TCP/IP technology are a source of revenue per user that I discussed earlier.

1LISTNUM 1 \l 18899            The implication of these developments is that if competition in the provision of telecommunications services is to thrive in Canada, the access that competitors obtain to incumbent carrier network functionalities not practically obtainable elsewhere must be sufficient to permit the competitors to offer their own differentiated residential retail service bundles.

1LISTNUM 1 \l 18900            With that background in mind let me now turn to the various questions posed by the Commission in this proceeding.

1LISTNUM 1 \l 18901            First, let me deal with the definition of "essential facility".

1LISTNUM 1 \l 18902            Before doing that I want to clarify that the reference to "essential facility" should really encompass the concept of essential network functionality where the functionality can manifest itself through either a facility or service.

1LISTNUM 1 \l 18903            A focus on functionality rather than the specific form of facility or service is technologically and competitively neutral and, as such, is more consistent with the policy direction.


1LISTNUM 1 \l 18904            Subject to that clarification, Cybersurf is of the view that two‑part test should determine whether a specific facility or service is essential.

1LISTNUM 1 \l 18905            First, the facility or services and input required by competitors to provide one or more downstream services and, second, one or more incumbent carriers is dominant in the supply of the facility or service.

1LISTNUM 1 \l 18906            This definition has several advantages over definitions proposed by other parties, particularly over those that include a double dominance component or that require the demonstration of significant market power in downstream markets.

1LISTNUM 1 \l 18907            In particular, the Cybersurf definition is more practical and easier to operationalize than the definitions proposed by The Bureau and the ILECs which would do nothing more than entrench and expand the dominance of ILECs in the markets for essential facilities.

1LISTNUM 1 \l 18908            I will now discuss some of the specific characteristics of the Cybersurf definition of essential facility that make it suitable for adoption by the Commission.


1LISTNUM 1 \l 18909            First, the Cybersurf definition acknowledges that if an incumbent carrier is dominant in the provision of a wholesale functionality required by competitors to provide one or more downstream service, the incumbent carrier implicitly has both the incentive and the ability to leverage that dominance in any corresponding downstream markets in the absence of mandated access to the wholesale functionality on reasonable terms and conditions.

1LISTNUM 1 \l 18910            Second, the requirement for dominance in the provision of a wholesale functionality by an incumbent carrier makes it clear that competitors cannot reasonably obtain those functionalities from other sources on economically efficient terms.

1LISTNUM 1 \l 18911            Third, the definition acknowledges that mandated access to a wholesale service may be necessary to avoid the lessening or prevention of competition in more than one downstream retail market.  For example, the absence of properly unbundled access or transport functionalities can prevent competitors from providing the various services that together comprise a residential retail service bundle.


1LISTNUM 1 \l 18912            Fourth, as confirmed during the cross‑examinations of the Bureau and Rogers' witnesses, the Cybersurf definition, unlike those that incorporate a double dominance element or a requirement for the observed exercise of market power by an incumbent carrier in downstream market, also acknowledges that competitors can use wholesale functionalities not just to provide retail services that duplicate the retail services offered by the incumbent carriers, but also to provide new, innovative and/or differentiated competitor retail service offerings that incumbent carriers may not have the incentive or ability to offer.

1LISTNUM 1 \l 18913            Fifth, this definition logically includes interconnection services, so it is not necessary to create a separate interconnection services category.

1LISTNUM 1 \l 18914            Finally, the manner in which the test proposed by Cybersurf is structured also facilitates a consideration by the Commission of whether any coordinated effects are present that can result in joint dominance by more than one incumbent carrier.

1LISTNUM 1 \l 18915            This is a very important consideration because evidence tendered in this proceeding demonstrates that such effects are present.


1LISTNUM 1 \l 18916            While it may be the case that new wireless technologies may provide a third broadband access method in the future, the fact is that today there are still a lot of wrinkles to iron out in those technologies if they are to be used to support a broadband platform.

1LISTNUM 1 \l 18917            In addition, customer acceptance of that mode of access for fixed residential use is not presently widespread by any means.  The current reality, as confirmed by the Commission's most recent monitoring report, is that all broadband access technologies, other than cable, DSL and dial‑up, account for less than 1 per cent of the Internet access technology mix.

1LISTNUM 1 \l 18918            At the present time the market for residential bundles is essentially a duopoly.  Should the Commission be concerned?  We think so.

1LISTNUM 1 \l 18919            Officers of both Rogers and Shaw have made recent pronouncements discussed in this proceeding regarding those carriers' ability to raise prices for telecommunications services, despite the presence of ILECs.

1LISTNUM 1 \l 18920            This demonstrates that the incumbent carriers enjoy a significant degree of joint market power in the provision of residential telecommunications services.  That market power enables them to maintain prices for such services and, by extension, for bundles of those services at rates that are above competitive levels.


1LISTNUM 1 \l 18921            This conclusion is reinforced by the cross‑examination of The Companies' witnesses concerning the characteristics of the markets for bundles of residential retail services relative to criteria for a coordinated effect set out in the Competition Bureau's Merger Enforcement Guidelines.

1LISTNUM 1 \l 18922            In this kind of duopolistic environment, ILECs and cable carriers are not going to willingly provide unbundled access to their network functionalities to competitors on economically efficient terms so as to facilitate the kind of vigorous retail level competition that exists in the U.K.

1LISTNUM 1 \l 18923            Accordingly, it is necessary for the Commission to step in and mandate access to such network functionalities of both types of incumbent carriers, and that is precisely what the essential facilities definition provided by Cybersurf would logically require the Commission to do.

1LISTNUM 1 \l 18924            I am now going to switch to a discussion of the pricing principles that should apply to mandated wholesale services.


1LISTNUM 1 \l 18925            First of all, let me say that Cybersurf takes no issue with the principle that incumbent carriers should be able to recover through prices charged to competitors the long‑run incremental costs associated with providing wholesale services.  Recovery of such costs is the key objective of the Phase 2 costing methodology.

1LISTNUM 1 \l 18926            What should be included in such costs has been examined in the Phase 2 proceeding recently conducted by the Commission and is beyond the scope of this proceeding, so I will not discuss that any further in this forum.

1LISTNUM 1 \l 18927            The remaining issue for this proceeding then becomes what mark‑up or mark‑ups should be applied on Phase 2 costs for the purposes of determining the prices of essential services and any other services that the Commission mandates incumbent carriers to provide?

1LISTNUM 1 \l 18928            As noted in the Cybersurf cross‑examination of the TELUS business panel, the Commission has already determined that a 50 per cent mark‑up on Phase 2 costs makes a reasonable contribution to the recovery of ILEC's fixed common costs and imbedded cost differential.  This mark‑up also takes into account the ILEC's obligation to serve.


1LISTNUM 1 \l 18929            Based on a review of TELUS 2006 annual financial statements and MDNA, it does not appear that any regulatory determinations have caused a material stranded investment problem for TELUS.  The same is most likely true in the case of the other ILECs.

1LISTNUM 1 \l 18930            In light of these factors, Cybersurf urges the Commission to retain the 15 per cent mark‑up in the case of essential services and any other services that the Commission determines should be provided on a mandated basis by the incumbent carriers following this proceeding.

1LISTNUM 1 \l 18931            TELUS and others have argued that mark‑ups on Phase 2 costs should be greater in order to create an incentive for competitors to build their own facilities.  However, in an IP world, it is important for the Commission to acknowledge that the transmission facilities used to provide end‑user access to consumers are largely pipes over which bits travel.  Most of the innovation that is taking place in an IP environment is occurring in other facilities, i.e. DSLAMS, CMTS server equipment, other electronics and software, that when connected to access means, such as spectrum, copper coaxial fibre facilities, enable ILEC and cable company networks to support broadband platforms suitable for delivering IP‑based applications and to support the applications themselves.


