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Order CRTC 2000-13
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Ottawa, 18 January 2000 |
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File Nos.: Stentor TN 485;
BC TEL TN 3637;
Bell TN 6022;
NBTel TN 647;
MTS TNs 244 and 278;
TCI TN 926;
TCEI TNs 15 and 55;
Québec-Téléphone TN 170;
Télébec TN 126 |
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Rates set for access to telephone companies' support structures
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This order provides for national rates,
terms and conditions for access to incumbent telephone companies' poles
and conduit by cable companies and telecommunications carriers. The CRTC
also rules on issues of support structure capacity, application of
construction standards, and the access approval process. This order
follows previous Commission rulings made in Telecom Decision CRTC 95-13
and Telecom Order CRTC 96-1484. It
also results from the Commission's consideration of the Joint Report
presented to the Commission on 17 April 1997 by the incumbent
telephone companies, the Canadian Cable Television Association (CCTA) and
the Competitive Telecommunications Association (CTA). The report is the
product of the participants' consultations on contentious issues mandated
by the Commission in Order 96-1484. |
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Introduction
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1. |
In Access to Telephone Company Support
Structures, Telecom Decision CRTC 95-13,
dated 22 June 1995 (Decision 95-13),
the Commission established uniform rates for the use of poles, strand and
conduit of TELUS Communications Inc. (TCI), BC TEL, Bell Canada (Bell),
Island Telecom Inc. (Island Tel), Maritime Tel & Tel Limited,
The New Brunswick Telephone Company, Limited (NBTel) (now NBTel Inc.),
NewTel Communications Inc. and Northwestel Inc. The Commission directed
these telephone companies to issue tariff pages implementing the
Commission's determinations in Decision 95-13.
In addition, the Commission directed TELUS Communications (Edmonton) Inc.
(TCEI) (formerly Edmonton Communications Inc.) to provide any reasons why
its support structure rates should not be the same as those established
in Decision 95-13 for the
other telephone companies. Similarly, the Commission directed MTS NetCom
Inc. (MTS) (now MTS Communications Inc.), Québec-Téléphone and
Télébec ltée (Télébec) to provide any reasons why the rates, terms
and conditions established in Decision 95-13
should not apply to their support structure services. |
2. |
The Commission directed these telephone
companies to issue revised tariff pages rather than file proposed tariff
pages with the Commission for approval. TCI, unlike the other telephone
companies, did not have tariffs setting out rates, terms and conditions
for support structure services. TCI filed proposed tariff pages and a
Support Structure Agreement (SSA) to which the Commission granted interim
approval. |
3. |
TCEI filed proposed tariff pages under Tariff
Notice (TN) 15, for the stated purpose of implementing the rates, and
terms and conditions set out in Decision 95-13,
to which the Commission granted interim approval. |
4. |
Subsequent to the telephone companies'
issuance of revised tariff pages, the Commission invited comment on them
from parties registered to the proceeding leading to Decision 95-13.
At the end of this proceeding, the Commission issued Order 96-1484
on 18 December 1996. In the order, the Commission ordered specific
changes to the tariffs where they contained anomalies or terms and
conditions that did not conform to the Commission's directions in
Decision 95-13. Pursuant
to the order, MTS filed TN 244
on 17 January 1997. |
5. |
Decision 95-13
required Québec-Téléphone and Télébec to provide reasons why they
should not be subject to all the terms and conditions, including rates,
established in that decision. Both Québec-Téléphone and Télébec
submitted that the determinations in Decision 95-13
should not apply in their territories. Both companies generally submitted
that because of the large and rural nature of their operating
territories, the requirements of Decision 95-13
would place an undue burden on their accounting and billing systems, and
that the rates set out in Decision 95-13
would, if implemented, have a negative effect on their revenues. In
support of its position, Télébec filed a comprehensive economic study
on 28 June 1996. |
6. |
In Order 96-1484,
the Commission found that the monthly pole rate of $0.80, mandated in
Decision 95-13, would
exceed the causal costs identified by Télébec. The Commission found
that neither Québec-Téléphone nor Télébec had demonstrated that
Decision 95-13 should not
apply to them or that the implementation of Decision 95-13,
in those territories, would result in an acceptable revenue impact. The
Commission determined that the rates, terms and conditions established in
Decision 95-13 should
apply to both Québec-Téléphone and Télébec. In addition, the
Commission determined that TCEI's approach of charging for pedestals and
lamp standards bases was not justified. Subsequently, when TCEI filed TN
44 in which such charges were eliminated, the Commission granted final
approval. |
7. |
Order 96-1484
prescribed a consultative process between Stentor, on behalf of the
telephone companies as per paragraph 1, and Télébec,
Québec-Téléphone and TCEI (collectively the telephone companies), and
the CTA and the CCTA on behalf of cable company users of support
structures. The process had been requested by the cable companies to
arrive at uniform wording for tariffs nation-wide. The Commission stated
its support for uniform tariffs and agreements for support structures the
telephone companies provide and ordered the telephone companies to
participate in the consultations. The Commission also directed the
telephone companies to file within 120 days of the order, serving a copy
