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Telecom Order CRTC 2005-74
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Ottawa, 23 February 2005 |
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TELUS Communications Inc.
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Reference: TELUS Québec Tariff
Notices 358 and
361 |
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Withdrawal of special facilities tariffs for optical fibre
arrangements
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1. |
The Commission received
applications by TELUS Communications (Québec) Inc. (TCI),1
dated 24 July 2003 and 17 October 2003, proposing to introduce Special
Facilities Tariff (SFT) item 4.01.49, Optical Fibre Network service, and
item 4.01.51, Optical Fibre Network service. Specifically, the company
requested approval of two separate private arrangements involving
intra-exchange and inter-exchange optical fibre (hereinafter referred to
as optical fibre or dark fibre) network facilities. |
2. |
Subsequently, TCI requested the
Commission's approval to withdraw Tariff Notices (TNs) 358 and 361
because they no longer accurately described the services to be
provided by the company to the customers. |
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Process
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3. |
On 5 September 2003, the Commission
sent a letter to TCI, inviting the company to revise TN 358 in
light of the Commission's determinations in Xit Télécom v. TELUS
Québec – Provision of fibre optic private networks, Telecom Decision
CRTC 2003-58,
22 August 2003 (Decision 2003-58).
On 30 October 2003, TCI responded to the Commission's 5 September 2003
letter. |
4. |
The Commission received
comments regarding TNs 358 and 361 from 4089316 Canada Inc., operating
as Xit télécom inc., on behalf of itself and Télécommunications Xittel
inc. (collectively, Xit), dated 29 October 2003 and 17 November 2003,
and reply comments from TCI, dated 4 November 2003 and 27 November 2003. |
5. |
On 10 September 2004, Xit filed
a Part VII application regarding the optical fibre network arrangement
contemplated by TN 358, for which the customer was the Commission
scolaire de la Côte-du-Sud. |
6. |
In a letter dated 8 October
2004, TCI requested the Commission's approval to withdraw TN 358. TCI
also filed an agreement as an attachment in support of its request. |
7. |
The Commission received
comments from Xit, opposing TCI's request to withdraw TN 358, dated 1
November 2004 and 15 November 2004, and reply comments from TCI, dated
11 November 2004 and 23 November 2004. |
8. |
In a letter dated 26 November
2004, TCI requested the Commission's approval to withdraw TN 361. TCI
also filed an agreement as an attachment in support of the letter. |
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Background
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9. |
In Decision 2003-58,
the Commission directed TCI to file proposed general tariffs for intra-exchange
and inter-exchange dark fibre. The Commission considered that these
general tariffs should be subject to the availability of existing
unused and unallocated facilities. The Commission further directed
TCI to apply the terms and conditions of the general tariffs in its
customer-specific SFTs for dark fibre projects. It stated that where
facilities were not available and construction had to be undertaken
to provide service to a particular customer, the rates for dark fibre
facilities should not be less than the general tariff rates. |
10. |
TCI filed proposed general tariffs
for intra-exchange and inter-exchange optical fibre under TNs 362
and 362A, which were approved in General tariff for intra-exchange
and inter-exchange optical fibre service in Quebec, Telecom Order
CRTC 2004-438,
23 December 2004. |
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Positions of parties
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11. |
In its 10 September 2004 Part
VII application, Xit submitted, among other things, that the partial
assignment of the optical fibre contract from TCI to Électro-Saguenay
Ltée (Électro-Saguenay) required the prior approval of the Commission
under sections 25 and 29 of the Telecommunications Act
(the Act), and requested that the Commission address its claims for
relief by way of an expedited process. |
12. |
In its letters requesting to
withdraw TNs 358 and 361, TCI stated that due to the nature of the
projects and the fact that TNs 358, 361, and 362A had not been disposed
of, and given that Allstream Corp.'s2 application for leave
to appeal Optical fibre service arrangements, Telecom Decision
CRTC 2004-20,
23 March 2004, had been granted by the Federal Court of Appeal, the
company had proceeded to identify, at the request of its customers,
alternative options in order that the projects could be completed. |
13. |
TCI stated that it had
withdrawn from the construction and the ultimate transfer of the optical
fibre networks to the customer by way of partial assignments of the
contracts in question. TCI also stated that Électro-Saguenay, a third
party, would carry out the network construction, and would ultimately
transfer the fibre networks in question to the customers. TCI further
stated that the contracts setting out the terms and conditions of
transfer to Électro-Saguenay had been signed on 14 September 2004 (for
TN 358) and 15 November 2004 (for TN 361). |
14. |
TCI stated that contrary to the
situations contemplated by TNs 358 and 361, the customers would own the
optical fibre networks rather than having a 20-year Indefeasible Right
of Use (IRU), and that ownership would be transferred to them by
Électro-Saguenay, not TCI. |
15. |
Xit opposed TCI's request for
approval to withdraw TN 358, submitting, among other things, that TCI
was providing service without an approved tariff, contrary to section 25
of the Act, and had failed to file the tripartite agreement between
itself, Électro-Saguenay, and the Commission scolaire de la Côte-du-Sud
for the Commission's approval, pursuant to section 29 of the Act. |
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Commission's analysis and determination
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16. |
The Commission notes that the
special facilities tariffs filed under TNs 358 and 361 contemplated that
the customers would acquire optical fibre from TCI on the basis of an
IRU arrangement, to be paid for via a single payment in advance, and
that TCI would provide ongoing network maintenance, to be paid for
annually. The Commission notes that based on TCI's submissions of 8
October 2004 and 26 November 2004, Électro-Saguenay will now be
providing the optical fibre to the customers instead of TCI. The
Commission also notes that the provision of such fibre will no longer be
subject to IRU arrangements, but is to be sold outright. As a result,
the Commission considers that the new arrangements are inconsistent with
the services described in TNs 358 and 361. |
17. |
With respect to Xit's
submissions regarding the partial assignment of the optical fibre
contract for the Commission scolaire de la Côte-du-Sud from TCI to
Électro-Saguenay, the Commission notes that an expedited hearing will be
held on 25 February 2005 to examine the matter. |
18. |
In light of the above, the Commission
approves the withdrawal of TNs 358 and 361. |
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Secretary General |
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