1LISTNUM 1 \l 18932            The policy direction requires the Commission to increase incentives for innovation and investment in and construction of competing network facilities of all kinds on an industry‑wide basis.  This does not mean that the Commission should price ILEC wholesale services at excessively high rates in the hope that this will promote a roll‑out of a Verizon‑like strategy that encourages ILECs to deploy fibre to the home.

1LISTNUM 1 \l 18933            It is far from clear whether aggressive fibre deployment in access networks will ultimately be economically efficient in light of developments in wireless access technology.  There is a lot of uncertainty regarding whether Verizon's gamble will pay off.  Even if it does, it's far from clear that such a strategy would work in Canada, which has lower population densities than the U.S.  It is also highly unlikely that residential customers in Canada will be connected to a third ubiquitous telecommunications network via a wireline technology in the foreseeable future.

1LISTNUM 1 \l 18934            What is certain is that excessive prices for essential services will dampen investment by competitors in new facilities and will lessen or prevent competition at the retail level.


1LISTNUM 1 \l 18935            In any event, the premise that reasonably priced access is a disincentive to the construction of facilities is largely a myth.  If access is priced efficiently rather than excessively, each incumbent and competitor will have an incentive to build out its network wherever feasible in order to control it and the services provided over it.

1LISTNUM 1 \l 18936            High mark‑ups on Phase 2 costs that translate into excessively high prices for incumbent carrier services will not stimulate increased innovation and investment in broadband platforms and the applications that are dependent on such platforms.  What will stimulate such innovation and investment is pricing incumbent carrier essential facilities at levels that make it feasible for competitors to rely on the facilities and combine them with their own, thereby enabling them to offer the broad and ever‑expanding array of IP‑enabled services and service bundles that can only be delivered over broadband platforms.

1LISTNUM 1 \l 18937            For this reason, Cybersurf also urges the Commission to reject the TELUS request for the Commission to increase mark‑ups in order to provide ILECs with an opportunity to recover a higher percentage of their imbedded cost differential.


1LISTNUM 1 \l 18938            As noted during the cross‑examination of the TELUS business panel, all such a policy would achieve is to deter investment in facilities by competitors.

1LISTNUM 1 \l 18939            Dr. Aron made it clear in this proceeding that the recovery of a portion of a carrier's imbedded cost differential is an issue that is separate from the efficient pricing of wholesale services.  In fact, higher mark‑ups in order to provide for the recovery of a higher proportion of the imbedded cost differential would simply amount to a barrier to efficient investment.

1LISTNUM 1 \l 18940            I will now turn to a brief discussion of Cybersurf's proposal for a transitional regime.

1LISTNUM 1 \l 18941            Cybersurf is of the view that the supply of wholesale services found to be non essential should continue to be mandated for a period of five years on their existing terms and conditions, including rates, subject only to any pricing changes that may be necessary as a result of the recently held Phase 2 review conducted by the Commission.

1LISTNUM 1 \l 18942            In addition, Cybersurf makes the following three recommendations.


1LISTNUM 1 \l 18943            No new retail services should be offered by an incumbent carrier unless all underlying essential network functionalities have been unbundled and a competitor services tariff filing for such underlying components has been approved.

1LISTNUM 1 \l 18944            No new retail services should be offered by an incumbent carrier unless QoS standards based on service level objectives have been approved.

1LISTNUM 1 \l 18945            And three, the Commission should establish a streamlined tariff process for competitor services similar to that established for ILEC retail services.

1LISTNUM 1 \l 18946            With regard to the establishment of QoS or CQoS standards, Cybersurf notes that a number of existing wholesale services do not have such standards.  Accordingly, Cybersurf recommends that the Commission establish a process as quickly as possible to set such standards where they are presently unavailable.

1LISTNUM 1 \l 18947            CQoS standards for new services would be established when tariffs for those services are approved.  Any new CQoS standards and indicators would then become part of the CQoS regime and would be related to the rate rebate plan.  The granting or continuation of retail forbearance would also depend on consistent acceptable CQoS performance.


1LISTNUM 1 \l 18948            Cybersurf considers it essential to competition for the regime established by the Commission to be ex ante in nature.  Given the market power that incumbent carriers enjoy with respect to the provision of wholesale services, an ex post regime would simply ensure that competitors either have to pay excessive rates in order to enter the market and/or experience inordinate delays in obtaining access to the wholesale services that they need.

1LISTNUM 1 \l 18949            This concern is more than just theoretical.  The ISP industry has been fighting for more than five years, and its members have filed numerous Part 7 applications in order to obtain proper access to DSL and TPIA services on reasonable terms and conditions, including rates.

1LISTNUM 1 \l 18950            Even if incumbent carriers voluntarily introduce new wholesale offerings, these will more likely than not be based on simple resale or bundled service elements rather than providing competitors access to the unbunbled network elements that will enable competitors to compete more vigorously with the incumbent carriers at the retail level by differentiating their services to a significant degree.

1LISTNUM 1 \l 18951            I now want to address the issue of classification of services in accordance with CRTC Exhibit 4.


1LISTNUM 1 \l 18952            In that exhibit the Commission has suggested six possible categories for classifying the tariffed wholesale services of the incumbent carriers.  Since Cybersurf serves the residential retail market and is not a CLEC at this time, it does not use many of the services listed in that exhibit.

1LISTNUM 1 \l 18953            As a result, the classification that it suggests for many of those services is based on a limited knowledge of both the services themselves and the extent of their availability, if any, from sources other than the incumbent carriers in the marketplace.

1LISTNUM 1 \l 18954            It may well be that the evidence of other competitors who have more intimate knowledge of those matters is to be preferred in those cases, however, Cybersurf does have considerable experience with the wholesale services that it requires in order to provide residential broadband services and applications supported by broadband platforms.  In particular, Cybersurf has relied heavily on GAS/HSA‑type ADSL and WAN services of the ILECs and the TPIA services of the cable company.


1LISTNUM 1 \l 18955            In order for competitors such as Cybersurf to be able to differentiate their service offerings from those of the incumbent carriers, as is occurring in the EU, competitors need efficient and economic access to a number of incumbent carrier functionalities.  That kind of access is not yet available economically, or in the case of the cable carriers at all, under the existing tariff structures of the incumbent carriers, which suffer from significant shortcomings in this regard.

1LISTNUM 1 \l 18956            In the case of ILECs, the functionalities required by competitors include local loops, equivalent transmission paths for integrated carrier loop situations where loops are provisioned using fibre, loop characteristics known to the ILEC entrants, conduit space, riser space, floor space for collocation, collocation links and connecting links.

1LISTNUM 1 \l 18957            In the case of the cable companies, the functionalities are equivalent transmission paths, in other words a 6‑megahertz channel, to the transmission path used by cable carriers to provide their own services and knowledge concerning network performance.


1LISTNUM 1 \l 18958            Cybersurf is therefore proposing that the Commission classify existing ADSL and TPIA services as conditional essential and that the phasing out of those services should be conditional on the mandated availability of the underlying ILEC and cable company functionalities just described and any other essential facilities required by competitors to provide their own broadband platforms and support their own differentiated services, applications and bundles on those platforms.