on all interested parties, a Joint Report of those who
participated in the negotiations referred to in paragraph 12 of the
order, identifying the following: |
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(a) the participants in the negotiations; |
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(b) a general description of the process
followed by the participants to reach an understanding; |
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(c) the points on which all participants have
agreed; |
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(d) the points on which agreement was not
reached; |
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(e) a summary of the position of each
participant with respect to the points which have not been agreed upon;
and |
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(f) an indication of whether an agreement
would likely be achieved on most points which have not been agreed upon,
if more time was available to negotiate and if so, how much more time
would be required to reach such an agreement. |
8. |
The telephone companies filed the Joint
Report on 17 April 1997. Subsequent to this, the telephone
companies, under Stentor Tariff Notice 485,
filed a national tariff and support structures agreement (SSA) on
4 June 1997 to give effect to the results of the consultations. On
the same date, under TN 926,
TCI filed its proposed tariff and SSA for the same purpose. |
9. |
Also filed were TCI TNs 926/A,
TCEI TNs 55
and 55A
and Québec-Téléphone TN 170.
All contained proposed tariffs and SSAs very similar to Stentor TN 485's
tariff and SSA. |
10. |
Pursuant to Order 96-1484,
Télébec filed tariff pages under TNs 126/A.
The Commission granted interim approval. |
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Joint Report
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11. |
The telephone companies that participated in
the Joint Report, included the former Stentor members (excluding
Saskatchewan Telecommunications), TCI, TCEI, Québec-Téléphone and
Télébec. Also participating were the CCTA and the CTA. |
12. |
The telephone companies developed a model
tariff, a model SSA, and a model support structures operations guide
(SSOG) as the bases for negotiation and provided these to the CCTA and
the CTA on 24 January 1997. After an exchange of comments, the
telephone companies revised the model tariff and SSA to take account of a
number of comments that the CCTA and the CTA had provided. |
13. |
On 27 February 1997, the CCTA wrote to
the Commission requesting the future attendance of a Commission observer
at meetings. The basis for the CCTA's request was that the telephone
companies and the CCTA/CTA were quite far apart on their approaches to
support structures, and the CCTA felt that the presence of a Commission
observer could be helpful. With the agreement of parties, a member of
Commission staff did attend meetings to assist with issues such as
process and background. |
14. |
In filing the Joint Report, the
telephone companies stated that it included consultations and parties'
positions on the model tariff and SSA up to and including the last
meeting before the report was filed on 17 April. |
15. |
The telephone companies, TCI and
Québec-Téléphone stated that their tariff filings reflected the
consultation processes completed by the Joint Report. They stated
that the tariff filings had been revised beyond the telephone companies'
and TCI's positions in the Joint Report to reflect consultations
at the meeting of 6 May 1997. |
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Considerations of further process
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16. |
Subsequent to the filing of the proposed
tariffs and SSAs, a number of parties suggested that approval of these
would be premature without any opportunity to comment. The Commission is
of the view that, given the number and extent of proceedings on support
structures since 1992, in tandem with the Joint Report, the record
is sufficient to reach conclusions on the outstanding issues. |
17. |
The positions of parties narrated in this
order are those originally taken with regard to the model tariff and the
model SSA updated to reflect changes in positions arising from the
negotiations described above. |
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Conclusions
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18. |
The Commission approves the proposed tariff
and SSA filed under Stentor TN 485
subject to the amendments as set out below. All other proposed tariff
provisions and SSA sections not specifically amended or denied by the
Commission, as set out below, are approved as filed. |
19. |
The Commission directs that tariff pages and
SSA pages be issued within 30 days, revised in accordance with the
Commission's prescribed changes. The Commission approves TCI TNs 926
and 926A,
TCEI TNs 55
and 55A
and Québec-Téléphone TN 170
with the requirement that revised tariff pages be issued within 30 days,
revised strictly in accordance with what the Commission has approved and
prescribed pursuant to this order. |
20. |
The Commission directs that Télébec issue
tariff and SSA pages, within 30 days, that are in accordance with
Decision 95-13, as amended
by Order 96-1484 and this order. |
21. |
The Commission approves the following TNs for
withdrawal of support structure tariffs effective coincident with the
date at which the tariff pages issued pursuant to this order will come
into effect:
Bell TN 6022
BC TEL TN 3637
NBTel TN 647
MTS TN 278 |
22. |
The Commission approves the proposed tariff
and SSA, amended in accordance with the Commission's prescribed wording
as set out below. In the interest of simplicity, the Commission has
summarized the tariff provisions and SSA sections in this order, except
where the Commission has determined it to be appropriate to reproduce the
proposed wording in full. |
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National Services Tariff Item 901.2 – Definitions:
