|
|
Telecom Decision CRTC 2003-73
|
|
|
Ottawa, 31 October 2003
|
|
|
TELUS Communications Inc. - Changes to co-location tariffs and central office license agreements
|
|
|
Reference: TCI Tariff Notices 485 and 485A
TCBC Tariff Notices 4170 and 4170A
|
|
|
The Commission approves with modifications, Tariff Notices 485A and 4170A filed by TELUS Communications Inc. and TELUS Communications (B.C.) Inc., respectively. In addition, the Commission establishes a 30-day show cause process to determine the appropriateness of applying the determinations made in this decision to other local exchange carriers (LECs) offering co-location services and a second 30-day show cause process to all LECs offering co-location services concerning the appropriateness of implementing the preliminary views expressed by the Commission in this decision.
|
|
|
Background
|
|
1.
|
In Co-location, Telecom Decision CRTC 97-15, 16 June 1997 (Decision 97-15), the Commission established the co-location rules for the then Stentor Resource Centre Inc. (Stentor) companies. In Decision 97-15, the Commission also approved two types of physical co-location (PCL) arrangements (Type 1 and Type 2)1, co-location tariffs and Central Office Licence Agreements (COLAs) for the Stentor-member companies. The tariffs and COLAs have been amended as a result of subsequent Commission orders and decisions and consensus reports from the CRTC Interconnection Steering Committee (CISC).
|
|
2.
|
In Co-Location Group (CLG): Consensus Items CLRE020C and CLRE021C, Decision CRTC 2001-661, 22 October 2001 (Decision 2001-661), the Commission approved the CLG's consensus reports concerning co-location ordering intervals, revised co-location service categories and delivery timelines.
|
|
3.
|
In CRTC sets deadlines for co-location common cost rebates, Telecom Decision CRTC 2002-5, 1 February 2002 (Decision 2002-5), the Commission established deadlines and conditions for the administration of the Type 1 PCL common cost rebate process by incumbent local exchange carriers (ILECs) offering co-location.
|
|
|
The applications
|
|
4.
|
Pursuant to the determinations made by the Commission in Decisions 2001-661 and 2002-5, TELUS Communications Inc. (TCI), on behalf of itself and TELUS Communications (B.C.) Inc. (TCBC) (collectively, TCI), filed tariff applications Tariff Notice 485, Carrier Access Tariff, Virtual Co-location, item 255 for TCI and Tariff Notice 4170, Carrier Access Tariff, Co-location Arrangements for Interconnecting Canadian Carriers, item 110 for TCBC on 4 March 2002. On 2 April 2002, TCI filed Tariff Notices 485A and 4170A on behalf of itself and TCBC, respectively. These tariff notices contained revisions to TCI's and TCBC's Co-location tariff and COLAs.
|
|
|
Process
|
|
5.
|
On 2 May 2002, Call-Net Enterprises Inc. and GT Group Telecom Services Corp. (collectively, Call-Net) filed comments on both tariff notice applications. Call-Net's comments and proposed wording changes were limited to Tariff Notice 485A. Call-Net stated that all references to Tariff Notice 485A applied equally to Tariff Notice 4170A. Call-Net also requested that the Commission initiate a proceeding to revise and standardize COLAs across Canada to reduce the overlap between the COLA, tariffs, Master Agreement on Local Interconnection and other co-location documents.
|
|
6.
|
On 13 May 2002, in reply TCI argued that while Call-Net had commented on many of the proposed tariff notice revisions, it had also raised a number of issues that were well beyond the scope of Decisions 2001-661 and 2002-5. TCI submitted that the issues raised by Call-Net, as well as its proposed wording changes, should be rejected. TCI argued that, should the Commission consider addressing such issues, it was critical that they be addressed in the context of all local exchange carriers (LECs) offering co-location, and not TCI in isolation.
|
|
7.
|
The Commission considers that a number of the issues raised by Call-Net fall outside those considered in Decisions 2001-661 and 2002-5 and would normally be considered beyond the scope of Tariff Notices 485A and 4170A. The Commission, however, is of the view that issues raised by Call-Net that are the outcome of previous Commission determinations and CISC discussions, but not specifically covered by Decisions 2001-661 and 2002-5, should be considered at this time. The Commission notes that Decision 2001-661 applied to all ILECs offering co-location and Decision 2002-5 applied to all LECs offering co-location. In addition, Decision 2002-5 is the result of a consensus process within the CISC CLG where all LECs offering co-location are represented. Accordingly, in the interest of moving to a standardized co-location process across Canada, the Commission is providing decisions with respect to certain issues brought forward by Call-Net. The issue of whether determinations made in this proceeding should apply not only to TCI but to all LECs offering co-location is dealt with later in this decision.
|
|
8.
|
In this decision, each tariff item and section of the COLA addressed by the parties will be discussed individually. The Commission notes that where it makes reference to Tariff Notice 485A in its findings in this decision, the determinations apply equally to Tariff Notice 4170A.
|
|
|
Tariff item 255.4 (13) for TCI and tariff item 110 for TCBC
|
|
9.
|
Tariff items 255 and 110 deal with the process of administration and payments associated with common costs and the common cost rebate process. These two tariff item issues were the subject of a Part VII application dated 24 September 2001, submitted by the Coalition for Better Co-location, requesting changes to the common cost rebate process. Decision 2002-5 was issued as a result of the Part VII process and established a set of deadlines and timeframes for the common cost rebate process.
|
|
|
Position of parties
|
|
10.
|
Call-Net pointed out that there were two categories of PCL, Type 1 and Type 2. Call-Net argued that the tariff should make a distinction between both as their attributes were different. Call-Net indicated that the two types of PCLs differ with respect to the proper attribution of common costs. In this regard, Call-Net indicated that it had received a set of common cost estimates from an ILEC that had proposed Type 2 co-location that was more expensive that Type 1 co-location; this situation arose because the ILEC attributed a significant amount of common costs to Call-Net. Call-Net argued that Tariff Notice 485 permitted TCI to continue to attribute material amounts of common costs to Type 2 co-locators, and requested that the COLA be modified to reflect the inapplicability of the majority of common costs to Type 2 co-locations. Call-Net stated that the COLA should explicitly state what cost elements TCI can recover from Type 2 co-locators. Call-Net proposed adding the words "requesting Type 1 co-location" to tariff item 255.4 (13) in order to clarify the tariff.