1LISTNUM 1 \l 18959            These functionalities should be provided on reasonable terms and conditions, including rates that include a mark up no greater than 15 percent on Phase II costs.  Cybersurf therefore proposes that the Commission initiate a follow‑up proceeding as part of its determination in this proceeding to address those issues. Until those issues are resolved with finality, existing GAS/HSA‑type ADSL and TPIA services would continue to be treated as if they are essential in all other respects.

1LISTNUM 1 \l 18960            The justification for this follow‑up proceeding is founded in the evidence from the EU and UK that makes it clear that, where collocation unbundled essential ILEC network functionalities are available on reasonable terms and conditions, what the Europeans call LLU, competitors rely much less on GAS/HSA‑type DSL services, which they call bitstream, or a simple resale.


1LISTNUM 1 \l 18961            In such cases, the unbundling regimes confer numerous competitive benefits, such as, one, competitors have more control over the value chain and access to economies of scale not available when using other wholesale tariffs, which leads to lower prices for consumers; two, competitors can offer differentiated services and can compete on service attributes, such as speed and QoS; three, competitors can offer various service bundles, including not only traditional telephone and hi‑speed Internet services, but also new applications such as IPTV; four, the ability of competitors to offer such bundles leads to increased revenues per user for carriers as well as discounts and single points of billing and contact for consumers; and five, industry‑wide investment in facilities used to provide new IP‑based services applications and bundle increases.

1LISTNUM 1 \l 18962            This is the vision that Cybersurf has for wholesale access in retail competition in Canada.

1LISTNUM 1 \l 18963            Thank you for your attention.

1LISTNUM 1 \l 18964            THE CHAIRPERSON:  Thank you, Mr. Tacit.

1LISTNUM 1 \l 18965            On page 12, you list three points.  Surely points number one and two are not part of these proceedings, are they?

1LISTNUM 1 \l 18966            MR. TACIT:  Well, that would be part of the same follow‑up proceeding ‑‑

1LISTNUM 1 \l 18967            THE CHAIRPERSON:  Oh, the follow‑up.  Yes, right.

1LISTNUM 1 \l 18968            MR. TACIT:  ‑‑ that we are suggesting be held.


1LISTNUM 1 \l 18969            THE CHAIRPERSON:  And I guess you are, in effect, if I understand it correctly, you are saying you will throw this into conditional essential right now, then hold a follow‑up hearing and go much more granular and much more detailed, and once you have made that decision, then you can take it that the condition has been met.  And, presumably, then, some services will be considered non‑essential and others will be essential?

1LISTNUM 1 \l 18970            MR. TACIT:  Absolutely, that's exactly what we are saying.  We are saying that if the underlying functionalities are captured as essential services, there's no need for a GAS‑like or simple resale or TPIA, in their present form, to survive.  But in the absence of workable underlying services, then these services remain essential for the time being.

1LISTNUM 1 \l 18971            THE CHAIRPERSON:  While you were speaking, I went on the Cybersurf website to see what you offer and I see you actually offer your service in Ontario and Quebec, that anywhere in Ontario I can be a Cybersurf customer ‑‑

1LISTNUM 1 \l 18972            MR. TACIT:  Mr. Mercia can tell you more about the services.

1LISTNUM 1 \l 18973            THE CHAIRPERSON:  ‑‑ or only in those places where ADSL is available?


1LISTNUM 1 \l 18974            MR. MERCIA:  No, we offer over Rogers, as well, in Toronto and Ottawa.

1LISTNUM 1 \l 18975            THE CHAIRPERSON:  Yes, let's say, a cottage with a telephone, where you right now can't get ADSL from Bell, could one get Cybersurf from you?

1LISTNUM 1 \l 18976            MR. MERCIA:  Not without ADSL, no.

1LISTNUM 1 \l 18977            THE CHAIRPERSON:  No, I see.

1LISTNUM 1 \l 18978            Okay, any questions, colleagues?

1LISTNUM 1 \l 18979            Okay, thank you very much, and let's take a 10‑minute break.

‑‑‑ Upon recessing at 1430 / Suspension à 1430

‑‑‑ Upon resuming at 1436 / Reprise à 1436

1LISTNUM 1 \l 18980            THE CHAIRPERSON:  Okay, who do we have now, Madam Secretary?

1LISTNUM 1 \l 18981            THE SECRETARY:  We have Counsel Lockie on behalf of Yak Communications.

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 18982            MR. LOCKIE:  Good day, Mr. Chairman, and good day to you, commissioners.

1LISTNUM 1 \l 18983            I want to apologize just from the outset if I am not as electrifying as I think we would all like me to be, I seem to have come down with something, but I will try and muddle through. And I will also try to make up for it by keeping this to about 10 minutes.


1LISTNUM 1 \l 18984            THE CHAIRPERSON:  Okay.

1LISTNUM 1 \l 18985            MR. LOCKIE:  It is a very narrow focus for why Yak is at this proceeding and I really only want to stress three main points.

1LISTNUM 1 \l 18986            The first point will be whatever suggestions have been made to the contrary it is simple fact that no feasible billing and collection alternatives to carrier B&C services for dial‑around exist, none.

1LISTNUM 1 \l 18987            The second point is that without mandated billing and collection services at commercially reasonable cost‑based rates dial‑around will cease to exist.  We will not, just to clarify that second point, be able to obtain B&C services from carriers on a negotiated basis at rates that make dial‑around a legitimate business.

1LISTNUM 1 \l 18988            The final point I will make is that while we strongly believe that B&C services are properly described as essential services on any reasonable analysis and on any reasonable definition, we won't be focusing on that today.  We do not intend to get involved in the definitional discussion and this Commission certainly has plenty of input on that point already.


1LISTNUM 1 \l 18989            Even if the Commission deems that B&C services do not meet some narrow definition of essential services, dial‑around is independently worthy of the Commission's protection and mandated access to such services at commercially reasonable cost‑based rates should be then result however we get there.  But we do want to be clear about a related point, which is that continuing to mandate B&C services is in no way a violation of any policy directive.  Not only that, it is actually in furtherance of other objectives of the Commission as set forth in the Telecom Act.

1LISTNUM 1 \l 18990            Now, on the first point, as this Commission is undoubtedly already aware, back in 1998 the CRTC determined that equal access includes more than just 1+ dialling capabilities, it extends to ancillary services such as B&C services in support of dial‑around.  Consequently, carrier B&C services have been available to companies like Yak, which has created the innovative and much lower cost alternative to carrier subscriber rates that is dial‑around.

1LISTNUM 1 \l 18991            To explain quickly what it is that we do exactly, the consumer simply makes a per‑call decision when placing a long‑distance call to tap in a seven‑digit code, such as 10‑10‑YAK, and then dials the desired number.  The call is then routed to Yak's switch via the subscriber's LEC switch.


1LISTNUM 1 \l 18992            For international calls, where the savings that we provide to consumers are the most dramatic, we select from a range of interconnected service providers that supply us with international call termination services.  We route the call to the best choice available to us and we are responsible for paying this provider for terminating the call as well as for the cost of leasing all of the interconnecting facilities to both the LEC and the international service provider.

1LISTNUM 1 \l 18993            Once the call is complete, Yak processes the call record and rates the call based on time and destination.  We then send these rated call records to the caller's LEC for billing and collection on the caller's regular phone bill.  Now, you can see that the lion's share of what we do goes on behind the scenes.