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Conduit |
23. |
The proposed definition excludes manholes,
central office vaults, or other access points or conduit entering the
central office vault. The CCTA argued it should include connecting to and
going through a central office (CO) to maximize efficiency of cable
routing. |
24. |
The Commission considers that with the CCTA's
approach, the CO vault's efficiency could be adversely affected and
therefore, it does not accept the CCTA's proposal. |
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Manhole |
25. |
This is an underground chamber providing
access to conduit, excluding CO vaults. The CCTA wants to include CO
vaults in the manhole definition to permit a licensee's cable to transit
a CO vault. As outlined in paragraph 24, the Commission considers that
with the CCTA's approach, the CO vault's efficiency could be adversely
affected. |
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Duly authorized representative |
26. |
This definition provides that a company will
deem a licensee's employee, agent, (etc.) who signs, consents, or
authorizes on the licensee's behalf to have been authorized by the
licensee. |
27. |
The CCTA said that this definition should be
deleted because the companies can rely on contract common law to
establish who binds a licensee. In the CCTA's view, the companies should
not be able to deem who is authorized by the licensee. The companies
answered that, if the licensee wants expeditious authorization, the
companies must be able to rely on the representations of the licensee's
personnel. |
28. |
In the Commission's view, the proposed
definition eliminates confusion, allowing authorization to proceed
faster. If it is left to common law, there is a greater likelihood that
the companies will refrain from recognizing a licensee's representative
until a person clearly authorized by the licensee binds the licensee, in
each case. |
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Spare capacity |
29. |
Spare capacity is the difference between
unused capacity and the capacity the company needs to meet anticipated
future service requirements. |
30. |
Unused capacity is the difference between: |
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(a) support structure capacity based on design
limitations; and |
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(b) the sum of capacity used by the company to
meet current company needs, and capacity currently allocated to
licensee(s). |
31. |
The CCTA stated that letting the companies
reserve capacity for themselves for future use amounts to priority access
and would be discriminatory in a competitive market. The companies would
have no incentive to manage support structures efficiently. Potential
licensees would have to build their own support structures, however,
municipalities might not let them, given disruption, etc. The CTA stated
that such priority access for the telephone companies, and the
consequence to availability of spare capacity, are not appropriate in the
current competitive context. The CTA added that the Commission's
contention as set out in Decision 95-13,
that minimizing the number of support structures is in the public
interest, further erodes support for the companies' priority access. |
32. |
The companies stated that the definition
reflects the Commission's conclusions in previous decisions that a
company is permitted priority access to meet its current and anticipated
future service requirements. Access by others has been costed and rated
on this basis. |
33. |
The Commission notes that in Decision 95-13,
and in Order 96-1484, the companies'
right to priority access is recognized to include reserving capacity for
anticipated future requirements. The Commission notes, however, the
CCTA's and the CTA's points particularly with respect to changed
competitive circumstances since 1995. The Commission's finding in favour
of minimizing the number of support structures is also crucial.
Furthermore, the Commission notes that there have been competitive
disputes concerning support structures access, and the legitimacy of
claims of lack of spare capacity. Where disputes arise over whether spare
capacity is available, therefore, the Commission may place the onus on
the companies to justify their current and anticipated requirements,
where they state they have no spare capacity on any particular support
structures. |
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Support structures |
34. |
They are defined as the supporting structures
(but excluding CO vaults and controlled environmental vaults) which a
company owns or has the right to grant permits for. |
35. |
The CCTA said that this should change to
include CO vaults so a licensee's cable may transit the CO in a conduit
arrangement. |
36. |
The Commission considers that costing and
rating of support structures was established based on the current
definition. There is no evidence that CO vaults were considered when the
Commission reached its findings with regard to costs and rates.
Therefore, changing the definition to include CO vaults in the definition
is beyond the scope of this proceeding. |
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Terms and conditions of service
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37. |
National Services Tariff Item 901.3(a)
states that the licensee must enter into a SSA with the company, the form
of which has been approved by the Commission and together with this
tariff item govern the terms of the support structure service. Where
there is conflict with the SSA, the tariff prevails unless the SSA
specifically says otherwise. In this regard, the tariff provides as
follows: |
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"Except where otherwise specifically provided in [the SSA],
should there be any contradiction, conflict or variance between the
provisions of [the SSA] and the provisions of this Tariff item, the
provisions of this Tariff item shall prevail."
