|
Telecom Decision CRTC 2005-57
|
|
Ottawa, 5 October 2005 |
|
Part VII application by YP Corp. against Bell Canada
|
|
Reference: 8622-Y2-200508731 |
|
The Commission finds that
billing and collection for directory advertising is not a
telecommunications service. YP Corp.'s application is therefore
denied. |
|
The application
|
1. |
The Commission received an
application from YP Corp. and its wholly owned affiliates, YPcom.ca,
Inc. and Telco of Canada Inc. (collectively YP Corp.), dated 22 July
2005, filed pursuant to Part VII of the CRTC Telecommunications Rules
of Procedure (the Rules), and sections 24, 25, 27, 32 and 47 of the
Telecommunications Act (the Act) seeking an order pursuant to
section 32 of the Act requiring Bell Canada to extend to YP Corp. a
billing and collection service for directory advertising on terms that
are in all material respects substantially the same as the terms of the
billing and collection arrangement between Bell Canada and Yellow Pages
Group Co. (YPG). |
2. |
YP Corp. also requested the
Commission to consider using its expedited process described in
Expedited procedure for resolving competitive issues, Telecom
Circular CRTC 2004-2,
10 February 2004 (Circular 2004-2),
to resolve the dispute. |
3. |
On 8 August 2005, the Commission
advised the parties that it would adjudicate this matter pursuant
to Part VII of the Rules on an expedited basis, in accordance with
the expedited process established in Circular 2004-2. |
4. |
A panel of three Commissioners
heard the matter on 23 September 2005. In addition to the oral component
of the proceeding and the 22 July 2005 application, the Commission
considered the written submissions and interrogatory responses from Bell
Canada and YP Corp. filed on 22 August 2005. |
|
Regulatory framework
|
5. |
Section 2 of the Act defines
"telecommunications service" as follows: |
|
telecommunications service means a service provided by means of
telecommunications facilities and includes the provision in whole or
in part of telecommunications facilities and any related equipment,
whether by sale, lease or otherwise; and
|
|
telecommunications facility means any facility, apparatus or
other thing that is used or is capable of being used for
telecommunications or for any operation directly connected with
telecommunications, and includes a transmission facility.
|
|
Section 23 of the Act defines
"telecommunications service" as follows: |
|
For the purposes of this Part and Part IV, telecommunications
service has the same meaning as in section 2 and includes any
service that is incidental to the business of providing
telecommunications services.
|
|
Subsection 27(2) of the Act
states that: |
|
No Canadian carrier shall, in relation to the provision of a
telecommunications service or the charging of a rate for it, unjustly
discriminate or give an undue or unreasonable preference toward any
person, including itself, or subject any person to an undue or
unreasonable advantage.
|
6. |
In Directory publisher billing
and collection service, Order CRTC 2001-575,
25 July 2001, the Commission approved TELUS Communications Inc.'s
(TCI) tariff filing to provide billing and collection of telephone
directory advertising charges on behalf of third party directory publishers
(General Tariff item 401). |
7. |
In Directory publisher billing
and collection service, Order CRTC 2001-576,
25 July 2001, the Commission approved TELUS Communications (Québec)
Inc.'s tariff filing to provide billing and collection of telephone
directory advertising charges on behalf of third party directory publishers
(Access Services Tariff section 1.03). |
|
Issue
|
8. |
Whether billing and collection
for directory advertising is a telecommunications service as defined in
the Act and if so, should be provided by Bell Canada pursuant to an
approved tariff. |
|
Position of parties
|
|
YP Corp. |
9. |
YP Corp. submitted that when
Bell Canada used its billing and collection system to render and collect
accounts for telecommunications-related activities provided by third
parties, Bell Canada was providing a service by means of a facility,
apparatus or other thing that is used or is capable of being used for an
operation directly connected with telecommunications thereby making the
provision of billing and collection services a telecommunications
service under section 2 of the Act. |
10. |
Alternatively, YP Corp.