1LISTNUM 1 \l 18994            But from the caller's perspective: they don't have to change providers; they don't have to provide credit card information, assuming they have a credit card, which many don't; they don't have to register with anyone; they don't have to get another bill; they don't have to buy in five, 10, 20‑minute increments; they don't have to pay upfront fees; they don't have to do anything at all.  They just punch in a code, they make a phone call and the charge for that call shows up on their phone bill at significantly lower rates.  That is the story.

1LISTNUM 1 \l 18995            And they are faced with the exact same choice the next time they decide to make a long‑distance call.  It really is the ultimate in consumer choice and millions of Canadians have made it in the last couple of years alone.

1LISTNUM 1 \l 18996            Now, B&C services from carriers are an absolutely necessary part of this story.  Without these services being mandated there simply is no dial‑around.  Some of the parties to this proceeding suggested that there are alternatives to B&C services and that the Commission should therefore no longer mandate them.

1LISTNUM 1 \l 18997            This is not supported by the evidence in this proceeding in our respectful submission.  And I would like to take a moment to look at one such suggested alternative that seems to come up fairly often and that is credit cards.


1LISTNUM 1 \l 18998            The point I am making here is not going to be a cost point.  Certainly, the cost is significant to bill on a credit card.  But even if credit card companies provided the service to us at absolutely no charge, as a public service, it would still kill dial‑around.

1LISTNUM 1 \l 18999            The first point is that many Canadians simply don't have a credit card.  And I will just remind the Commission at this point that the survey that we submitted into evidence showed that dial‑around users with income under $25,000 a year use dial‑around for 92 per cent of their long‑distance calls.

1LISTNUM 1 \l 19000            For those of us who do have a credit card, registering it with a provider for dial‑around is often of no interest.  We have tried and it bombed.  And if credit card information is collected from callers on a call‑by‑call basis, then the service is clunky, inconvenient and time consuming and is no different really than conventional operator‑assistant calling.  Not to mention the price for such assistance would make calls very expensive relative to normal long‑distance calls.

1LISTNUM 1 \l 19001            In addition, and I think this is a crucial point, credit card callers do not and cannot receive the kinds of call detail they have come to expect from a long‑distance call, including the call date, call duration, destination number and the rate.


1LISTNUM 1 \l 19002            I think the point more generally is that Globalive, and that is the parent company for whom I am also the Chief Legal Officer, and Yak itself are lean, young, aggressive competitors and we are constantly looking for alternatives and opportunities.  If there was one, we would use it, there isn't.

1LISTNUM 1 \l 19003            On the second point, what it is that we offer and how dial‑around exists as a business is a per‑call, no hassle, no sneaky fees, no commitment and a much cheaper alternative to carrier subscription rates, that is it.

1LISTNUM 1 \l 19004            Even in today's environment where B&C services for dial around are mandated, we encounter all sorts of obstacles.

1LISTNUM 1 \l 19005            As the Commission is aware, we have a couple of Part VIIs in front of the Commission in this regard right now.

1LISTNUM 1 \l 19006            First, we are seeking a new cost study.  One has not been done in well over a decade, and even though we are paying 10 or 25 cents a line on a bill, a major carrier's own submission in another context points to an actual cost of well under a 10th of a cent per line.


1LISTNUM 1 \l 19007            Using these, in our view, artificially inflated rates, Yak alone has pumped over $30 million into the carriers for the last few years for B&C services and these are rates that are so high that we can already not cost‑effectively bill over a third of the calls made using our service.  We provide those calls for free.

1LISTNUM 1 \l 19008            In our other Part VII, we are seeking to have the Commission force Shaw to comply with its regulatory responsibilities for B&C.

1LISTNUM 1 \l 19009            If the carriers did not have to provide B&C service, it is very clear that they simply would not or at least not on a cost‑effective basis that would allow us to provide this popular and vigorous competitive alternative to those very same carriers' long distance rates.

1LISTNUM 1 \l 19010            Much has been said by certain ILECs in this proceeding about prepaid calling cards being a substitute for dial around and therefore for B&C service.  So I want to address that notion here.

1LISTNUM 1 \l 19011            It is simply not the case that this ‑‑ and this suggestion flies in the face of our own business experience at Yak and also the evidence led in this proceeding, including the survey that we provided to the Commission.

1LISTNUM 1 \l 19012            First, a decision must be made to go out and buy a prepaid card.

1LISTNUM 1 \l 19013            Second, prepaid cards must be charged up sufficiently before a call is made.


1LISTNUM 1 \l 19014            Third, the prepaid card itself must be readily available when a caller wants to make a call.  They can be and actually are lost.

1LISTNUM 1 \l 19015            Fourth, as with credit cards, prepaid callers do not get call and charge detail records in a bill.

1LISTNUM 1 \l 19016            Fifth, prepaid cards expire.  This is called breakage and results in a much higher effective per call cost for many consumers.

1LISTNUM 1 \l 19017            And perhaps most significantly, the purchase of a prepaid card represents an advance commitment to purchase a bundle of long distance calling minutes where dial around involves no such commitment.  You simply decide on a call‑by‑call basis.

1LISTNUM 1 \l 19018            As we have noted previously in our evidence, and not surprisingly, given the reality I have just described, dial‑around users have indicated a very strong preference for dial around compared to alternatives like prepaid cards.

1LISTNUM 1 \l 19019            Counsel to TELUS asked if this independent survey of dial‑around users was not similar to asking someone who uses a Ford or owns a Ford if they have driven a GM car lately.  This is a dis‑analogy.


1LISTNUM 1 \l 19020            We would submit that a much more apt analogy if we want to use cars would be asking a Ford driver if they had the option of simply punching a code on their dash and getting much better fuel economy with no sacrifice in performance whether they prefer that to having to save on gas by buying it in advance in large volume increments that expire if you don't use it fast enough or lose the gas card.

1LISTNUM 1 \l 19021            The reality is, as we ourselves have determined and are putting into our business plan, prepaid is not a substitute for dial around.  Dial around is unique.

1LISTNUM 1 \l 19022            I would like to close out my argument today by briefly discussing why the continued mandate of B&C services by the Commission is not only not inconsistent ‑‑ that is a quadruple negative but ‑‑ is not only not inconsistent with the government's recent policy directive, it is also in furtherance of the policy objectives set forth in the Telecom Act.

1LISTNUM 1 \l 19023            Yak succeeds because it brings great international calling rates to the Canadian consumer on a route‑by‑route basis.  LECs, on the other hand, have every incentive to promote bundles that don't offer good value on international calling.


1LISTNUM 1 \l 19024            Just look at the long distance rates charged by Canada's wireless providers for some obvious examples and, indeed, the Commission's own workplan to introduce equal access to the wireless market.  The availability of dial around keeps consumer gouging for international calls by the local exchange carriers in check.

1LISTNUM 1 \l 19025            Continuing to mandate B&C services at commercially reasonable cost‑based rates will have absolutely no effect whatsoever on decreasing incentives for innovation and investment in competing telecom network facilities.  In fact, by crushing an innovative alternative like dial around, not mandating B&C services will have the opposite of the desired effect.

1LISTNUM 1 \l 19026            Put another way, the elimination of mandated B&C services will not promote the construction of a single meter of additional transmission facilities.  This is because each LEC controls the local bottleneck to every single one of their individual subscribers and must have a billing and collection service in place, in any case.


1LISTNUM 1 \l 19027            Moreover, it is precisely because the LECs control the local bottleneck to their individual subscribers that the Commission must effectively regulate to ensure long distance providers like Yak have equal access to the subscribers, including B&C services for dial around.