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38. |
The CCTA said that where there is conflict,
the tariff should always prevail, as it is the primary statement of terms
and conditions of service. CCTA stated that the SSA can still prevail
over the companies' Terms of Service as appropriate, e.g., regarding
termination of service. |
39. |
The Commission agrees with the CCTA that
National Services Tariff Item 901 which covers support structures,
together with the SSA, constitute the terms and conditions of support
structure service. The Commission also notes that the companies' Terms of
Service are part of their general tariffs. For the sake of clarity, the
Commission is of the view that 901.3(a) should be changed to indicate
that where the general tariff, including the Terms of Service, conflicts
with the specific tariff item or the SSA, the specific terms and
conditions of support structure service will prevail. |
40. |
The Commission prescribes eliminating the
sentence that commences, "Except where otherwise specifically
provided in the SSA…" and replacing it with: "The tariff item
on support structures shall prevail in all cases where it conflicts
directly with the SSA. Where the General Tariff including the Terms of
Service, conflicts directly with the specific tariff item on support
structures or the SSA, the aforementioned tariff item or the SSA as
applicable, shall prevail." |
41. |
National Services Tariff Item 901.3(c)
provides that the licensee may not assign, sublease, sublet or otherwise
transfer its support structure access to third parties without the
companies' prior written consent, which may not be unreasonably withheld. |
42. |
The CCTA and the CTA were concerned that such
wording is broad enough to include "condominium" facilities
arrangements as assignments. They proposed additional wording saying,
effectively, that these tariff restrictions will not prevent the licensee
from sharing its facilities with a third party by permitting the third
party some form of ownership interest in the licensee's facilities placed
on a company's support structures, as long as the licensee remains
responsible for the right of access to the support structures bearing
these facilities. The companies noted the Commission's findings that
prohibit a support structure user's transfer of rights of access to the
support structures because the right could limit orderly access to spare
capacity. The companies agreed that licensees may provide services to
third parties using the licensee's own facilities. But the companies said
that allowing transfer of facilities ownership or "some forms of
ownership" to third parties could draw them into licensee/third
party disputes over the support structures bearing the facilities for
which ownership has been transferred. |
43. |
The Commission notes that in Order 96-1484
the Commission found against "a right in favour of support structure
users to sub-let, sub-license, or otherwise transfer access to support
structures…." However, the Commission considers that as long as
the licensee remains clearly responsible for a third party's compliance
with the terms and conditions of support structures access, the
licensee's sharing of ownership of its attached facilities should not
result in the involvement of the companies in licensee/third-party
disputes. Accordingly, the Commission directs that the following be added
to the proposed item: |
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The licensee may share ownership of its facilities with a third
party. In all such cases, the licensee remains fully responsible for
compliance with the rates, terms and conditions of support structures
access as if it remained sole owner of the facilities for which it
shares an ownership interest.
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44. |
National Services Tariff Item 901.3(d)
provides that the companies always have priority access to support
structures to meet current and anticipated future service requirements. |
45. |
The CCTA requested deletion of this provision.