|
|
11.
|
In reply, TCI argued that Call-Net's proposed wording change was unnecessary. TCI noted that the proposed wording in Tariff Notice 485A for tariff item 255.4 (13) made reference to a subsequent Interconnecting Carriers (ICs) being responsible for paying a contribution to common costs, within the meaning of Decision 2002-5. TCI pointed out that the determinations made in Decision 2002-5 applied to Type 1 co-location arrangements. TCI added that the covering letter accompanying Tariff Notice 485A clearly referred to Type 1 co-location. TCI stated that, although Decision 2002-5 restricted the common cost rebate process to Type 1 PCLs, notwithstanding the above, the rebate process should apply to all co-location arrangements. TCI stated that as this issue had not come before the Commission, a process would be required to address such a proposal, and in the context of all LECs offering co-location.
|
|
|
Commission analysis and determination
|
|
12.
|
The Commission considers that the text in tariff item 255.4 (13) referring to Decision 2002-5 is correct; Decision 2002-5 does deal specifically with Type 1 co-location. The Commission, however, finds that adding a reference specifying that common costs apply to Type 1 co-location would help to clarify the tariff further. Accordingly, the Commission directs TCI to add to tariff items 255.4 (13) and 110 the words "requesting Type 1 co-location".
|
|
13.
|
The Commission notes Call-Net's statement that it had received an estimate for Type 2 co-location costs from a LEC. Section 25 of the Telecommunications Act precludes Canadian carriers from providing a telecommunications service without Commission approval. The Commission notes that the issue of applying common costs to categories of co-location other than Type 1 has not yet been brought to the Commission for review. Accordingly, the Commission determines that until the issue of applying common costs to categories of co-location other than Type 1 is considered by the Commission, LECs offering co-location cannot apply common costs to categories of PCL other than to Type 1.
|
|
|
COLA section 2.01
|
|
14.
|
Section 2.01 of the COLA outlines the process for a potential co-locator to acquire PCL. TCI implemented changes to schedules C.1, Note 4 and C.2, Note 7 in response to Decision 2001-661.
|
|
|
Position of parties
|
|
15.
|
Call-Net stated that TCI's proposed text in section 2.01 of the COLA introduced limitations on co-location availability. Call-Net submitted that these limitations were addressed in consensus report CLRE021C dealing with co-location intervals, which were then included in Schedules C.1, Note 4 and C.2, Note 7 of TCI's revised COLA. Call-Net recommended that to avoid duplication, confusion and contradiction, the reference to co-location availability be replaced with a reference to the above-mentioned schedule notes.
|
|
16.
|
TCI replied that it had not altered section 2.01 of the COLA in Tariff Notice 485A, and that the Commission approved the wording in the section. TCI indicated that section 2.01 was a general statement that reflected that PCL is subject to the availability of appropriate floor space, facilities and necessary resources, and that consensus report CLRE021C was not intended to override this general qualification. TCI submitted that Schedules C.1 and C.2 set out the service intervals that apply when this precondition was met, and argued that the above-mentioned schedule notes simply reflected the fact that exceptional circumstances may impact TCI's ability to deliver co-location services within the approved intervals. Accordingly, TCI argued that no change in wording should be made to section 2.01 of the COLA.
|
|
|
Commission analysis and determination
|
|
17.
|
The Commission notes that consensus report CLRE021C established co-location ordering intervals and delivery timelines. TCI added these approved timelines to its COLA under Schedules C.1 and C.2, including the following general qualifier in Notes 4 and 7:
|
|
|
Exceptional circumstances, such as industry-wide material shortages or unanticipated work volumes, may impact TELUS' ability to deliver co-location services within the intervals outlined in this Schedule.
|
|
18.
|
In the Commission's view this general qualifier was not intended to replace the wording in section 2.01 of the COLA. Specifically, the general qualifier describes TCI's inability to meet a scheduled delivery time due to material shortages or unforecasted work volume, whereas section 2.01 of the COLA describes the inability to provide co-location space due to the unavailability of appropriate floor space. In the Commission's view, in order for the service intervals and timelines to apply, co-location space must be available. The Commission concludes that if the words "the availability of appropriate floor space, facilities and necessary" were removed from section 2.01 of the COLA, it could be implied that co-location space is always available when, in fact, this is not the case.
|
|
19.
|
The Commission notes that it has addressed the issue of co-location space exhaust in several past proceedings. In the proceeding that led to The Coalition for Better Co-location - Part VII application for general relief with respect to the co-location regime, Order CRTC 2001-780, 26 October 2001 (Order 2001-780), the ILECs filed information identifying the Central Offices (COs) in which co-location space was unavailable. In Order 2001-780, the Commission directed that adjacent co-location be examined as an option where co-location space has been exhausted. Also, ILECs were directed to provide detailed information on CO floor space to enable early discussions with the competitive local exchange carrier (CLEC) in evaluating possible solutions where space appeared limited or where space exhaust had not yet been investigated. The Commission also notes that Decision CRTC 2001-287, 25 May 2001 and Decision CRTC 2001-512, 20 August 2001 provided alternatives for smaller co-locators to use less co-location space through sub-leasing or CLEC assignment of co-location space.
|
|
20.
|
In the Commission's view, section 2.01 of the COLA does not duplicate the general qualifier from consensus report CLRE021C and is therefore appropriate. Accordingly, the Commission denies Call-Net's proposed wording change to section 2.01 of the COLA.
|
|
|
COLA sections 2.03 and 6.03.01
|
|
21.
|
Section 2.03 of the COLA deals with the process of applications related to obtaining PCL space. Section 6.03.01 of the COLA deals with any installation activities associated with equipment to be co-located. TCI implemented changes to section 2.03 of the COLA in response to Decision 2001-661.