1LISTNUM 1 \l 19028            The continued mandate of B&C services is also fully consistent with other policy objectives of the Telecom Act.  I will simply note in this regard that the Act provides that the Commission has among its objectives affordable telecom services accessible to Canadians, not only to Canadians with credit cards who don't mind registering their credit cards with alternative long distance providers and who don't want to track call information.

1LISTNUM 1 \l 19029            A point relevant to another of the Act's stated objectives, which has an objective that policies that respond to the economic and social requirements of users of those services.

1LISTNUM 1 \l 19030            I want to thank you, Mr. Chairman and commissioners.  Despite not feeling great, it has been an honour and a pleasure to present this to you.

1LISTNUM 1 \l 19031            THE CHAIRPERSON:  Thank you.

1LISTNUM 1 \l 19032            On your second last page, you suddenly talk about wireless.  Did I miss something?

1LISTNUM 1 \l 19033            MR. LOCKIE:  I am sorry, I can't quite hear you.


1LISTNUM 1 \l 19034            THE CHAIRPERSON:  On the second last page, you talk about wireless.  I thought from your previous evidence that 10‑10‑Yak is not available on wireless.

1LISTNUM 1 \l 19035            MR. LOCKIE:  I am simply offering that as an example of what happens in a world without dial around.

1LISTNUM 1 \l 19036            THE CHAIRPERSON:  What is actually available on wireless?  Is there any way I can use Yak on a wireless?

1LISTNUM 1 \l 19037            MR. LOCKIE:  No, not Yak dial around.  We are pursuing billing and collection with Fido right now, who, as you know, registered as a CLEC and we are looking forward to that but as it stands there is no B&C requirement.

1LISTNUM 1 \l 19038            THE CHAIRPERSON:  So all I could do is sign you up as my ‑‑ can I sign you up as my long distance provider?

1LISTNUM 1 \l 19039            MR. LOCKIE:  Yes, you can.

1LISTNUM 1 \l 19040            THE CHAIRPERSON:  Okay.  With any of the wireless companies?

1LISTNUM 1 \l 19041            MR. LOCKIE:  That we have interconnections with, yes.

1LISTNUM 1 \l 19042            THE CHAIRPERSON:  That you have interconnections.  Whom do you have interconnections with?


1LISTNUM 1 \l 19043            MR. LOCKIE:  We have people that are probably better suited for answering these kinds of questions who couldn't make it today.  That is Stewart Thompson who presented here.

1LISTNUM 1 \l 19044            THE CHAIRPERSON:  No, I just ‑‑ because you mentioned wireless.  So basically, when you say 10‑10‑Yak, you are talking wireline?

1LISTNUM 1 \l 19045            MR. LOCKIE:  That is correct.

1LISTNUM 1 \l 19046            THE CHAIRPERSON:  Okay, thank you.

1LISTNUM 1 \l 19047            Commissioner del Val or Duncan?

1LISTNUM 1 \l 19048            No.

1LISTNUM 1 \l 19049            Thank you very much.

1LISTNUM 1 \l 19050            MR. LOCKIE:  Thank you.

1LISTNUM 1 \l 19051            THE CHAIRPERSON:  As usual, Mr. Denton, I think you are last.

‑‑‑ Pause

1LISTNUM 1 \l 19052            THE CHAIRPERSON:  Please go ahead.

ARGUMENT / PLAIDOIRIE

1LISTNUM 1 \l 19053            MR. DENTON:  Thank you, Mr. Chairman.

1LISTNUM 1 \l 19054            Good afternoon, Mr. Chairman and commissioners.

1LISTNUM 1 \l 19055            Seated today with me is François Ménard of Xittel.  In case we get into some really serious discussion of regulation and tariffs, he will be able to answer any question you might conceive.


1LISTNUM 1 \l 19056            Before I begin, I would like just to commend to your attention the presentations of Allstream and my colleague Mr. Tacit as containing much good sense, with which we are in full agreement.

1LISTNUM 1 \l 19057            I would like to state that our first message to the Commission is that the Coalition is seeking to present a moderate, balanced and helpful approach to what we perceive is the Commission's problem.

1LISTNUM 1 \l 19058            We believe that the Commission has been asked to limit somewhat the ambit of essential services and our proposals for what should be retained in what baskets represent our acknowledgment that the CRTC is under pressure to solve this problem.

1LISTNUM 1 \l 19059            We have presented today in response to your Appendix IV our proposals for which services should be in which baskets, under which time duration, and we will let them speak for themselves.

1LISTNUM 1 \l 19060            We would now like to turn to the setting of this proceeding.

1LISTNUM 1 \l 19061            We find it essentially significant that the order in council which started it has been issued at all.  We may infer from this that the government believed that the Commission had strayed too far in allowing third parties access to essential services.


1LISTNUM 1 \l 19062            The order in council was carefully redrafted following a flurry of comments from the competitive industry and in its final form now provides a balanced approach to regulation, contemplating economic and non‑economic objectives beyond pure competition law.

1LISTNUM 1 \l 19063            The order contemplates that both interconnection arrangements and access regimes should be competitively and technologically neutral.

1LISTNUM 1 \l 19064            The Commission was told it had to review the amount and nature of mandated access to services for third parties with a view to provide "increased incentives for innovation, investment in and construction of competing telecommunications network facilities."

1LISTNUM 1 \l 19065            When the Minister of Industry, Mr. Bernier, was asked to defend the Policy Directive before the House Committee of Science, Technology and Industry, he said that the policy had been rewritten so as not to cut off access to any wholesale services.

1LISTNUM 1 \l 19066            This is what he said and we are quoting from the transcript of the Parliamentary Committee:


"Following 60 days of consultation and the tabling before Parliament for a period of 40 days of the Policy Directive we issued and which has been in effect since December, we were able to make certain changes to the CRTC Policy Direction in order to ensure that suppliers of broadband access are still able to access the networks of former monopoly undertakings.  Following consultations, the Policy Direction issued to the CRTC was amended somewhat.  I will read you part of what we amended in order to ensure that suppliers of wholesale broadband access will always have access to former monopolies' core networks.  We amended the Policy as follows..." (As read)

1LISTNUM 1 \l 19067            And then he reads in part:


"...the extent to which access to wholesale services that are not essential should be phased out.  We have asked the CRTC to look at this in their usual very conscientious and professional way." (As read)

1LISTNUM 1 \l 19068            Now clearly, the Minister indicated that he did not believe that all services deemed non‑essential should be phased out.  Rather, he left the Commission with discretion in this matter, and what the Minister has left open to the Commission to decide, the Bureau of Competition Policy and the large carriers cannot take away.

1LISTNUM 1 \l 19069            The Coalition encourages the Commission to see the room for manoeuvre which the directive left it, which enable it to reach solutions that balance a number of competing considerations, of which competition policy is a part and not the whole.

1LISTNUM 1 \l 19070            The Coalition has taken the government's proposal seriously and has proposed that temporary monopolies be granted to incumbents making substantial investments so that they would be encouraged to capture the full range of economic benefits of their investments before having to share any of them.


1LISTNUM 1 \l 19071            Temporary monopolies are supported by the economic evidence submitted by the ISPs.  We have proposed that they be temporary as the appropriate measure to counterbalance significant market power of the incumbents.

1LISTNUM 1 \l 19072            On October 3, 2007 the Commission's letter reorganized the previously proposed regulatory framework for wholesale services which it had presented to the parties on July 19, 2007.

1LISTNUM 1 \l 19073            In the reorganized framework, the Commission changed Item 4 of its original proposal.  Item 4 of the original proposal said that the services in this category were to be subject to phase‑out and annual price increases.