In a competitive environment, the companies should not be entitled to
priority access to support structures. Further, access issues are covered
in the definition of spare capacity. The Commission disagrees with the
CCTA. As noted in its findings on the item on spare capacity, where
disputes arise, the Commission will require the companies to objectively
justify their current and anticipated future requirements. |
46. |
National Services Tariff Item 901.3(e)
indicates that licensees using or applying for access to support
structures must possess the required authorizations from all authorities
having jurisdiction and must give a company documentary evidence on
request. |
47. |
The CCTA submitted that a licensee could
suffer disadvantage if an authority claims jurisdiction that the company
itself does not accept. The association advocated that the licensee is
responsible for obtaining authorizations validly required by governmental
authorities having jurisdiction over matters affecting access to and use
of support structures by the licensee. |
48. |
The Commission considers that use of the term
"validly" could give rise to disputes on the meaning of the
term. Further, the Commission is of the view that it is appropriate for a
licensee to ensure that it obtains authorizations to protect the support
structures owner from legal risk. |
49. |
National Services Tariff Item 901.3(f)
provides that the licensee must obtain and maintain any rights-of-way or
consents that the SSA specifies regarding the licensee's facilities and
provide written evidence of these at the company's request. |
50. |
The CCTA argued that such issues are between
the property owner and the licensee wishing to be present on the
property. The company should not be involved except where it can grant
the access to a right-of-way, whereupon it should be obliged to do so. |
51. |
Noting that the company owns support
structures and is thereby obliged to discharge related obligations, the
Commission is of the view that the company is entitled to be able to
assure itself that it is protected regarding its relationships with
property owners and public authorities. Further, in the Commission's
view, a licensee's obligation to provide written evidence on a company's
request is not unduly onerous. |
52. |
National Services Tariff Item 901.3(g)
provides that nothing within the tariff item limits, restricts or
prohibits the company from honouring existing or entering into future
joint-use or joint ownership agreements regarding support structures used
or offered under this tariff item and the SSA. |
53. |
The CCTA found this acceptable with the
proviso that such agreements would not prejudice a licensee's rights
after it has been given access to support structures. |
54. |
The companies submitted that the Commission
encourages joint use and joint ownership. Where these are used, the
companies try to protect their own and the licensee's facilities but they
should not have to incur costs to guarantee the licensee's facilities. |
55. |
The Commission is of the view that the
licensee's rights to access, once granted, should be protected within
reason, particularly where a company enters into such an agreement after
granting rights to a licensee. However, where a company is forced by a
property owner to move support structures, it should not have to bear the
costs of moving licensees' facilities. The Commission directs the
addition to this item of the following: |
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… provided that the existing rights of a licensee shall not be
prejudiced by a joint-use or joint-ownership agreement entered into by
the company after the licensee has been granted access to support
structures. The one exception to this provision is a circumstance in
which the company is forced to move a support structure by a property
owner, in which case a licensee must move its facilities at its own
expense.
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56. |
National Services Tariff Items 901.3(h),
(i) and (j) provide as follows: |
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(h) The company sets and enforces its
construction standards based on safety and technical requirements for
support structures it owns or controls provided that the standards do not
unreasonably impede a licensee's or joint user's access. |
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(i) The licensee's types of facilities using
support structures must conform to the standards and requirements
specified in the construction standards requirements as modified or
replaced by the company from time to time. |
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(j) Licensee-owned conduit connecting to
company support structures must conform to Construction Standards
requirements. The licensee may establish conduit connections only to
access its facilities that are on company support structures. |
57. |
The CCTA said that the restriction on conduit
connections should be dropped because it is overly restrictive. |
58. |
Stating that these provisions are needed to
protect support structures and all users' personnel and facilities, the
companies submitted that these conform with the Commission's finding in
Decision 95-13 with
respect to construction standards. |
59. |
The Commission agrees that these items conform
to Decision 95-13's
findings as to the company's right to set and enforce construction safety
and technical standards that do not unreasonably impede access by cable
companies and other telecommunications carriers. |
60. |
National Services Tariff Item 901.3(l)
provides as follows: |
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On-going inspections for conformance with the
terms and conditions of support structure service will be conducted by
the company at its own cost. When non-conformance with the terms and
conditions of Support Structure Service is found, the company will notify
the Licensee of the defects and charge the Licensee based on the expense
incurred for the inspection. The Licensee will correct such defects
within a maximum of thirty (30) calendar days, unless otherwise specified
by the company. The Licensee will notify the company within seven (7)
calendar days of the defect being corrected. After the specified
notification period expires, the company may re-inspect the Licensee's
Facilities and, if the defects have not been corrected to the company's
reasonable satisfaction, the company may have such defects corrected or
may remove the Licensee's Facilities and terminate any associated Permit
for the affected Facilities. Charges based on expense incurred will
apply. |
61. |
The Commission considers that the support
structure owners' right regarding construction standards permits the
companies to take measures to ensure that support structure users are
complying with such standards, and with terms and conditions set out in
approved tariffs. |
62. |
As far as the time limit aspect is concerned,
the Commission notes that National Services Tariff Item 901.3(n) provides
for a prior notice period of at least 180 days if the company plans to
abandon or remove support structures that a licensee is using. Further,
the licensee has the first 90 days to decide whether to buy the support
structure. Thus, the licensee has at least 90 days, after deciding not to