|
|
|
Position of parties
|
|
22.
|
Call-Net argued that sections 2.03 and 6.03.01 of the COLA suggested that an application and notification were required to install equipment in a co-location site, and that this was not the intent of, and in contradiction with, consensus report CLRE020C. Call-Net suggested that by modifying section 2.03 of the COLA by adding the word "initial" before the word "installation"2, the process would be clarified to reflect that a CLEC intended to install a particular type of equipment territory-wide rather than on a site-specific basis. Call-Net submitted that, once duly notified, no application was required to install approved equipment in any CLEC co-location within TCI's territory. With respect to section 6.03.01 of the COLA, which deals with a similar topic, Call-Net proposed striking out the section in its entirety.
|
|
23.
|
TCI stated that section 2.03 of the COLA must be read with section 2.05 of the same document, which provided that a new application was not required when there were no impacts on TCI facilities and installations, or any changes in power consumption or heat generation. TCI referred to consensus reports CLRE020C and CLRE021C, which contemplated that the LEC offering co-location would request a standard co-location application where there was an environmental assessment requirement or reconditioning of its facilities. The standard service delivery timeframes set out in consensus report CLRE021C included appropriate intervals, calculated from the time the initial application was submitted with respect to rearrangements of infrastructure and of power. TCI argued that the process for addressing applicable charges remain intact where modifications to the CO premises were required. TCI argued that given that additional applications would follow the initial co-location application, Call-Net's suggested wording change should be rejected.
|
|
24.
|
TCI argued that the suggestion to delete section 6.03.01 of the COLA was beyond the scope of Tariff Notice 485A, as it was not at issue in Decisions 2001-661 or 2002-5. TCI also noted that the Commission has already approved the wording in section 6.03.01 of the COLA.
|
|
|
Commission analysis and determination
|
|
25.
|
The Commission notes that consensus report CLRE020C stipulates at section 1.0 that:
|
|
|
co-locators may install approved equipment within existing co-location licensed space without submitting a site-specific Co-location Application and Planning Addendum 1B.
|
|
26.
|
Accordingly, the Commission notes that once TCI has approved a particular type of equipment, the IC can install the equipment on a territory-wide basis, without submitting an application to install it in another site thereafter.
|
|
27.
|
The Commission considers that TCI does not disagree with the understanding of consensus report CLRE020C. The Commission notes, for example, TCI's response that section 2.05 of the COLA indicates that a new application is not required where additional IC equipment has no impact on its facilities and installations. TCI submitted that if the equipment does have such an impact, an application is required. In the Commission's view, this approach reflects the consensus reached at item 4.0 of consensus report CLRE020C. The application provides TCI with the necessary information to determine the charges that apply as a consequence of any new demands the IC equipment may have on its facilities and whether they increase or decrease power consumption or heat generation.
|
|
28.
|
In the Commission's view, the proposal to add the word "initial" in section 2.03 of the COLA would not relieve the IC from filing an application where environmental impacts would occur regardless of whether the same equipment is being installed on a territory-wide basis or not. For example, installing a specific type of approved transmission equipment in one CO may not have any impact on TCI's facilities, whereas installing the same equipment in another CO may cause environmental changes. Therefore, it is quite possible that additional applications for environmental purposes may be required for the same approved equipment.
|
|
29.
|
The Commission considers that adding the word "initial" implies that an application will be required when a type of approved transmission equipment is being installed for the first time. The Commission, however, is more concerned that omitting the word "initial" could imply that an application is required each time the same type of approved transmission equipment is installed, thus contrary to consensus report CLRE020C, section 1.0. Accordingly, the Commission directs TCI to add the word "initial" in section 2.03 of the COLA.
|
|
30.
|
With respect to Call-Net's proposal to delete section 6.03.01 of the COLA, the Commission finds that this suggestion is beyond the scope of TCI's Tariff Notice 485A application. The Commission, however, considers it appropriate to make a determination on this issue.
|
|
31.
|
In reading section 6.03.01 of the COLA, the Commission notes that two conditions are prescribed:
|
|
|
- the requirement to obtain prior written approval from TCI for an IC's installation activities; and
|
|
|
- prior to any installation activities, the requirement for the IC to submit information to TCI.
|
|
32.
|
In the Commission's view, knowing that equipment changes are to be made by the IC, and what they are, enables TCI to determine if the changes will have an impact on its infrastructure. Consideration can be given to issues such as weight load, the need for overhead racking, or demands on power consumption or heat generation. In the Commission's view, obtaining this information prior to installation is appropriate. Accordingly, the Commission denies Call-Net's proposal to delete section 6.03.01 of the COLA.
|
|
|
COLA sections 2.03.01 and 20.02
|
|
33.
|
Section 2.03.01 of the COLA deals with matters related to (a) the "initial report" that covers any engineering work required to accommodate a co-location request; and (b) the process related to the "secondary report" which establishes availability dates and service requirements including timeframes in which certain co-location events take place. Section 20.02 of the COLA deals with issues related to standards for transmission equipment to be co-located.
|
|
|
Position of parties
|
|
34.
|
Call-Net submitted that in sections 2.03.02 and 20.02 of the COLA, TCI's PCL tariff overlapped the COLA with regard to eligible co-location equipment. To avoid any confusion and contradiction, wherever co-location equipment issues are discussed in the COLA, Call-Net proposed that the words be replaced with references to the PCL tariff, and be subject to Order 2001-780.
|
|
35.
|
TCI submitted that the proposed wording changes in Tariff Notice 485A did not include changes to section 2.03.01 of the COLA in reference to eligible equipment, nor to section 20.02 of the COLA, both of which contained wording that has been approved by the Commission. TCI argued that section 2.03.01 of the COLA made no mention of co-location eligible equipment.
|
|
36.