1LISTNUM 1 \l 19074            In its October 3rd proposal, the Commission added a new category called "conditional mandated non‑essential" which does not require annual price increases nor is it subject to phase‑out.

1LISTNUM 1 \l 19075            The Coalition considers that this new category is the proper category for current wholesale services such as General Tariff items 5410 and 5420 of Bell Canada, as well as General Tariff item 226 for TELUS for the following reasons.


1LISTNUM 1 \l 19076            In our cross‑examinations we have established that the ILECs have been providing wholesale services to ISPs at market rates.  The offerings of The Companies or their unregulated affiliates were arrived at by negotiation with the industry, and when The Companies chose to fold these unregulated affiliates back into The Companies they also chose to file the results of these negotiated deals as tariffs.

1LISTNUM 1 \l 19077            We have also established that wholesale DSL services have been designed in such a manner as to prevent ISPs from self‑supplying any facility.  These attractive offerings have always included backhaul to the central office, the CO, which was offered for free.  Inevitably ISPs did not build or self‑supply any facilities which they could use to compete with the ILECs.

1LISTNUM 1 \l 19078            TELUS also informed us that it accepted to file General Tariff 226 as a result of a telephone call from the Commission staff recommending it use the same structure that Bell Canada had negotiated with the rest of the industry.  TELUS was not ordered to do so by any legal instrument available to the Commission.

1LISTNUM 1 \l 19079            The price squeeze.  I want to address the fact of the continuing price squeeze on ISPs.

1LISTNUM 1 \l 19080            My clients filed a Part VII application detailing the extent to which they are victims of a price squeeze between wholesale and retail offerings of the ILECs.


1LISTNUM 1 \l 19081            In response, the Commission has told us that it would first go through the present proceeding to determine which portion of the DSL infrastructure of the ILECs is essential.

1LISTNUM 1 \l 19082            The Commission has, however, committed itself to determine which portion of the DSL infrastructure is essential in the follow‑up process to General Tariff item 5400 and General Tariff item 214 of TCI.  Neither of these tariffs has been determined on a final basis by the Commission, nor has the Commission pronounced itself on their essentiality despite these tariff notices being over six years old.

1LISTNUM 1 \l 19083            The length of time it has taken to make rulings on these tariffs has meant that the fundamental business conditions for ISPs in Canada are now being determined in the context of this proceeding rather than a proceeding on these tariff notices.

1LISTNUM 1 \l 19084            During cross‑examination both Bell Canada and TELUS have affirmed that these services, the pure DSL without aggregation and interoffice transport, were commercially available.

1LISTNUM 1 \l 19085            However, in subsequent written replies they have established that General Tariff item 5400 from Bell Canada and Tariff 214 from TCI have never been made commercially available to ISPs.


1LISTNUM 1 \l 19086            TELUS corrected its oral testimony to the effect that it had 12 customers of the pure access tariff, when in fact 12 customers subscribe to the services with interoffice transport and aggregation.

1LISTNUM 1 \l 19087            The result of these tariffs which supply derogation and interoffice transport were in effect poisonous in the sense that ISPs relinquished the use of services which could have been found essential some years ago and began to rely on services which were subject to margin squeeze.  They became dependent, which we may infer was the goal of the incumbents.

1LISTNUM 1 \l 19088            It is appropriate for the Commission to assign currently available aggregated DSL wholesale services to the newest Category 4 mandated non‑essential for the following reasons.

1LISTNUM 1 \l 19089            The wholesale services have been negotiated by the industry.  They were fully compensatory, being free of any limitation of profit.  And they have never been mandated by the Commission in their current form as a means for the ILECs to comply with the retail internet service forbearance order.


1LISTNUM 1 \l 19090            I remind you that the retail internet service forbearance is conditional upon underlying high‑speed access infrastructures being made available at tariffed rates.

1LISTNUM 1 \l 19091            The tariffs with which we are concerned here went beyond what the Commission had ordered insofar as they offered aggregation and interoffice transport.  The other pure DSL access tariffs which were supposedly in place were never really available.  This has been confirmed by both Bell and TELUS in this proceeding.

1LISTNUM 1 \l 19092            This state of affairs has occurred with the Commission's approval or benign indifference.

1LISTNUM 1 \l 19093            Other examples abound.  The Commission never mandated province‑wide ethernet transport services, yet Bell provides this service under tariff.

1LISTNUM 1 \l 19094            As another example, Vidéotron has only five points of interconnection for its TPIA tariff and provides services to at least one more point of interconnection, that is Canix, which is not even disclosed in its tariff, while Cogeco has 17 points of interconnection in Québec alone.

1LISTNUM 1 \l 19095            The result of these long‑standing commercial behaviours of the largest incumbents is to preclude ISPs from making investments and self‑supplying a proportion of their required facilities.


1LISTNUM 1 \l 19096            The Coalition declares today that we are interested and capable of combining the portion of the access facilities of the incumbents which are deemed essential with our own self‑supplied facilities.  The resulting self‑supply of backhaul facilities, coupled with access at essential rates, will improve our margins.  The prospect of improved margins is all that is necessary to justify our investments in first mile access facilities.

‑‑‑ Background noise / Bruit de fond

1LISTNUM 1 \l 19097            MR. DENTON:  It's the PMO.

‑‑‑ Laughter / Rires

1LISTNUM 1 \l 19098            THE CHAIRPERSON:  Off microphone.

1LISTNUM 1 \l 19099            MR. DENTON:  Is it really?  No, it can't be.

1LISTNUM 1 \l 19100            As regards broadband and the evolution of the industry, the Coalition would make the following points.


1LISTNUM 1 \l 19101            Cable modem wholesale services are immature and lack the functionality required to be commercially deployable.  The cable offering:  one, provides no quality of service; two, no control over the assignment of IP addresses, which is essential for identifying customer; offers unpredictable bandwidth; and fails to provide sufficient bandwidth for Voice over IP.

1LISTNUM 1 \l 19102            In addition, because it took the cable industry so long to develop the proprietary DOCSIS standard these services were rolled out five years after the Commission mandated their availability.

1LISTNUM 1 \l 19103            For the reasons stated above, telephone company DSL wholesale services are the only ones that have been commercially deployed by ISPs.

1LISTNUM 1 \l 19104            Several measures and decisions have reduced the market share of non‑incumbent ISPs.  The lack of availability of useful cable services, the Commission's decision to consider slow‑speed access services as substitutes for high‑speed access services, in complete defiance of Moore's Law, and the fact that services available at retail are not available at wholesale, such as ADSL and cable lite, have had their predictable effects.

1LISTNUM 1 \l 19105            Measured in the Commission's statistical reports ISP market shares are declining and the rate of decline is increasing.

1LISTNUM 1 \l 19106            The point of the game, the whole set of investments which parties are making is to get video capable broadband to the consumer.  ILECs are moving out of their central offices towards remotes in order to increase speeds over the remaining copper loop.


1LISTNUM 1 \l 19107            The ability to lease unbundled roots served from central offices is now a legacy solution, essentially obsolescent.  Incumbents have no intention of making the unbundling of sub‑loops commercially available.

1LISTNUM 1 \l 19108            Consequently, the definition of services that should be deemed essential or otherwise made available for lease must adapt to the same tendencies that are found in the rest of the computer communications industry.  If you wish to have competition based on leased facilities in these markets at all, the relevant services which must be made available include next‑generation DSL access services.

1LISTNUM 1 \l 19109            In short, we are asking the Commission to bear in mind the net direction of the computer communications industry when it decides the fate of the ISPs.

