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ARCHIVED - Public Notice CRTC 2000-65

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Public Notice CRTC 2000-65

  Ottawa, 12 May 2000
  Practices and procedures for resolving competitive and access disputes
  Increasing demands have been placed upon the Commission and its resources in recent years in resolving competitive disputes arising under both the Telecommunications Act and the Broadcasting Act. Processes that allow for the speedy resolution of such disputes are essential if the Commission is to minimize the strain on its resources and, more importantly, if it is to achieve its objective of fair and sustainable competition. Accordingly, building upon the practices that it has adapted over the years, the Commission has developed a framework (described in this notice) that provides for a variety of procedures to ensure the fair, effective and timely resolution of disputes.
  Background

1.

The Commission has generally relied on traditional processes for resolving competitive disputes that require it to make a binding determination on the merits of a given case. In recent years, an increasing demand has been placed on these processes. The advent of competition, the emergence of many more players, the use of differing technologies, a requirement for the sharing of infrastructure, and a parallel need for agreement on complex technical issues to ensure some level of interoperability, are among the factors contributing to this demand.

2.

The costs and risks associated with competitive markets increase the need for speed and certainty in decision-making and dispute resolution. The Commission expects, on the telecommunications side, that it will continue to be faced with disputes between competitors and incumbents, and that the number of disputes will increase on the broadcasting side of its mandate.

3.

Many telecommunications disputes, and some broadcasting disputes, arise over access to distribution infrastructure, or access to public and private property. Broadcasting disputes may also be expected to arise between programming undertakings and broadcasting distribution undertakings (BDUs) over access and the terms of access to distribution undertakings.
  Objectives of the dispute resolution framework – effective and efficient resolution of disputes

4.

In response to the factors identified above, the Commission has developed a dispute resolution framework that provides for a variety of alternative procedures. These procedures have the objective of enabling affected parties and the Commission to work in a more efficient and, hopefully, a swifter manner towards resolution of competitive and access disputes.
  The framework
  Management of competitive and access disputes under new framework

5.

A core team of CRTC staff will be responsible for identifying the most appropriate process for resolving any given competitive and access dispute, whether it arises under the Broadcasting Act or the Telecommunications Act. This team will meet regularly to track and manage the progress of all disputes to ensure they move towards resolution. The team will be vigilant to ensure that parties do not unduly delay or otherwise abuse the process.

6.

A staff-facilitated process will be used where it can reasonably be expected to be more effective and efficient in resolving disputes than a more traditional process would be. Disputes whose resolution would effectively establish a new policy or change an existing policy, or that involve a large number of issues or interested parties, will not generally be considered as suitable for a staff-facilitated resolution process. For disputes having such implications, traditional Commission procedures would be employed. In some of these cases, however, it might be determined that a short, staff-facilitated process would be a useful preliminary step to help define the issues that require a Commission determination.

7.

Finally, before Commission staff deals with a dispute, parties will generally be required to attempt to resolve their differences through private, third party mediation, bilateral negotiations or some other means.

8.

The appendix to this notice contains a chart that illustrates the processes available for the resolution of competitive and access disputes.
  Process options for dispute resolution – three models

9.

The following section describes the three basic routes that may be taken in working towards a dispute’s resolution. The models are broad and flexible. Each can be seen as a tool kit, whose components can be mixed and matched with others over the course of the resolution process, as may be found appropriate.
  Model 1: Staff-assisted dispute resolution

10.

The assisted dispute resolution model allows for Commission staff, generally in consultation with the parties, to choose among a variety of procedural options, whether involving mediation or some other alternative technique, for resolving competitive and access disputes. The
Commission expects that this model will be appropriate in a majority of disputes.

11.

The main objective of this model is to break impasses arising between parties in the case of disputes that do not require a Commission resolution. Commission staff can take on a role of facilitator, mediator or non-binding arbitrator, depending on the circumstances of any particular case. In appropriate circumstances, staff could also conduct a quick meeting or inquiry to allow for questioning by parties and/or staff to clarify factual or technical matters. Under this model, the process can evolve and change to suit the needs of a given case. In all cases, progress will be closely monitored to ensure that no undue delay occurs in moving towards resolution.

12.

In some instances, all that may be needed is some assistance from Commission staff over a period of a few hours or days to break an impasse. In other situations, parties may not be able to make progress in their negotiations, and may require a staff opinion or other assistance. Where a staff opinion is requested, the Commission’s objective is that, wherever possible, such an opinion would be released within 60 days of the date of receipt of the request. Generally, the more complex or technical a dispute, the more likely it is that at least some type of informal or formal oral phase (including meetings between the parties) will be required. Written submissions from the parties may not be sufficient to enable CRTC staff to prepare a comprehensive opinion. In such circumstances, the 60-day objective may have to be extended.

13.

This model could be used for disputes that relate primarily to the commercial or technical facts of a particular case, that involve the implementation of existing policy, and that do not involve a large number of interested parties. Examples of the type of dispute that might appropriately be dealt with under this model could include:
 
  • terms of carriage by a BDU of a programming service;
 
  • access by a BDU or carrier to support structures; and
 
  • allegations of an incumbent acting in an anti-competitive manner, for example, by blocking a competitor’s access to tariffed, unbundled facilities or by withholding administrative or operational co-operation in implementing the competitor’s service.