|
TCI noted that section 2.02 of the COLA stipulated that "only transmission equipment as defined in the PCL Tariff may be co-located" and that the tariff defining eligible transmission equipment referred to Order 2001-780. TCI disagreed with Call-Net's proposal to delete from section 20.02 of the COLA the requirement that transmission equipment comply with applicable industry, governmental and TCI standards. TCI submitted that the wording was directly related to the third component of the definition of transmission equipment as set out in the tariff which stated ".meets all industry standards as referred to in the Co-location Agreement", and was therefore required. TCI disagreed with Call-Net's proposed changes, and stated that there was no confusion or contradiction with the manner in which both sections were worded.
|
|
|
Commission analysis and determination
|
|
37.
|
The Commission notes that section 2.03.01 of the COLA contains no reference to co-location equipment and therefore considers that there is no overlap in the COLA section with the tariff. Accordingly, the Commission denies Call-Net's proposed wording change to section 2.03.01 of the COLA.
|
|
38.
|
With respect to section 20.02 of the COLA, the Commission is of the view that adding the words "as defined in the PCL tariff" would clarify the COLA by referring the reader to the tariff where transmission equipment is defined in accordance with the determinations made in Order 2001-780.
|
|
39.
|
In the Commission's view, however, if the references to compliance to technical standards are removed from section 20.02 of the COLA, all references to the equipment standards are lost. For example, in the proposed manner in which section 20.02 is to be structured in Call-Net's proposal, the reader is directed to the definition of equipment in the PCL tariff, which in turn, refers the reader back to the COLA, as follows:
|
|
|
Transmission Equipment means IC-provided equipment that meets all industry standards as referred to in the Co-location Agreement.
|
|
40.
|
In Call-Net's proposal, if the compliance wording is deleted, the reader is not provided with compliance information. Accordingly, the Commission directs TCI to add the additional wording ".as defined in the PCL tariff" in section 20.02 of the COLA. The Commission denies Call-Net's proposal to delete certain wording related to standards in section 20.02 of the COLA.
|
|
|
COLA section 2.03.01
|
|
41.
|
In addition to the general description of section 2.03.01 of the COLA provided above, this section also addresses issues related to the setting of a date on which the requested PCL arrangement will be available to the requesting co-locator, generally referred to as the PCL availability date.
|
|
|
Position of parties
|
|
42.
|
Call-Net suggested that the word "anticipated" be changed to "committed" in the definition of the availability date of each requested PCL arrangement. In its view, the word "committed" would adequately reflect the importance of this date as a firm date, as Call-Net scheduled all of its internal activities in the expectation that, barring any unavoidable delays such as acts of God, TCI would do everything in its power to meet the date. Also, Call-Net suggested that all qualifying words such as "planned" or "anticipated" that occasionally prefaced the phrase "PCL Availability" be removed.
|
|
43.
|
TCI submitted that it was very mindful of the timeframes within which co-location was to be provided. TCI noted that the timeframes which were set out in Schedules C.1 and C.2 of the COLA stated that TCI would "use all reasonable efforts to make such arrangements available within the specified intervals". TCI argued that the use of the term "anticipated" recognized that the date was subject to change, as contemplated and referred to in Decision 2002-5. TCI also noted that section 2.03.01 of the COLA has previously contained references to "anticipated PCL Availability Date", and such wording was approved by the Commission. TCI pointed out that the implications of failure by an ILEC to meet the availability dates are addressed in section 2.03.02 of the COLA.
|
|
|
Commission analysis and determination
|
|
44.
|
The Commission notes that although it referred to the anticipated or planned co-location date in Decision 2002-5, reference to these words was not part of the determination itself. Specifically, the Commission referred to the "Effective date" of a co-location site in relation to common cost rebates.
|
|
45.
|
The Commission, however, considers that regardless of the adjective used to describe the availability date, a penalty can be imposed if one or the other party misses the availability date. In the Commission's view, Call-Net's proposed wording does little to change the effect of missing the date. Accordingly, the Commission denies Call-Net's proposed wording change to section 2.03.01 of the COLA.
|
|
|
COLA section 2.03.02
|
|
46.
|
Section 2.03.02 of the COLA deals with matters relating to a missed PCL availability date. TCI implemented changes to this section in response to Decision 2002-5.
|
|
|
Position of parties
|
|
47.
|
Call-Net argued that TCI had, in section 2.03.02 of the COLA, demonstrated how biased the COLA is. Call-Net found it unacceptable that the proposed language of the section absolved TCI of any liability for missed due dates, while simultaneously holding a co-locator accountable for the negligence of itself and others. Call-Net submitted that when TCI failed to deliver co-location services in the required interval, it has had a devastating impact on many new entrants. Call-Net submitted that all the expenses related to sales, sales support, marketing, contractors and investments in offices continued, even though TCI missed the co-location due date. At the same time, however, no offsetting revenue was generated. Call-Net submitted that over the last price cap period, TCI failed to meet its co-location intervals over 81% of the time in British Columbia, and over 44% of the time in Alberta. Call-Net proposed imposing a financial penalty on TCI for missed dates, and suggested waiving 5% of the Phase 3 Project Management charges for each day of delay.
|
|
48.
|
TCI argued that Call-Net had raised a point which was not at issue in Decisions 2001-661 or 2002-5. More specifically, TCI argued that a substantive change of this nature was beyond the scope of Tariff Notice 485A. TCI submitted that if Call-Net's point were to be considered at all, an issue of this nature must, out of fairness, be considered in the context of all LECs offering co-location.
|
|
|
Commission analysis and determination
|
|
49.
|
The Commission notes that introducing a penalty for missed availability dates was not considered in Decisions 2001-661 or 2002-5, or in any other previous Commission determination. The Commission is of the view that the wording changes proposed by Call-Net are beyond the scope of Tariff Notice 485A and should not be adopted. Accordingly, the Commission denies the wording change proposed by Call-Net in section 2.03.02 of the COLA.
|
|
50.
|
The Commission considers, however, that the arguments raised by Call-Net have merit in that the consequences of missing the availability date impacts heavier on the co-locator than on TCI. This issue would need to be raised in a separate proceeding in which all other parties would have an opportunity to provide comments. Accordingly, the Commission finds that the issue of missed co-location availability dates should be addressed in Finalization of the Quality of Service rate adjustment plan for competitors, Telecom Public Notice CRTC 2003-9, 30 October 2003 dealing with competitive quality of service indicators.