1LISTNUM 1 \l 19110            Large amounts of new spectrum will become commercially available in Canada in September of 2011 by freeing spectrum now used for analog television.  This will allow my clients to combine their newly self‑supplied backhaul facilities with the newly available spectrum to assemble a sustainable competitive offering from a fully self‑supplied network, or largely self‑supplied network.


1LISTNUM 1 \l 19111            It is our contention that the incumbents are fully aware of this possibility and wish to preempt it by the actions which have been described in this proceeding and which we have brought to your attention.

1LISTNUM 1 \l 19112            The relationship of essential facilities to investments.

1LISTNUM 1 \l 19113            In this proceeding the Bureau of Competition Policy has maintained that any finding of a essentiality for ILEC unbundled DSL access will systematically result in ILECs reducing their investments.  However, during cross‑examination TELUS told us that its investments in its home territories were being driven solely by the need to increase the bandwidth in its DSL networks to carry high‑definition internet protocol television so as to be able to compete with Shaw and Bell ExpressVu.

1LISTNUM 1 \l 19114            TELUS also observed that the Commission does not have the powers under the Broadcasting Act to force the unbundling of bandwidth used for carrying broadcasting signals on the TELUS next‑generation DSL networks such that it could be offered under rules and processes established under the Telecommunications Act.


1LISTNUM 1 \l 19115            Now, here we come to some fundamental considerations.  These concern what may or may not be done under the Broadcasting Act versus what may or may not be done under the Telecommunications Act.

1LISTNUM 1 \l 19116            We know that all new investments are intended to allow new bandwidth so as to increase video throughput.  We spoke before of the large narrative that the incumbents are asking you to accept.  Unburden us from obligations to share bandwidth and we shall make the investments that are needed for a broadband‑capable network.

1LISTNUM 1 \l 19117            We have shown, and they have admitted, that their investments in bandwidth are driven by competition now to which mandated services are irrelevant.

1LISTNUM 1 \l 19118            But as the current legal framework divides the world of communications, the services which would be carried over these improved networks would be unreachable by my clients because the ILECs argue that bandwidth used for video is not subject to the Telecommunications Act and therefore to Commission rulings on mandated access.

1LISTNUM 1 \l 19119            We don't necessarily accept these propositions, by the way.


1LISTNUM 1 \l 19120            If the future of competition is in triple play, which is to say television, Internet and telephone, then ISPs will also have to build fatter last mile access to customers.  This will take more spectrum.  None is available today.

1LISTNUM 1 \l 19121            Here we face the possibility that spectrum usage can and should respond to market forces.  If the customer wants higher bandwidth for Internet purposes, he should be able to get it.  This seems like a reasonable proposition.

1LISTNUM 1 \l 19122            Accordingly, ISPs should be able to offer their customers the bandwidth they require.

1LISTNUM 1 \l 19123            It is therefore imperative that current wholesale services remain protected by the Commission until the Commission is able to deploy the necessary resources and time to perform the required market analysis, which would allow it to determine essentiality for every relevant product by geographic market.  This would see such services as province‑wide Ethernet transport, support structure services, third party Internet access to remain assigned to the fourth category described in the Commission's October 3rd proposal ‑‑ that is, mandated non essential ‑‑ until such time as essentiality is formally tested.


1LISTNUM 1 \l 19124            We commend the Commission for its proposal to use a pragmatic and declaratory approach founded on common sense to support the continuation of a minimal mandatory wholesale regime.  This regime will coexist with existing commercially negotiated wholesale services.  Both will benefit from protection from anti‑competitive behaviour under the Telecommunications Act.

1LISTNUM 1 \l 19125            Nevertheless, the proposed approach of the Commission does not help us with margin squeeze where wholesale services are mandated but essentiality has not been tested.  Accordingly, we are proposing that the Commission test for essentiality in each geographic market before declaring it not to exist.

1LISTNUM 1 \l 19126            We approve that the measurement of sub‑additivity, which was the subject of our evidence, would deliver reliable results.

1LISTNUM 1 \l 19127            This approach was proposed in our evidence yet unfortunately was not brought to your attention because the carriers and the Bureau cleverly declined to cross‑examine its author.  We recommend that the experts of the Commission read it and form their own opinions of usefulness of the concept of temporary monopolies in some services which are designed to provide incentives for incumbents to invest.


1LISTNUM 1 \l 19128            Telecommunications and competition policy objectives.  We want to address another question of importance in this proceeding.  It is our view that competition policy objectives do not exhaust the range of objectives that the Commission is required to serve.

1LISTNUM 1 \l 19129            The Telecommunications Act has not been revoked.  The full range of objectives of in section 7 remains.  This includes section 7(h), which calls for a telecommunications policy to respond to the economic and social requirements of users of telecommunications services.

1LISTNUM 1 \l 19130            The arguments of the incumbents have been that the doctrine of essential facilities must be narrowly construed as an exceptional remedy to a very narrow range of problems.  The Coalition does not seek to challenge their views of what the essential facilities doctrine consists of because it does not rest its case in pure doctrines derived exclusively from competition law.

1LISTNUM 1 \l 19131            The Coalition notes that the Commission itself has not based itself exclusively in doctrines emanating from competition law.  The Commission's buckets or baskets of services include categories such as conditional essential, conditional mandated non essential and public good.


1LISTNUM 1 \l 19132            In summary, the Coalition has presented evidence and has obtained answers from its cross‑examination of various incumbent panels which show that the incumbents have made available services to ISPs which have the effect of making it cheaper for ISPs to use certain services which contain a transport element rather than an access element only.

1LISTNUM 1 \l 19133            Most commercially available wholesale services used by ISPs, such as wide area networks access, combined with aggregated ADSL wholesale services, have been provided without compulsion of a Commission order.

1LISTNUM 1 \l 19134            These services were negotiated and do not form part of the essential services about which the incumbents are complaining.  These freely negotiated services have the natural effect of discouraging ISPs from building transport facilities.

1LISTNUM 1 \l 19135            Other answers have shown that the incumbents are in a race to provide broadband capabilities as close to the customers as is technically and economically possible, to which ISPs cannot have shared access.

1LISTNUM 1 \l 19136            The desire to provide broadband capacity to the customer has nothing to do with essential facilities.  The build‑out reflects the needs of incumbents to provide full video capabilities.


1LISTNUM 1 \l 19137            The unbundling of DSL access free from aggregation at essential rates does not have any bearing on the decisions of the ILECs to make investments in their network.  They are being made under competitive pressures emanating from other large players which have already deployed technologies capable of transporting multiple channels of high definition television.

1LISTNUM 1 \l 19138            The Coalition has made available the list of services following the Commission's format in Exhibit 4, which we believe will provide a suitable basis for the Commission to declare that it has heeded the government's policy directive, provided a set of responses which give the incumbents all the incentives they need to continue to invest and would secure for  Canadians access to the Internet on terms and at prices they seek.

1LISTNUM 1 \l 19139            We think the Commission can come out of this hearing smelling of roses if they maintain the right  balance among the objectives of the various players, including those of the ISPs.

1LISTNUM 1 \l 19140            Finally, I would like to call your attention to the famous New Yorker cartoon where a dog, typing on a computer, says to another dog on the Internet:  No one knows you're a dog.


1LISTNUM 1 \l 19141            I have another quip which I hope will be understood one day soon, which is that on the Internet no one needs a service provider.

1LISTNUM 1 \l 19142            It will take a while for this one to sink in.  The concept of a service provider is rooted in a scarcity of bandwidth, which we maintain is now the result of past policy decisions rather than, as it had been, the inherent architecture of circuit switching or of pre‑Internet forms of competition.