buy the support structure, to complete the work it must do. The
Commission is of the view that there is no reason why the company should
not give the licensee a minimum of 90 days to perform the work in this
case as well. |
63. |
The Commission is of the view that certain
proposed measures are too extreme; namely, those that permit the company
the discretion to decide whether to correct a defect at a licensee's
expense or to disconnect the licensee's facilities altogether from the
company's support structures. The Commission finds it appropriate that
when a company re-inspects a licensee's facilities and finds that defects
have not been corrected to its reasonable satisfaction, the company be
entitled to correct the defects itself and charge in accordance with the
tariff item. However, the company should not have the discretion to
disconnect the licensee's facilities from the support structures in
question. |
64. |
The Commission directs that this item be
amended as follows: |
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(a) replace "The Licensee will correct
such defects within a maximum of thirty (30) calendar days, unless
otherwise specified by the company" with " The Licensee will
correct such defects within a time period specified by the company, to be
no less than 90 days following written notification of the licensee of
the defects"; and |
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(b) include, after the words "or may
remove the Licensee's Facilities and terminate any associated Permit for
the affected Facilities," the words "provided that the Licensee
has given written notice that it prefers removal to correction." |
65. |
Services Tariff Item 901.3(n) provides
as follows: |
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If the company decides to remove or abandon
any Support Structures used by a Licensee(s), the company shall give the
Licensee at least one hundred and eighty (180) days prior notice. Where
the company has the authority to do so, it shall, at the same time,
notify the Licensee(s) that such Support Structures may be purchased at
fair market value. The Licensee(s) shall have the first ninety
(90) days of the notice period to decide whether to purchase such
Support Structures. |
66. |
The CCTA commented that: |
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(a) a company should give two years prior
notice of removal except where a third party requires abandonment and
reduces prior notice; |
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(b) the pricing basis of support structures
should be pre-determined and referenced in the tariff; |
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(c) where a third party requires support
structure removal, the licensee should have right to challenge the third
party's legal right to require removal, and the company should take
reasonable steps to facilitate the challenge; |
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(d) where the company is reimbursed by a third
party requiring the removal of the structures, it should reimburse the
licensee for the relocation of its facilities; |
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(e) the company should notify the licensee of
a third party's relocation request within one week of receipt; otherwise
the company should be responsible for all costs that the licensee incurs
for relocation of its facilities; |
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(f) where neither the licensee nor anyone else
buys the support structure, the licensee will remove its facilities
within the notice period and tell the company when removal is complete; |
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(g) where the licensee fails to remove its
facilities, the company can impose a charge based on work performed and
charged at the company's tariff rate; and |
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(h) the company should give the licensee
details of work performed, including time spent and applicable hourly
(tariff) rates. |
67. |
The companies commented that pricing at fair
market value is appropriate and that the third-party issue is not
relevant as this item addresses only situations that the company
initiates itself. The companies argued that, as a matter of principle,
where a licensee thinks a third party should reimburse it, the licensee,
and not the company should go after the third party. |
68. |
In the proposed tariff item, the prior notice
period is at least 180 days. The Commission notes that in Re:
Notification of Network Changes, Terminal-to-Network Interface,
Disclosure Requirement and Procedures for the Negotiation and Filing of
Service Arrangements, Telecom Letter Decision CRTC 94-11 (Letter
Decision 94-11), the Commission required that a telephone company give
prior notice of network changes at the time it decides to proceed or six
months (180 days) before the change, whichever is earlier. In the
Commission's view, the same approach is reasonable in this case. |
69. |
With regard to pricing, the Commission is of
the view that fair market value is appropriate. The Commission notes that
it is open to any party not satisfied with the proposed fair market value
price to bring it before the Commission. The commission considers that
the CCTA's proposal regarding company reimbursement to a licensee would
impose an onerous a burden on the company. The Commission agrees with the
companies that, if a licensee considers that a third party should
reimburse it, the licensee should pursue the matter directly. |
70. |
The Commission directs that the first sentence
be amended as follows: |
|
If the company decides to remove or abandon
any support structures used by a licensee(s), the company shall give the
licensee prior notice at the time that the company decides to proceed or
at least 180 days before the event whichever is the earlier date. |
71. |
National Services Tariff Item 901.3(o)
provides: |
|
Where work on support structures is needed for
service restoration, the company and the licensee agree to work jointly
to restore their respective services. Where they cannot restore services
jointly, they will identify their priority services and agree to a
restoration sequence. If they cannot agree, the company has priority. |
72. |
The CCTA wanted priority given to fibre optic
cable as it has more capacity than coaxial or copper plant. The
companies' view is that priority should be based on traffic type, not
facility type. The Commission considers that priority of restoration of
services should be based upon traffic type rather than facility type. |
|
Access approval requirements
|
73. |
National Services Tariff Item 901.4(a)
provides: |
|
The licensee must apply for each use of, or connections to, support
structures for additions, rearrangements, transfers, replacements and
removals of the licensee's facilities on or in the company's support
structures for which rental provided in tariff and/or which affects
consumption of support structure capacity. No applications are
needed for routine maintenance that does not affect location on/in or
capacity of support structures. Each application will be considered
first come first served, without undue preference, based on the receipt
date by the company.