|
|
|
COLA section 2.03.03
|
|
51.
|
Section 2.03.03 of the COLA pertains to the issue of rejected applications for co-location.
|
|
|
Position of parties
|
|
52.
|
Call-Net submitted that section 2.03.03 of the COLA stipulated that if TCI rejected an application because of the inappropriateness of the proposed equipment layout plan, the co-locator could amend and re-submit the existing application instead of filing a new one. Call-Net requested that the same provisions be extended to situations where the grounding plan and/or the equipment and cabling limitations needed to be changed.
|
|
53.
|
TCI submitted that this request was beyond the scope of Tariff Notice 485A and should not be considered.
|
|
|
Commission analysis and determination
|
|
54.
|
The Commission notes that Decisions 2001-661 and 2002-5, or any other previous Commission determination, did not refer to any additional circumstances, other than an inappropriate equipment layout, for amending and re-submitting an existing application. The Commission, however, is of the opinion that the request made by Call-Net, while outside the scope of Tariff Notice 485A, is reasonable. Accordingly, the Commission is of the preliminary view that a co-locator's ability to amend and re-submit an existing application, rather than filing a new application, should be extended to situations where the grounding plan and/or equipment and cabling limitations need to be modified.
|
|
|
COLA section 2.05 and new proposed section 20.03
|
|
55.
|
Section 2.05 of the COLA relates to modifications to any existing PCL arrangement with respect to transmission equipment and the conditions under which a PCL application is required. Proposed section 20.03 of the COLA deals with the manufacturers' information the IC would have to submit to TCI prior to the start of installation, with wording allowing TCI to either approve the equipment for installation in its territory or reject the proposed modification.
|
|
|
Position of parties
|
|
56.
|
Call-Net noted that consensus report CLRE020C stated:
|
|
|
Co-locators may install approved equipment within existing co-location licensed space without submitting a site-specific Co-location Application and Planning Addendum 1B.
|
|
57.
|
Call-Net argued that TCI incorrectly interpreted this amendment within section 2.05 of the COLA by stating that a new application would be required if additional equipment would increase power consumption or heat generation. Call-Net stated that any additional equipment would do so by default. Call-Net argued that the concern should be whether the incremental heat and power exceed forecasted environmental conditions and power requirements.
|
|
58.
|
Call-Net submitted that consensus report CLRE020C was intended to provide a means of communicating the environmental impact of incremental installations at specific co-location offices, on a bi-annual basis. This included a requirement for ICs to provide bi-annual forecasts for loop and connecting links for co-location. Call-Net stated that consensus report CLRE020C was intended to extend these principles to include the power and environmental conditioning requirements within an IC's co-locate sites. Call-Net pointed out that consensus report CLRE020C also provided a means for any co-location occupant, at any time, to request an assessment of environmental conditioning. Call-Net argued that with these provisions, a site-specific application for the installation of approved equipment was redundant, unnecessary and administratively onerous for both ICs and the ILECs.
|
|
59.
|
In addition, Call-Net indicated that consensus report CLRE020C outlined a process whereby the co-locator ensured its equipment was approved for co-location by the LEC offering co-location "within at least 20 days advanced notice of installation start within an ILEC territory". An IC was required to seek standards approval of equipment prior to installing the equipment in any of its co-location sites within that LEC's entire territory. Call-Net argued that it was more appropriate to specify the process for approval within Section 20 of the Agreement (Standards). In section 2.05 of the COLA, there is a requirement for ICs to notify TCI in advance of any modifications to any existing co-location arrangement. Call-Net proposed replacing this requirement with one where the IC would ensure that all equipment is approved for co-location in accordance with section 20.03 of the COLA, the new section proposed by Call-Net.
|
|
60.
|
TCI argued that the process for addressing charges related to environmental or power changes must remain intact, or an alternative process established, in order to recover costs associated with changes to existing power facilities or other existing infrastructure. TCI went on to state that where an application for co-location was not required as provided for in section 2.05 of the COLA, and where there were no impacts on TCI facilities, advance notice must still be provided to TCI concerning any modifications to an existing PCL arrangement, including particulars concerning equipment changes.
|
|
|
Commission analysis and determination
|
|
61.
|
In the Commission's view, Call-Net has raised two issues in its comments:
|
|
|
- the requirement for an IC to submit an application to install approved equipment if the equipment alters heat generation and power consumption; and
|
|
|
- the requirement for an IC to notify TCI of any equipment changes within an IC's licensed area, i.e., equipment removals, replacements, additions, upgrades, relocations or rearrangements.
|
|
62.
|
With regard to the first issue, the Commission notes that consensus report CLRE020C, item 4.0, established the condition that the IC "assumes the responsibility to maintain and provide, upon request by the ILEC and/or on a bi-annual basis, engineering records that demonstrate the overall environmental requirements of its installed equipment". In addition, consensus report CLRE020C established that the ILEC can request an application of the IC when the requirement for environmental assessment or reconditioning is identified by the user of a segregated heating ventilation and air conditioning (HVAC) system, by any user of a shared HVAC system, or by the ILEC. In the Commission's view, consensus report CLRE020C permits the IC to install approved equipment without an application, as argued by Call-Net, but at the same time, permits the ILEC to subsequently request engineering records of the IC's installed equipment. The Commission is therefore not persuaded by Call-Net's argument that the requirement for an IC to submit bi-annual forecasts to TCI on its co-location equipment renders it unnecessary for an IC to submit a new application if additional equipment will increase power consumption or heat generation. The Commission concludes that the changes proposed by TCI at section 2.05 of the COLA reflect the intent of consensus report CLRE020C and are therefore appropriate. Accordingly, the Commission denies Call-Net's proposed change to section 2.05 of the COLA.
|
|
63.
