ARCHIVED - Telecom Decision CRTC 2002-75

Telecom Decision CRTC 2002-75

Ottawa, 5 December 2002

TELUS Communications Inc. - Application with respect to the scope of Telecom Public Notice CRTC 2002-4

Reference: 8661-C12-10/02

In this decision the Commission responds to requests made by TELUS Communications Inc. for notice on several matters relating to Telecom Public Notice CRTC 2002-4, Competitor Digital Network Access service proceeding, 9 August 2002 and establishes revised dates in connection with this proceeding.

Introduction

1.

The Commission initiated a proceeding in Telecom Public Notice CRTC 2002-4, Competitor Digital Network Access service proceeding, 9 August 2002 (Public Notice 2002-4) to consider the final rates, terms and conditions for the Competitor Digital Network Access (CDNA) service (the CDNA proceeding). The procedure established in Public Notice 2002-4 was amended by letters dated 17 and 20 September 2002 and 8 November 2002 (Public Notice 2002-4 as amended).

2.

The procedure established in Public Notice 2002-4 as amended included the opportunity for interested parties to file comments by 13 September 2002 and for all parties to address interrogatories to other parties with respect to the comments by 11 October 2002. Interrogatories were addressed to TELUS Communications Inc. (TELUS) and other parties by the Commission on 11 October 2002. Public Notice 2002-4 as amended required that parties file their responses to interrogatories by 12 November 2002.

3.

By letter dated 1 November 2002, TELUS requested that the Commission provide notice of the scope of the CDNA proceeding and, in paragraph 48 of its letter, TELUS itemized seven matters on which it requested notice.

4.

By letter dated 6 November 2002, parties other than TELUS were provided with the opportunity to file comments on TELUS' application by 15 November 2002 and TELUS was provided with the opportunity to file comments in reply by 19 November 2002.

5.

AT&T Canada Corp. on behalf of itself and AT&T Canada Telecom Services Company, Call-Net Enterprises Inc., Aliant Telecom Inc., Bell Canada, MTS Communications Inc., Saskatchewan Telecommunications, GT Group Telecom Services Corp. (Group Telecom) and Primus Telecommunications Canada Inc. (collectively, the intervenors) filed comments and TELUS filed comments in reply.

Commission determination on TELUS' requests

6.

The Commission has considered the submissions of TELUS and the intervenors and addresses TELUS' seven requests in this decision in the order that TELUS presented them in paragraph 48 of its 1 November 2002 letter.

7.

Before addressing TELUS' seven specific requests, the Commission notes that in general terms, TELUS has suggested that the interrogatories addressed to TELUS by the Commission on 11 October 2002 "seem to imply that the Commission could change foundational determinations made in Decision 2002-34 as well as foundational determinations that predate the price cap decision". TELUS also stated that if the scope of the proceeding has expanded, procedures must be established to allow TELUS and others to put evidence before the Commission "to deal with some of the complex matters raised" in the interrogatories.

8.

In the Commission's view, as explained in detail below, the interrogatories issued on 11 October 2002 do not expand the scope of the CDNA proceeding beyond that established in Public Notice 2002-4 as amended. The Commission considers that TELUS had proper notice of the scope of the proceeding through Public Notice 2002-4 as amended, and that the interrogatories in question fall within the scope of that notice. The Commission reiterates, as recently stated in Telecom Decision CRTC 2002-67, TELUS Communications Inc. - Application to review and vary Decision 2000-745 and Decision 2001-238, 25 October 2002 (Decision 2002-67), that it would be impossible to identify in a Public Notice every specific question that the Commission might address in the course of a comprehensive proceeding. It is sufficient that a Public Notice identify the broad scope of a proceeding. In addition, as stated in Decision 2002-67, the Commission considers that responses to interrogatories constitute evidence in a proceeding. The 11 October 2002 interrogatories thus provide TELUS, and other parties, with an opportunity to file evidence on the matters in issue.

9.

The first matter on which TELUS requested notice was whether the issue of compensation to competitors for the introduction of the CDNA service was within the scope of Public Notice 2002-4.

10.