1LISTNUM 1 \l 19143            You are not required to believe that this view is true.  You are encouraged to consider that many people who have designed the Internet believe it to be true.

1LISTNUM 1 \l 19144            I encourage the Commission to have a view of where the computer communications industry is evolving as it makes its decisions.  This effort would have the happy effect of making the regulation adapt to the real technical possibilities inherent in the Internet, as well as to the needs and wants of Canadians.

1LISTNUM 1 \l 19145            ISPs will guarantee the maintenance of those features of the Internet which we have come to appreciate: that is, unlimited access to all sources of digital information in the world at a single monthly rate.


1LISTNUM 1 \l 19146            Mr. Chairman and Commissioners, thank you for your attention.

1LISTNUM 1 \l 19147            THE CHAIRPERSON:  Thank you, Mr. Denton.

1LISTNUM 1 \l 19148            There are a couple of things you said which I want to pick up on.

1LISTNUM 1 \l 19149            If you go to page 7, at point C, you suggest that the Commission has made a decision to consider to low speed access services as substitutes for high speed access services.

1LISTNUM 1 \l 19150            MR. DENTON:  Yes, that's what I believe they maintained; that the market is for competitive and that low speed access was equivalent to a high speed access and therefore low speed was a sufficient basis of competition for ISPs.  And therefore they did not need access to high speed.

1LISTNUM 1 \l 19151            THE CHAIRPERSON:  What decision are you referring to?  I'm sorry, I'm not familiar with this finding at all.

1LISTNUM 1 \l 19152            MR. DENTON:  99‑592.  In other words, it basically ‑‑ you know, when we go to buy a computer, high speed is absolutely what we need, and yet when it came to access to the Internet it declared that the services that the ISPs could lease, which were relatively lower speed, were in fact competitive with higher speed access.


1LISTNUM 1 \l 19153            And the results which your own Telecommunications Monitoring Reports have shown, have shown a continuous decline in the market share of ISPs, non‑incumbent ISPs, essentially because of a lack of access to higher speed or the slowness of access to higher speed facilities.

1LISTNUM 1 \l 19154            THE CHAIRPERSON:  That decision is eight years old.  You are saying it is 99.

1LISTNUM 1 \l 19155            So what is the relevance of it today?  I don't know why you are bringing this up.

1LISTNUM 1 \l 19156            MR. MÉNARD:  I will jump in.

1LISTNUM 1 \l 19157            It's François Ménard, with Xittel.

1LISTNUM 1 \l 19158            The order being referenced here is the Internet Forbearance Order, 99‑592.

1LISTNUM 1 \l 19159            Why it's relevant is because this order still requires and still defines forbearance as being based on the availability of underlying infrastructures at just and reasonable tariffed rates.

1LISTNUM 1 \l 19160            Today, unfortunately many rate schedules of the current unbundled wholesale services incorporate mark‑ups that are unseemly high and are not just and reasonable, such as, for instance, what is incorporated in DSL Light.


1LISTNUM 1 \l 19161            So for the last couple of years the ILECs and the cable companies have been using DSL Light services to basically force ISPs' customers to switch to higher speed services, in this case Light services.  So basically ISPs have not been able to keep their customers because the incumbents were throwing in the market at lower price than dial‑up faster light high speed services to which ISPs did not have access.

1LISTNUM 1 \l 19162            The Commission has never been able to constrain the mark‑ups that have been imposed on ISPs in the Light services rate schedules.

1LISTNUM 1 \l 19163            THE CHAIRPERSON:  I see.

1LISTNUM 1 \l 19164            If we go to page 9, paragraph 23, you are talking about the future of competition is in triple play.  The ISPs will also have to build fatter last mile access to customers.  This will take even more spectrum.

1LISTNUM 1 \l 19165            You are assuming that ISPs will provide that last mile through wireless.  Is that why you are talking about spectrum suddenly?

1LISTNUM 1 \l 19166            MR. MÉNARD:  Well it certainly is the case for Xittel.  As a member of the Coalition, we have over 80 wireless towers in place in many markets of Quebec.  We have several more in the pipeline.  We are aggressively pursuing bidding on spectrum in the 700 megaHertz option in the States on January 24, 2008 for projects that we have in the northern U.S.


1LISTNUM 1 \l 19167            And certainly when this option comes along in Canada, I don't know, two years from now, we will have been practising ourselves on the U.S. options and be ready to transfer some of the networks we operate today on unlicensed frequencies which do not deliver the speeds nor the service quality that we could ultimately provide if we had access to licensed spectrum.

1LISTNUM 1 \l 19168            Today, unfortunately all of the Inukshuk spectrum is no longer put back in the market.  None of it is available to do any better than what we currently do with unlicensed spectrum.  And it is unfortunate.

1LISTNUM 1 \l 19169            THE CHAIRPERSON:  And on page 10, paragraph 27, what is sub‑additivity?  I'm sorry, I have never heard that word, nor do I know what it means.

1LISTNUM 1 \l 19170            MR. DENTON:  I went through it.  It is basically ‑‑ I hate the word and if there was a way of not using it, I would.


1LISTNUM 1 \l 19171            It is basically economies of scale plus, which is to say that there is not even an increase when you add the second unit.  There is actually a decrease for combining both A and B together, so that the combination of say the second wire in a ditch dug is sort of less or equal to putting in the first wire.

1LISTNUM 1 \l 19172            If there was a way of avoiding the use of that, I could have.  But I didn't write the evidence.

1LISTNUM 1 \l 19173            It is a good little document we suggest for your consideration, which really gets to the point that we are trying to make, which is that we have listened to what we thought were the basic concerns of the government and have proposed evidence for you that we believe accepts the major premise of the incumbents that they need greater incentives to make investments and propose a series of temporary monopolies ‑‑ temporary, we emphasize ‑‑ to allow them to extract all they need out of their investments before having to share them with third parties.

1LISTNUM 1 \l 19174            THE CHAIRPERSON:  Thank you very much.

1LISTNUM 1 \l 19175            Any questions from my fellow Commissioners?

1LISTNUM 1 \l 19176            All right, thank you.

1LISTNUM 1 \l 19177            MR. DENTON:  Thank you.

1LISTNUM 1 \l 19178            THE SECRETARY:  Mr. Chairman, if you would allow me, I would like to acknowledge reception of one exhibit today that was filed.


1LISTNUM 1 \l 19179            It is the Bureau Exhibit No. 08 in response to the Commission request in CRTC Exhibit No. 4.

EXHIBIT BUREAU‑8:  Response to CRTC request in Exhibit CRTC‑4

1LISTNUM 1 \l 19180            THE SECRETARY:  I believe this concludes the proceedings.

1LISTNUM 1 \l 19181            THE CHAIRPERSON:  Thank you very much, all counsel, for the day.  You have been exceedingly disciplined and structured and we very much appreciate it.  I very much appreciate the succinctness of your submissions.

1LISTNUM 1 \l 19182            Thank you.

‑‑‑ Whereupon the hearing concluded at 1527 /

    L'audience se termine à 1527

 

 

 

 

 

 

 

 

 

 


  

 

 

                      REPORTERS

 

 

 

 

______________________          ______________________

Marc Bolduc                     Fiona Potvin

 

 

 

 

______________________          ______________________

Jean Desaulniers                Jennifer Cheslock

 

 

 

 

______________________          ______________________

Sharon Millett                  Monique Mahoney

 

 

    

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