|
With regard to the second issue, Call-Net proposed replacing the requirement to notify TCI of any modifications to any existing PCL arrangement, including equipment changes, with a reference to its new proposed section 20.03 of the COLA, that is, the requirement to obtain approval from TCI of the equipment before installation. In the Commission's view, Call-Net's proposal does not reflect the consensus reached in the CLRE020C and CLRE021C reports. For instance, ensuring that installed equipment meets industry standards is not equivalent to informing TCI of modifications to an existing PCL arrangement, including equipment removals, replacements, additions, upgrades, relocations or rearrangements. As mentioned previously, the Commission is of the view that knowing what equipment changes are made by the IC enables a LEC to determine if the changes have any impact on its infrastructure such as weight loading or overhead racking and demands on power consumption or heat generation. In the Commission's view, obtaining this information prior to installation is appropriate. Accordingly, the Commission approves TCI's revised wording to section 2.05 of the COLA.
|
|
64.
|
The Commission notes that Call-Net proposed adding a new section 20.03 to TCI's COLA which would set out equipment approval requirements. The Commission notes that consensus report CLRE020C, item 3.0, sets out that process, which does not appear in TCI's revised COLA, allowing for an IC to obtain ILEC approval of equipment for installation. The Commission is of the view that the new section proposed by Call-Net properly reflects the process established in consensus report CLRE020C and should be included in TCI's COLA. Accordingly, the Commission directs TCI to include in its revised COLA the equipment approval process proposed by Call-Net's new section 20.03.
|
|
65.
|
The Commission notes that TCI's COLA section numbering scheme will need to be adjusted to reflect the insertion of this new section 20.03.
|
|
|
COLA section 2.07
|
|
66.
|
Section 2.07 of the COLA relates to the billing of non-recurring charges and common costs. TCI implemented changes to this section in response to Decision 2002-5.
|
|
|
Position of parties
|
|
67.
|
Call-Net disagreed with TCI that TCI can charge co-locators for non-recurring costs in advance of the PCL availability date. Call-Net argued that the Commission had not stated in Decision 2002-5 that the ILEC could invoice non-recurring costs in advance, noting that the only provision the Commission had made in that decision was that "the ILEC will invoice common costs to subsequent co-locators 40 days prior to the co-location effective date".
|
|
68.
|
Call-Net submitted that the words "non-recurring charges and" should be deleted from section 2.07 of the COLA.
|
|
69.
|
TCI submitted that the wording in Decision 2002-5 implied that the ILEC would have the ability to bill for non-recurring costs in advance of the co-location effective date. Specifically, TCI submitted that the Commission's statement in paragraph 30 of Decision 2002-5 indicated that access to the site should not be withheld if non-recurring costs were in arrears. Also, in paragraph 31 of the same decision, the Commission directed that the ILEC should first apply any partial payments to common costs, before applying them to non-recurring costs. TCI argued that these statements implied that an ILEC would have the ability to bill for non-recurring costs in advance of the effective date of co-location. TCI submitted that the proposed wording for the new section 2.07 of the COLA was consistent with this understanding.
|
|
|
Commission analysis and determination
|
|
70.
|
The Commission notes that section 2.07 of TCI's revised COLA reads as follows:
|
|
|
TELUS shall be entitled to bill the IC for non-recurring charges and common costs (within the meaning of Decision 2002-5) in advance of the PCL Availability Date.
|
|
71.
|
The Commission also notes that in the proceeding leading to Decision 2002-5, Bell Canada proposed that the financial risks associated with non-payment of co-location charges could be mitigated if Bell Canada could reserve the right to withhold access to co-location sites until payment for any non-recurring co-location costs were received by Bell Canada.
|
|
72.
|
The Commission notes that non-recurring costs are related to work done to meet the requirements of a specific co-locator, whereas common costs include the work done to the CO infrastructure that will be shared by other co-locators. The Commission notes that it did not stipulate in any previous determination that the ILEC could not bill for non-recurring charges prior to the effective date. The Commission further notes that it determined, in paragraph 18 of Decision 2002-5, that non-recurring costs would not be dealt with in Decision 2002-5 as they were a separate issue from common costs that were the subject of that proceeding. In Decision 2002-5, in order to clarify this point, the Commission established that the consequences of not paying non-recurring charges could not include withholding access to the co-location site, as these charges were not at issue in the application.
|
|
73.
|
The Commission considers that Decision 2002-5 could imply that non-recurring charges could be billed in advance of the effective date. However, in view of the fact that the Commission specifically stated in Decision 2002-5 that it would not deal with non-recurring charges in that decision, section 2.07 of the COLA should not link non-recurring charges to Decision 2002-5. Accordingly, the Commission directs TCI to remove from section 2.07 of the COLA the association made to Decision 2002-5 in reference to billing non-recurring charges.
|
|
|
COLA section 22.07
|
|
74.
|
Section 22.07 of the COLA relates to determining the customer of record with respect to TCI. TCI implemented changes to this section in response to Decision 2001-661.
|
|
|
Position of parties
|
|
75.
|
Call-Net argued that the issue of making the primary co-locator or the sub-licensee the customer of record was a reversal of the original position taken by TCI during CLG discussions wherein TCI insisted that the primary co-locator be the only customer of record. Call-Net stated that, although it understood the rationale for such a provision, it disagreed that it should be solely up to TCI to decide who the customer of record was. Call-Net recommended that the text be modified to show that the decision to make the sub-licensee the customer of record was a joint decision made between TCI and the primary co-locator.
|
|
76.
|
TCI submitted that its proposed wording for this section reflected the outcome of discussions which took place at the CISC CLG in June 2001, where TCI and Bell Canada indicated that due to operational and technical issues, it was preferred that the sub-licensee be responsible for interconnecting links and other services, rather than the IC in all instances. The action item from the minutes in question stated:
|
|
|
TELUS and Bell will need to amend the COLA removing the restriction that the IC must be the customer of record for connecting links.
|
|
77.
|
TCI argued that it was in the best position to determine who should be the customer of record, having regard to its own internal technical and operational considerations, and that Call-Net's proposed wording should be rejected.
|
|
|
Commission analysis and determination
|
|
78.