14.

As indicated earlier, a variety of alternative procedures are available to ensure that the process adopted is suitable to the needs and circumstances of a given case. The following are examples of the tools that can be mixed and matched as may best suit the circumstances of any particular case (note that the participation of parties may be either on a non-confidential basis, i.e. with prejudice, or on a confidential basis as appropriate):
 
  • staff contacts each party by telephone to clarify the facts and issues in dispute;
 
  • staff may hold a meeting (e.g. by way of conference call or face-to-face) with parties to discuss issues and/or to attempt to mediate a solution;
 
  • staff may hold informal meetings with all parties and/or ask for written submissions, with the objective of issuing a staff opinion (these meetings could allow for questioning of parties by staff, as well as questioning by other parties);
 
  • parties may also be requested in appropriate circumstances to submit their positions in writing on one or more specific issues; and
 
  • in exceptional cases involving telecommunications matters, a meeting of the parties could be conducted by an Inquiry Officer, who would subsequently prepare a report to the Commission. The Officer can be a Commissioner, staff member or other person. Parties may settle based on the report, without requiring a Commission determination. This option would be invoked only exceptionally because of the extra time and resources involved in preparing a report to the Commission for its consideration and subsequent decision.
  Model 2: Consensus-based problem-solving

15.

This model contemplates staff-facilitated meetings involving participation in a working group by a broad cross section of industry representatives and other interested parties. The working group's purpose would be to find solutions to broad problems of a technical, operational or administrative nature, and perhaps industry-wide in scope, rather than to resolve disputes arising between individual parties.This model has been used successfully by the CRTC Interconnection Steering Committee (CISC) to address issues regarding the implementation of local telephone competition.

16.

The working group would generally investigate an issue, determine the facts and propose a solution in a consensus report that would then come before the Commission for approval. Although such a process need not involve Commission approval of the reports, participants in past CISC forums of this nature have generally sought such approval to give additional status to the results of their extensive work.

17.

Typically, under this process:
 
  • working groups would be established to focus on specific tasks and work towards creating a consensus industry position as to how a technical, administrative or operational issue should be resolved;
 
  • membership in the working groups is open to all parties having a demonstrable, direct interest in the outcome;
 
  • staff would attend meetings to facilitate discussion, answer questions, and occasionally provide a staff opinion to break an impasse; and
 
  • disputes on policy matters arising in the course of the group discussions would be resolved by the Commission on the basis of a written process.
  Model 3: Expedited Commission determination

18.

This alternative procedure has, as its objective, the speedy resolution of competitive disputes. The Commission expects that this procedure would only be used as a last resort.

19.

Disputes having the four characteristics set out below would be appropriate for processing under this model:
 
  • the dispute is bilateral, or affects only a small number of parties;
 
  • the parties have been unable to resolve the dispute by alternative methods;
 
  • only matters of interpretation or application of an existing Commission decision, policy or regulation are raised (but none involving new policy); and
 
  • the dispute does not involve a multiplicity of issues.

20.

This alternative contemplates close monitoring of files to ensure that no undue delay takes place. It also requires the Commission to render decisions. The Commission thus expects that completion of each process under this alternative would normally take longer than processes that occur under Model 1 (i.e. that would involve Commission staff only). The Commission’s objective is that, wherever possible, decisions be released within 90 days of receipt of a request for a determination. The timeframe may vary depending on the number of parties involved and the complexity of the issues to be determined.

21.

In general, 30 days would be allowed for completing the record. The Commission expects that this same timeframe would apply in those cases where parties make their submissions to the Commission in the form of "final offers", as more typically occurs in the case of disputes arising under the Broadcasting Act.

22.

Written interrogatories or an oral hearing conducted by an Inquiry Officer would be used only where they are necessary to clarify the parties’ positions, to obtain details concerning studies or other such evidence filed in support of their positions, or to clarify or narrow the issues in dispute. More time would be required to complete the process if any of these additional steps are included.

23.

Similarly, where a party has requested the intervention of the Commission, but then wishes to pursue independent negotiations with the other party or parties, the clock may be stopped to permit such independent negotiations to take place.
  Conclusion

24.

In summary, the Commission strongly believes in the use of flexible, staff-assisted meetings of working groups broadly representative of the industry and other interested parties to resolve problems of a technical, operational or administrative nature. These types of meetings, as conducted by the CISC, have been successful in the past. The Commission is equally supportive of the use of staff mediation and the other dispute resolution techniques described above to resolve competitive disputes on a timely basis. It encourages parties to avail themselves of these services wherever possible.

25.

Notwithstanding the above, in circumstances where use of these alternative avenues is inappropriate, or where they fail to achieve resolution of a dispute, the Commission will not hesitate to intervene to ensure fair and sustainable competition.
  Secretary General
  This document is available in alternate format upon request and may also be viewed at the following Internet site: http://www.crtc.gc.ca.

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