ARCHIVED - Telecom Decision CRTC 2002-46

Telecom Decision CRTC 2002-46

Ottawa, 9 August 2002

AT&T Canada Corp. Part VII application re: City of Calgary

Reference: 8690-A4-04/02

In this decision, the Commission suspends the proceeding initiated by AT&T Canada Corp.'s application of 24 June 2002, filed pursuant to Part VII of the CRTC Telecommunications Rules of Procedure, naming the City of Calgary as respondent. The Commission suspends the proceeding until such time as it has reached a decision in the proceeding initiated by Terms and conditions of existing agreements for access to municipal property, Public Notice CRTC 2001-99, 13 August 2001.

The application

1.

The Commission received an application by AT&T Canada Corp. on behalf of itself and AT&T Canada Telecom Services Company (AT&T Canada), dated 24 June 2002, filed pursuant to Part VII of the CRTC Telecommunications Rules of Procedure (the Calgary Part VII). In its application, AT&T Canada named the City of Calgary (Calgary) as respondent and requested that the Commission set out the terms and conditions under which Calgary might grant AT&T Canada continuing access to public highways and municipal property within Calgary's jurisdiction for the purpose of constructing, maintaining and operating its transmission lines. Specifically, AT&T Canada asked the Commission to disallow the terms and conditions in its current access agreement with Calgary, that are inconsistent with the principles set out in Ledcor/Vancouver - Construction, operation and maintenance of transmission lines in Vancouver, Decision CRTC 2001-23, 25 January 2001 (Decision 2001-23) and replace them with terms and conditions that are in accordance with the principles set out in that decision.

Background

2.

On 28 May 2001, AT&T Canada filed a Part VII application (the Toronto Part VII) naming the City of Toronto (Toronto) as respondent and seeking an order from the Commission to substitute the terms and conditions contained within the License of the Use of City Rights of Way Agreement between AT&T Canada and Toronto with terms and conditions compatible with the terms approved in Decision 2001-23. One issue that arose in that proceeding dealt with the Commission's jurisdiction to modify the terms of an existing municipal access agreement. Following the receipt of comments on that issue from AT&T Canada and Toronto, the Commission postponed the determinations of the Toronto Part VII proceeding and issued Terms and conditions of existing agreements for access to municipal property, Public Notice CRTC 2001-99, 31 August 2001 (PN 2001-99), seeking further comments regarding the circumstances, if any, that would cause the Commission to alter the terms of an existing municipal access agreement between a carrier and a municipality. The record of the proceeding initiated by PN 2001-99 (the PN 2001-99 proceeding) closed in March 2002.

AT&T Canada position

3.

In the Calgary Part VII application, AT&T Canada detailed the terms and conditions contained within the Calgary municipal access agreement that AT&T Canada seeks to have replaced by the Commission. While AT&T Canada acknowledged that the Commission has yet to render its determination on the Toronto Part VII application or on PN 2001-99, it stated that it continues to be subject to municipal access agreements that it believes violate the principles set out by the Commission in Decision 2001-23. AT&T Canada argued that it is imperative that there be no further delay in dealing with municipal access agreements that violate the principles of Decision 2001-23. AT&T Canada proposed that the Commission develop a record in respect of the agreement with Calgary so that the Commission could dispose of those issues at the same time as it rules on the Toronto Part VII application and the PN 2001-99 proceeding.

Reply submission

4.

Calgary and the Federation of Canadian Municipalities (FCM) jointly filed a reply submission on 8 July 2002. The submission did not respond to the substantive points raised in the application, arguing that it was premature to allow the development of a record on the Calgary Part VII application prior to a decision in the PN 2001-99 proceeding addressing the Commission's jurisdiction to modify existing municipal access agreements.

5.

In support of their position, Calgary and the FCM noted that the Commission had postponed the Toronto Part VII application until a determination had been made in the PN 2001-99 proceeding. Calgary and the FCM also stated that any further process in the Calgary Part VII proceeding would place an unnecessary burden on all parties as procedural fairness will require that Calgary, AT&T Canada and other parties be given an opportunity to supplement any submissions made in this proceeding following a determination made in the PN 2001-99 proceeding. In Calgary and FCM's view, the Calgary Part VII application should, accordingly, either be rejected as premature or suspended.

Reply comment

6.

In its reply comments dated 17 July 2002, AT&T Canada stated that there is no basis on which the Calgary Part VII application could be rejected as being premature. AT&T Canada further argued that any suspension of the Calgary Part VII application would create a delay that would be contrary to the public interest in resolving disputes between competitive local exchange carriers and municipalities.

7.

AT&T Canada argued that it was bringing the Calgary Part VII application before the Commission at this time so that the issues raised in the application could be dealt with almost immediately following a decision in the PN 2001-99 proceeding. AT&T Canada argued again that time was of the essence and the administrative fees paid to Calgary are excessive.

8.

AT&T Canada disputed the Calgary and FCM assertion that parties would be required to supplement their submissions in either the Toronto or Calgary Part VII applications after the decision in PN 2001-99 is made. In its view, the development of the record prior to the issuance of the determination in PN 2001-99 proceeding would allow the Commission to deal with all the matters under dispute expeditiously.

Commission findings and determinations

9.

The Commission considers that the outcome of the PN 2001-99 proceeding could have a material impact on the outcome of the Calgary Part VII application. The Commission expects that, as a result, the parties to the Calgary Part VII application may wish to supplement, revise or otherwise change their submissions once a decision in the PN 2001-99 proceeding is issued. Accordingly, the Commission finds that it is premature to continue the proceeding initiated by the Calgary Part VII application and suspends the proceeding until such time as the Commission has reached a decision in the PN 2001-99 proceeding.

Secretary General

This document is available in alternative format upon request and may also be examined at the following internet site: www.crtc.gc.ca