|
The Commission is of the view that although this issue is not specifically related to Decision 2001-661 and is thus outside the scope of Tariff Notice 485A, it is the outcome of previous CLG discussions and minutes. Specifically, in the Minutes of the 25/26 June 2001 CLG meetings, it is recorded that in a sub-lease situation, the ILECs' initial view was that the primary IC would need to order the connecting links. The ILECs pointed out, however, that their investigation identified that it would be their preference for the sub-lessee to order its own connecting links. The ILECs stated that the customer of record for the connecting links and loops must be the same. The Commission notes the action item following from those minutes required TCI and Bell Canada to amend the COLA, removing the restriction that the IC must be the customer of record for connecting links. At the 27 August 2001 CLG meeting, it was agreed that the added wording would indicate that the sub-licensee should obtain its own Common Language Location Indicator code so that the sub-licensee could order connecting links and loops.
|
|
79.
|
In contribution CLCO114A dated 14 December 2001, TCI amended its COLAs to reflect the Commission-approved consensus report from the CLG. Among the changes, TCI amended section 22.07 of the COLA to indicate that "at its discretion", it could determine that the customer of record would be the sub-licensee in respect to the provision of certain services. AT&T Canada Telecom Services Company (now Allstream Corp.) responded with contribution CLCO117A which stated, in part, that:
|
|
|
Section 22.07 must be reviewed and re-written to be more consistent with the minutes of the June 25/26 CLG meetings, where it was agreed that the Customer of Record for Connecting Links, is the Sub-licensee.
|
|
80.
|
TCI agreed to revise its contribution for review at the next CLG meeting. However, at the 25 March 2002 CLG meeting, TCI withdrew its contribution, and filed Tariff Notice 485.
|
|
81.
|
In the Commission's view, the intent of the CLG discussions was to have the sub-licensee be the customer of record to order items such as connecting links. The Commission does not believe there is a disagreement between parties on this point. The Commission believes, however, that Call-Net objects to having the decision as to which company is the customer of record made at the sole discretion of TCI.
|
|
82.
|
In the Commission's view, the fourth sentence in section 22.07 of the COLA should be modified by removing the discretionary condition with respect to the determination of the customer of record. With the absence of any party determining who should be the customer of record, the last sentence in section 22.07 of the COLA would serve to indicate that the sub-licensee would be the customer of record in respect of certain services.
|
|
83.
|
Accordingly, the Commission directs TCI to amend the fourth sentence of section 22.07 of the COLA to read as follows:
|
|
|
Notwithstanding the foregoing, for operational or technical reasons, the customer of record shall be the Sublicensee in respect to the provision of certain services or facilities to the Sublicensee (which services or facilities shall be referred to in this section 22.07 as the "Sublicensee Services").
|
|
|
Additional issues raised by Call-Net
|
|
|
COLA section 2.06
|
|
84.
|
Section 2.06 of the COLA outlines the process relating to costs applicable to a cancelled PCL application. TCI did not propose any changes to this section.
|
|
|
Position of parties
|
|
85.
|
Call-Net submitted that the cancellation costs specified in section 2.06 of the COLA were beyond those specified in tariff item 110.5. Tariff item 110.5 stated:
|
|
|
If the customer cancels the request for service or asks that the start of service be delayed after installation work has begun but before service has started, TCI will charge the customer the lower of the following two amounts: (a) the rate for the minimum contract period plus the rate to establish service; or (b) TCI's estimated costs of installation minus estimated net salvage.
|
|
86.
|
Call-Net argued that this was unfair treatment of co-locators in comparison to all other TCI customers and that this inconsistency should be corrected by adjusting the COLA to refer to TCI's tariff item 110.5.
|
|
87.
|
TCI responded that Call-Net's proposal was not at issue in Decisions 2001-661 and 2002-5, and was therefore beyond the scope of Tariff Notice 485A. TCI noted that the Commission had approved the existing wording, and argued that Call-Net's proposed change should not be considered.
|
|
|
Commission analysis and determination
|
|
88.
|
The Commission agrees that Call-Net's proposal was not an issue in Decisions 2001-661 and 2002-5, and as such is outside the scope of Tariff Notice 485A. The Commission, however, is of the view that Call-Net's comments have merit and should be considered. In the Commission's view, TCI should be required to consider the salvage value of any work undertaken as part of the PCL application. The Commission notes that adopting Call-Net's proposal would offer fair and equitable treatment to all of TCI's customers. Accordingly, the Commission is of the preliminary view that reference to the appropriate tariff item, such as tariff item 110.5 in the case of TCI, should be made in section 2.06 of the COLA.
|
|
|
COLA section 4.01(b)
|
|
89.
|
COLA section 4.01(b) relates to the licensed area of the PCL in the premises of TCI and the use of that licensed area. TCI did not propose any changes to this section as part of its applications.
|
|
|
Position of parties
|
|
90.
|
Call-Net acknowledged that the main purpose of TCI's tariff filing was to update the COLA to reflect recent Commission determinations. Call-Net, however, argued that TCI's revised COLA did not reflect all Commission determinations on co-location. Call-Net, as an example, cited section 4.01(b) of the COLA, which in its view still gave TCI unilateral discretion over floor space requests. Call-Net submitted that section 4.01(b) of the COLA needed to be updated pursuant to CRTC reduces co-location space restrictions - Show cause to ILECs other than Bell Canada, Order CRTC 2001-695, 10 September 2001 (Order 2001-695).
|
|
91.
|
In response, TCI submitted that section 4.01(b) of the COLA was a general provision relating to the granting of a non-exclusive license to use floor space, and was expressly subject to the rates, terms and conditions specified in the Tariffs as well as the COLA. TCI noted that section 4.01(b) never included the specific restriction on space, stating that space restrictions are addressed in its tariffs. TCI argued that it fully complied with the requirements of Order 2001-695 when it issued revised tariff pages, and added that the Order stated that ILECs and entrants could apply to the Commission for assistance in resolving issues related to the acquisition of co-location space in a central office.
|
|
|
Commission analysis and determination
|
|
92.