The Commission notes that it addressed the issue of compensation for incumbent local exchange carriers (ILECs) for the introduction of the CDNA service in Telecom Decision CRTC 2002-34, Regulatory framework for second price cap period, 30 May 2002 (Decision 2002-34). However, that decision did not consider the issue of compensation for competitors. In paragraph 50 of Public Notice 2002-4 as amended, the Commission reminded parties making submissions with respect to whether the CDNA service should include digital inter-exchange transport service and associated components of the Digital Network Access (DNA) service in circumstances other than those set out in Decision 2002-34, to include a discussion of the factors influencing the competitive supply of these facilities as well as competitors' ability to self-supply these facilities. The issue of compensation for competitors is related to considerations that determine the supply of the facilities under consideration by parties other than ILECs and to the establishment of the CDNA service generally.

11.

The Commission further notes that Group Telecom addressed the issue of compensation for competitors in its 13 September 2002 submission in the CDNA proceeding, and that TELUS had the opportunity to test the issue by addressing interrogatories by 11 October 2002.

12.

The Commission considers that Public Notice 2002-4 as amended, as well as Group Telecom's submission, gave notice to TELUS of this issue and confirms that the issue of compensation to competitors for the introduction of the CDNA service is within the scope of the CDNA proceeding.

13.

The second matter on which TELUS requested notice was whether the Commission intended to review Decision 2002-34 in a manner that would change the test for Category I Competitor Services.

14.

The Commission notes that in paragraph 167 of Decision 2002-34 it established two categories within the Competitor Services basket in order to clarify the pricing treatment of these services. The first category, Category I, comprised those services that are in the nature of an essential service. Services in the nature of an essential service comprised interconnection and ancillary services required by Canadian carriers and resellers interconnecting to the ILEC's networks, including essential services as defined in Telecom Decision CRTC 97-8, Local competition, 1 May 1997, and near-essential services, such as those that were the subject of Order CRTC 2001-184, Local competition : Sunset clause for near-essential facilities, 1 March 2001.

15.

The Commission confirms that it does not intend to change the test for Category I services.

16.

The third matter on which TELUS requested notice was whether the scope of the proceeding initiated by Public Notice 2002-4 as amended contemplated the development of new geographic areas different from the bands established in Decision CRTC 2001-238, Restructured bands, revised loop rates and related issues, 27 April 2001 (Decision 2001-238) or any predecessor rulings.

17.

The Commission notes that the banding structure it approved in Decision 2001-238 was established for the specific regulatory purposes identified in that decision. In paragraph 31 of Decision 2001-238, the Commission found that the approved bands would ensure that the ILECs' loop rates in both high-cost and non high-cost serving areas would be just and reasonable and would also ensure that the national subsidy fund established in Decision CRTC 2000-745, Changes to the contribution regime, 30 November 2000, operated in a manner consistent with the Telecommunications Act.

18.

The Commission confirms that, in the proceeding initiated by Public Notice 2002-4 as amended, it does not intend to develop, for the purpose of Decision 2001-238, new geographic areas different from the bands established in that decision.

19.

The Commission further notes that in paragraph 47(b) of Public Notice 2002-4 as amended it raised the issue of what an appropriate definition of metropolitan area would be if digital inter-exchange transport services and associated links in metropolitan and extended area service areas were made available as part of the CDNA service. Further, in paragraph 47(c) of Public Notice 2002-4 as amended, the Commission invited comments on a possible approach to the issue of an appropriate definition of metropolitan area that would refer to the bands determined in Decision 2001-238. The interrogatories in question explore how a metropolitan area might be defined if such a concept were to be adopted in respect of a digital service available to competitors. Therefore, in the Commission's view, the interrogatories in question are clearly within the scope of the CDNA proceeding.

20.

The fourth matter on which TELUS requested notice was whether the issue of a variable mark-up is within the scope of the CDNA proceeding.

21.

The Commission notes that in paragraph 168 of Decision 2002-34 it stated that Category I Competitor Services will be priced on the basis of Phase II costs plus the mandated mark-up. In paragraph 169 of Decision 2002-34, the Commission stated that the pricing of Category II Competitor Services would be determined on a case-by-case basis. Thus, the mark-ups for Category II Competitor Services may vary among the services in this category.

22.

The Commission therefore notes that mark-ups may be considered to be variable insofar as the Commission's pricing policy permits mark-ups that vary.

23.

The Commission further notes that, by definition, as this proceeding includes the issue of whether the CDNA service should include digital inter-exchange transport services and associated links or components of the DNA service, the issue of determining rates for any such additional services or components is clearly within the scope of the proceeding. Further, in establishing any such rates, the Commission must determine whether the services or components in question would fall within Category I or Category II. If any are held to fall within Category II, as noted above, mark-ups would be determined on a case-by-case basis.