|
74. |
The same tariff item states that the company's
response times for approval or denial of applications will be: |
|
(a) within 15 days for 20 or less poles or five or fewer manholes.
|
|
(b) within 30 days for 20 to 49 poles or 5 to 14 manholes.
|
|
(c) determined based on the specifics of an application
· exceeding quantities above;
· for support structures in remote areas;
· affected by unusual conditions.
|
75. |
The CCTA said that the tariff should include a
number of changes including the following: |
|
(a) require an application only where there will be a new rental
charge or the addition of a second strand to a pole;
|
|
(b) impose time limits on the companies to process applications;
|
|
(c) require two scenarios for time limits applicable to the
company's application processing:
· the customer has done search work, or
· the company must do search work;
|
|
(d) require deemed approval of an application not processed within
required time period to prevent anti-competitive delays.
|
76. |
According to the companies, the application
process forces the licensee to identify any use of, or connection to, the
company support structure, thus enabling the company to manage remaining
capacity. This approach ensures that no unauthorized attachments are made
and provides all licensees with fair and equitable access. |
77. |
The Commission does not agree with the CCTA's
view that would require an application only when there was a new charge
or a second strand. The onus is on the support structures owner to manage
the structures for itself and other users. In the Commission's view, the
company must be aware of rearrangements, etc., through the application
process since rearrangements may affect capacity. Finally, applications
will be considered on a first-come first-served basis based on the date
of an application's receipt by the company. |
78. |
With respect to the proposed deemed approval
where the application is not processed within the required time period,
the Commission notes that there may be several potential causes for
delays. Where a company is the cause of the delay in processing the
application within the required time, this may constitute a violation of
the terms of the tariff. In appropriate circumstances, a licensee may
seek corrective measures by applying to the Commission. |
79. |
National Services Tariff Item 901.4(c)
specifies the engineering documentation the licensee must provide, on a
company's request, for aerial structures: two sets of plant drawings, to
scale, with proposed additions, etc.; and for underground structures: two
sets of plans showing proposed routes. |
80. |
The CCTA asked that plans be proportional
rather than to scale. The companies noted they have been to scale for
many years. The Commission sees no reason that this should not continue. |
81. |
National Services Tariff Item 901.4(d)
specifies that the licensee shall pay a search charge whether an
application is accepted or rejected by the company due to lack of spare
capacity or withdrawn by the licensee. |
82. |
The CCTA submitted that in their 1994
submission filed pursuant to Telecom Public Notice CRTC 93-50 (PN 93-50),
the companies listed a number of administrative activities associated
with access to support structures to be covered by the support structure
rental charge. The CCTA submitted that, in light of this, no
search charges are needed except where a field search is needed. The CCTA
said the item should be reworded to specify that a search charge applies
only where a company must do a field search for spare capacity; a company
will do a field search only where the licensee has not provided the
needed information as part of its application; and the search charge will
be based on actual field search work done and charged at tariff rates. |
83. |
The companies stated that they incur costs for
searches done regardless of the application's outcome. They stated that
Order 96-1484 specifies: |
|
The monthly rates for access to telephone company support structures
established in Decision 95-13
are not inclusive of any related non-recurring administrative,
application or processing fees.
|
84. |
The Commission notes that the list of
activities filed by the companies pursuant to PN 93-50, referred to by
the CCTA, was submitted in the context of the companies' proposed costing
formula that the Commission rejected. The Commission agrees with the
companies that Order 96-1484 stated
clearly that monthly rates do not include non-recurring application fees.
The Commission is of the view that companies should recover costs for
searches associated with all applications, whether approved or denied. |
85. |
National Services Tariff Item 901.4(h)
provides: |
|
The Licensee is permitted to construct,
remove, maintain and operate its Facilities on, in or in proximity to the
company's Support Structures, using the Licensee's own labour force or
any person, firm, partnership or corporation (hereinafter
"contractor"), subject to the terms and conditions contained in
this Tariff item, the SSA and the Construction Standards. The Licensee
shall provide the name and the type of work function to be performed by
each contractor. |
|
The Licensee shall provide the company with a
list of contractors who are to carry out work under this Tariff item, on
the Licensee's behalf. Within fifteen (15) calendar days of receiving
such list, the company may notify the Licensee that a contractor on the
list is unacceptable based on the company's reasonable objective
assessment. All remaining contractors on the list may perform work on the
Licensee's behalf, without further approval, until such time as the
company gives the Licensee fifteen (15) calendar days notice that a
contractor on the list is unacceptable. |
86. |
In Order 96-1484,
the Commission stated that the licensee's prior notification to the
company is appropriate. In that order, the Commission also stated that a
requirement for prior approval by a company would not be appropriate. In
the Commission's view, the companies' proposed provision for disallowing
a labour force based on "reasonable, objective assessment"
amounts to a form of prior approval. Therefore the Commission directs the
companies to eliminate the second paragraph except for the first sentence
of that paragraph. |
87. |
National Services Tariff Item 901.4(i)
provides: |
|
In the event that a Licensee wishes to use a contractor not on the
list, the Licensee must notify the company in writing, at least twenty
(20) calendar days in advance of such contractor commencing work.