submitted that the billing and collection service provided by
Bell Canada to YPG is a service incidental to the business of providing
telecommunications services and in accordance with section 23 of the Act
is a telecommunications service. |
11. |
YP Corp. argued that the
regulation of Bell Canada's provisioning of billing and collection
services for certain types of long distance services, 900 information
services, 976 information and chat line services was evidence that the
Commission considered billing and collection services to be a
telecommunications service within the meaning of section 2 or section 23
of the Act. |
12. |
YP Corp. further submitted that
the Commission's approval of TCI's General Tariff item 401 indicated
that the Commission believed that billing and collection of directory
advertising was a telecommunications service. |
13. |
YP Corp. argued that Bell
Canada's provision of a billing and collection arrangement solely to YPG
constituted an undue or unreasonable preference toward YPG and unjust
discrimination against YP Corp., as well as an undue or unreasonable
disadvantage to YP Corp., in contravention of subsection 27(2) of the
Act. |
|
Bell Canada |
14. |
Bell Canada submitted that its
billing and collection service is not a telecommunications service, as
defined in section 2 of the Act because it is not a service provided by
means of telecommunications facilities. |
15. |
Bell Canada further submitted
that the billing and collection services regulated by the Commission,
and relied upon by YP Corp. to support its view that billing and
collection was a telecommunications service, demonstrated that the
determination of the billing and collection service as a
telecommunications service was wholly dependent on the context in which
the billing and collection was provided. In Bell Canada's view, there
must be a fundamental link between the billing and collection service
under review and a section 2 telecommunications service. Absent this
necessary connection, Bell Canada argued, billing and collection could
not be properly characterized as a telecommunications service. |
16. |
Bell Canada also argued that
the Commission's approval of a tariff for billing and collection for
directory advertising in TCI's territories cannot be used to establish
the Commission's jurisdiction over these services because the
Commission's jurisdiction is established by statute and not by a prior
Commission decision. |
|
Commission analysis and determination
|
17. |
The Commission notes that its
jurisdiction is in respect of telecommunications services as defined in
sections 2 and 23 of the Act. The threshold issue in this proceeding is
whether billing and collection service for directory advertising is a
telecommunications service under the Act. |
18. |
The Commission's determination
as to whether Bell Canada is in contravention of subsection 27(2) of the
Act, by providing a billing and collection service for directory
advertising exclusively to YPG, can only be made once the Commission
determines that billing and collection service for directory advertising
is a telecommunications service. |
19. |
The Commission notes that
section 2 of the Act defines a telecommunications service as one
provided by means of telecommunications facilities and defines
telecommunications facilities as a facility, apparatus or other thing
that is used for telecommunications or an operation directly connected
with telecommunications. |
20. |
The Commission notes that Bell
Canada argued that its billing and collection system does not involve
the use of a telecommunication facility and therefore is not a section 2
telecommunications service. At the oral hearing, YP Corp. conceded that
Bell Canada's billing and collection service fits more properly within
section 23 of the Act rather than section 2 of the Act. |
21. |
The Commission considers that
Bell Canada's billing and collection service for directory advertising
does not involve the use of telecommunications facilities and is
therefore not a telecommunications service pursuant to section 2 of the
Act. |
22. |
The Commission notes that
section 23 of the Act defines telecommunications service more broadly
than section 2 of the Act. Rather than being defined in terms of
facilities or apparatus used for telecommunications, the definition in
section 23 focuses on any service that is incidental to the business of
providing telecommunications services. |
23. |
The Commission notes that YP
Corp. argued that Bell Canada's billing and collection service was in
and of itself a telecommunications service regardless of the service
being billed. The Commission also notes that Bell Canada argued that its
billing and collection service can only be characterized as a
telecommunications service when the billing and collection service is
provided for a telecommunications service as defined in section 2 of the
Act. |
24. |
The Commission is of the view
that the parties have presented the two ends of a continuum and that YP
Corp.'s definition is too broad and Bell Canada's definition is too
narrow. The Commission considers that billing and collection is a
telecommunications service so long as it is provided in respect of a
telecommunications service as defined in either section 2 or 23 of the
Act. |
25. |
In this case, Bell Canada is
providing billing and collection service for directory advertising. The
Commission considers that directory advertising is not a section 2
telecommunications service as it is not provided by means of
telecommunications facilities as required by section 2. |
26. |
The Commission further notes
that the provision of basic subscriber directory listing (name, address
and telephone number) for both residential and business customers is a
telecommunications service and forms part of basic local telephone
service. |
27. |
The Commission is of the view
that directory advertising is but one form of advertising that many
businesses use to promote their products and services to the public,
which is located in the telephone directory with basic subscriber
directory listing information. When viewed objectively, the Commission
considers that directory advertising is more in the nature of an
advertising service, than it is in the nature of a telecommunications
service. In light of the above, the Commission considers that directory
advertising is not incidental to the business of providing
telecommunications services, as required to meet the definition in
section 23 of the Act. |
28. |
The Commission considers
therefore that billing and collection for directory advertising is not a
telecommunications service under the Act because directory advertising
is not a telecommunications service under sections 2 or 23 of the Act. |
29. |
The Commission confirms that
there is a public interest in keeping the telephone bill as clear and as
comprehensible as possible. The Commission is of the view that the
telephone bill has special significance for residential and business
subscribers because subscribers generally consider their telephone
service to be essential to their everyday lives. The Commission would be
concerned if the inclusion of too many disparate services on the
telephone bill or any other telephone company billing practices rendered
the bill confusing to subscribers. The Commission notes that it will
address Billing Content issues in an upcoming process. |
30. |
The Commission finds that Bell
Canada has not breached subsection 27(2) in respect of YP Corp. because
billing and collection for directory advertising is not a
telecommunications service under the Act. Similarly, Bell Canada is not
required to file a tariff pursuant to section 25 of the Act. |
31. |
Accordingly, YP Corp.'s
application is denied. |
|
Secretary General |
|
This document
is available in alternative format upon request, and may also be examined
in PDF format
or in HTML at the following Internet site: http://www.crtc.gc.ca |