24.

The fifth matter on which TELUS requested notice was whether the policy matter related to public thoroughfares raised in interrogatory TELUS(CRTC)11October02-204 was sufficient to render irrelevant all evidence of competitor supply of DNA facilities.

25.

The Commission notes that the subject of this interrogatory is within the scope of the CDNA proceeding in that it relates to the supply of facilities by non-ILECs, a matter raised in paragraph 50 of Public Notice 2002-4 as amended. The Commission further notes that TELUS and other parties may, in any comments filed by 21 March 2003, present argument with respect to the relationship between public thoroughfares and evidence of competitor supply of DNA facilities. Such argument could address whether the policy matter related to public thoroughfares does or does not make any such evidence irrelevant.

26.

The sixth matter on which TELUS requested notice was whether the Commission intended to open up and incorporate the record of Public Notice CRTC 2001-126, Trunking arrangements for the interchange of traffic and the point of interconnection between local exchange carriers, 19 December 2001 (Public Notice 2001-126) into the record of the proceeding initiated by Public Notice 2002-4 as amended.

27.

The Commission considers that interrogatory TELUS(CRTC)11October02-211 has provided TELUS with an opportunity to submit its views on any impact that implementing a proposal under consideration in the proceeding initiated by Public Notice 2001-126 might have on matters relevant to issues within the scope of the CDNA proceeding. The Commission notes that TELUS may attach to its response to that interrogatory a copy of such material on the record of the proceeding initiated by Public Notice 2001-126 as it considers necessary to support its position in the CDNA proceeding. However, the Commission is not incorporating the record of Public Notice 2001-126 as such into the record of the CDNA proceeding.

28.

The seventh matter on which TELUS requested clarification was whether there was a regulatory purpose for requiring it to identify customer names in its responses to the interrogatories it received from the Commission on 11 October 2002. TELUS referred to interrogatories TELUS(CRTC)11October02-113 to 119 in this connection. In paragraph 37 of its 1 November 2002 letter, TELUS stated that it understood that the information could be provided to the Commission in confidence.

29.

TELUS stated that it would not object to disclosing the names of its affiliates within an anonymous description and ranking of non-affiliated customers. Additionally, TELUS would not object to characterizing customers on the basis of their status as telecommunications service providers or otherwise. However, in the absence of any regulatory purpose for disclosing specific customer names for the purposes of this proceeding, TELUS considered that the risk of inadvertent disclosure would be too great. TELUS further stated that it would provide the individual customer information requested by the Commission in the format requested by the Commission but excluding the customers' names.

30.

The Commission notes that the responses to the interrogatories that are the subject of TELUS' seventh request for notice will permit the Commission to better understand the nature of the market for retail DNA service. Accordingly, the Commission directs TELUS to provide all information, including the names and rankings of its customers, requested by the Commission in its 11 October 2002 interrogatories. The Commission notes that TELUS may claim confidentiality for any information contained in its interrogatory responses that satisfy the criteria set out in the CRTC Telecommunications Rules of Procedure.

31.

Finally, the Commission notes that TELUS received the interrogatories that form the basis of its 1 November 2002 request for notice on 11 October 2002. The Commission expects that a party requesting notice or clarification on any issue will do so at the earliest possible opportunity.

Revised schedule for Public Notice 2002-4 as amended

32.

The Commission revises the dates and procedure associated with the filing and service of particular documents established in paragraphs 56 to 60 of Public Notice 2002-4 as amended, as set out below:

Paragraph 56: Parties' requests for further responses to their interrogatories, specifying in each case why a further response is both relevant and necessary, and requests for public disclosure of information for which confidentiality has been claimed, setting out in each case the reasons for disclosure, must be filed with the Commission and served on the party in question, by 15 January 2003.

Paragraph 57: Written responses to requests for further responses to interrogatories and for public disclosure must be filed with the Commission and served on the party in question, by 24 January 2003.

Paragraph 58: A determination will be issued with respect to requests for further information and public disclosure as soon as possible, and it is expected that any information to be provided pursuant to that determination will be filed with the Commission and served on all parties, by 28 February 2003.

Paragraph 59: Parties may file comments with the Commission, serving a copy on all other parties, on all matters within the scope of the CDNA proceeding, by 21 March 2003.

Paragraph 60: Parties may file reply comments with the Commission, serving a copy on all other parties, on all matters within the scope of the CDNA proceeding, by 1 April 2003.

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