|
The Commission notes that in Order 2001-695, it directed the ILECs to issue revised tariff pages allowing an existing Type 1 co-locator to acquire additional Type 1 co-location space in increments of one square metre when it had exhausted its initial 20 square metre maximum in a CO. The Commission is of the view that TCI complied with the requirements of Order 2001-695 when it issued revised tariff pages incorporating this determination. Accordingly, the Commission denies Call-Net's proposed change with respect to COLA section 4.01(b).
|
|
|
Additional sections of the COLA
|
|
|
Position of parties
|
|
93.
|
Call-Net stated that over and above complying with Commission decisions, the proposed COLA still placed co-locators at a clear disadvantage when dealing with the ILEC. Call-Net cited the following examples to support its claim:
|
|
|
- section 12.14 forces a co-locator to waive its right to pursue TCI for breach of the Agreement;
|
|
|
- section 13.05 enables TCI to unilaterally suspend power delivery to the co-locator while still requiring the co-locator to pay for a service it is not receiving; and
|
|
|
- article 14 potentially forces co-locators to spend money to conform to TCI-initiated modifications, relocations, or rearrangements.
|
|
94.
|
Call-Net stated that there were many more areas where TCI had the unilateral ability to significantly disrupt the operations of a co-locator's network and ultimately end-user service.
|
|
95.
|
TCI argued that Call-Net raised issues clearly beyond the scope of this proceeding. Given that the COLA provisions in question had been approved by the Commission, TCI did not intend, within the context of this tariff notice, to comment on Call-Net's statements.
|
|
|
Commission analysis and determination
|
|
96.
|
In the Commission's view, the examples cited by Call-Net are new issues that were not considered in Decisions 2001-661 and 2002-5, or in any other previous Commission proceedings. Accordingly, the Commission finds that Call-Net's comments are beyond the scope of this proceeding. The Commission notes, however, that interested parties are not precluded from raising these issues in separate applications at a later date.
|
|
|
Need for a review of COLAs
|
|
|
Position of parties
|
|
97.
|
Call-Net believed a review of the COLA was warranted to reduce the overlap between the COLA, tariffs, Master Agreement on Local Interconnection and other co-location documents. Call-Net argued that standardization of the COLA and potentially all co-location documents across Canada would reduce the administrative complexity prevalent with the co-location regime of today. Call-Net recommended that the Commission create a forum for the industry to review and standardize all COLAs across Canada. Call-Net, however, was concerned that given the long delays associated with regulatory activities in which the ILECs are involved, such an exercise would divert CLEC resources from more pressing demands. To ensure that the process was not drawn out unnecessarily, Call-Net requested the Commission mandate that such a review be limited to 90 days.
|
|
98.
|
In reply, TCI responded that the Commission has already held lengthy and extensive public proceedings resulting in Review of Regulatory Framework, Telecom Decision CRTC 94-19, 16 September 1994, Decision 97-15 and Telecom Order CRTC 97-1926, 23 December 1997. TCI added that changing circumstances and issues have been adequately addressed since the initial approval of the COLAs through the CISC process, and further Commission determinations on Part VII applications associated with co-location.
|
|
99.
|
Noting that Call-Net has introduced a number of proposals that re-open the issue of approved COLA wording and go beyond the scope of Decisions 2001-661 or 2002-5, TCI argued that these proposals should be rejected. TCI argued that if the Commission considers addressing such issues, then it is critical that they be addressed in the context of all ILECs, and not TCI in isolation. TCI submitted that the wording changes proposed by Call-Net should be rejected, and that its application should be approved as filed.
|
|
|
Commission analysis and determination
|
|
100.
|
In the Commission's view, a number of Call-Net's comments go beyond the scope of Tariff Notice 485A as they are not at issue in Decisions 2001-661 or 2002-5, and could therefore be rejected. However, the Commission notes Call-Net's concerns with the long delays associated with regulatory activities. As noted earlier in this decision, several of Call-Net's proposals relate to previous determinations made by the Commission or discussions within CLGs. The Commission is of the view that the record on previous determinations is sufficient to allow the Commission to provide a determination on these issues. For some of the remaining issues, the Commission, while finding them outside of the scope of this proceeding, has provided a preliminary view on which parties can comment.
|
|
101.
|
The Commission believes that an appropriate forum already exists within the CISC CLG in which Call-Net can raise issues pertaining to the standardization of COLA agreements and the overlap of other co-location documents. The Commission is of the view that a request for a CISC task force can be brought before the CISC Steering Committee for approval. At that time, the Steering Committee can establish timelines within which work is to be undertaken and completed. All parties active in CISC can provide comments or contributions and consensus or non-consensus reports can be submitted to the Commission for approval or determinations.
|
|
102.
|
The Commission notes TCI's comment that any issues that are to be addressed in this proceeding should not be restricted to TCI but should involve all ILECs. The Commission is of the view that the numerous issues raised by Call-Net to bring clarity and consistency to the TCI COLA should involve all LECs offering co-location.
|
|
103.
|
Accordingly, the Commission directs TCI within 30 days of the date of this decision, to issue revised tariffs and COLAs reflecting the determinations made by the Commission in this decision. The Commission also directs TCI to show cause, within 30 days of this decision, on the appropriateness of applying the preliminary views expressed by the Commission in this decision to its tariffs and COLAs.
|
|
104.
|
The Commission directs all other LECs offering co-location services to show cause, within 30 days of the date of this decision, on the appropriateness of applying the determinations and preliminary views expressed by the Commission in this decision to their tariffs and COLAs.
|
|
|
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
|
|
|
Footnotes:
_______________________
1 Type 1 co-location provides the interconnecting carrier (IC) with segregated floor space and secure access to that space within the company's central office (CO), with floor space segregated from that occupied by the company. Unescorted access to this area by the IC's personnel or contractor, who have been approved by the company, is permitted. Type 2 co-location provides the IC with unsegregated floor space within the CO for the purpose of locating the IC's transmission equipment. Unescorted access to this area by the IC's personnel or contractor, who have been approved by the company, is permitted.
2 In Call-Net's comments dated 2 May 2002, the Commission considers that Call-Net's reference to the word "application" should have been the word "installation".
|
Date Modified: 2003-10-31