Within fifteen (15) calendar days of receiving such notice, the company
may, based on its reasonable assessment, notify the Licensee that the
contractor is unacceptable and the work cannot be performed on that
basis.
|
88. |
For the reasons outlined above, the Commission
directs that the second sentence be eliminated from the proposed item. |
89. |
National Services Tariff Item 901.4(l)
provides: |
|
A Licensee has 60 days from receipt of a permit to start work
pursuant to the permit. Failure results in revoking of the permit. If
the Licensee cannot reasonably start within the 60 days it may ask in
writing for an extension before the 60 days deadline. The basis for
extension must be beyond the Licensee's control. Both parties must
agree on the length of the extension. If the Licensee does not start
installation of facilities within the extension period the permit is
deemed to be revoked.
|
90. |
The CCTA argued that failure to start work
should matter only if there is no more spare capacity on the support
structure and there is a third party requiring access. The Commission
disagrees with the CCTA that, in effect, the applicant should not be
subject to a deadline to start facilities installation until or unless a
third party has filed an application. In such an event, applicants could
habitually refrain from starting work indefinitely until third parties
filed applications. This could have the effect of adding uncertainty to
the process for third party applicants, and would allow a further 60 days
to cover the extension to the original applicant following notification
of the third party application. |
91. |
National Services Tariff Item 901.4(m)
provides: |
|
The company does not guarantee that any Conduit assigned in the
Permit is in good condition and unobstructed. The company will
determine who will perform all work on such Conduit. All work and
material required to make such Conduit useable by the Licensee will be
at the Licensee's expense. The Licensee is also responsible for any
backfilling, repaving, and restoration of landscaping, curb, gutter and
sidewalk expenses.
|
92. |
According to the CCTA, the licensee should be
responsible for make-ready work, but not structural restoration as the
licensee is charged for this in the rate it pays. The companies said that
the sole purpose of this provision is to make the conduit useable for the
licensee. The approved support structure rates do not cover costs to make
conduit useable. |
93. |
The Commission notes the companies' point that
rates do not cover restoration costs. Further, the Commission notes that
each company is obliged to provide support structures at rates that are
not market-based. Accordingly, the Commission's view is that the licensee
should bear the expense. However, the Commission is of the view that the
licensee should be able to determine who does the work. The Commission
directs that the first and second sentences in 901.4(m) be changed as
follows: |
|
Where work is required to restore a conduit, assigned in a permit,
to a useable condition, the licensee may determine who will do the
work, subject to the requirements of other related terms and conditions
of the tariff on support structure service. The licensee will advise
the company of work completion within 10 days. The company will have 20
days from the date of this notice to inspect and advise the licensee of
any further work required.
|
94. |
National Services Tariff Item 901.4(p)
provides as follows: |
|
When the Licensee is unable to attach the subscriber drop wire in
compliance with the Construction Standards, the Licensee must ask the
company to do make-ready work. On completion, Licensee will be told and
can proceed to attach.
|
95. |
The CCTA argued that the licensee should be
allowed to do the make-ready work or ask the company to do it at the
licensee's expense in accordance with tariff charges. The Commission
notes that, pursuant to proposed National Services Tariff Item
901.5(a)(4), make-ready charges would be based on costs incurred and,
where applicable, using hourly rates in the company tariff, for materials
used and work performed. The Commission notes that the companies, other
than BC TEL, are prepared to evaluate specific proposals from the
associations regarding performance by licensees of make-ready work. The
Commission directs the addition of the following: |
|
In individual cases, with the mutual agreement of the company and
the licensee, the licensee may perform make-ready work at its own
expense.
|
96. |
National Services Tariff Item 901.4(q)
provides as follows: |
|
The company may inspect the work performed by the Licensee, its
contractors and agents. Notice of any defect found while the licensee's
work is underway will be transmitted to the Licensee who shall have the
defect corrected within the time period specified by the company.
|
|
After the specified time period expires, the company may re-inspect
the Licensee's facilities and, if the defects have not been corrected,
have such defects corrected, or remove the Licensee's facilities and
terminate the permit for the Licensee's facilities. Charges based on
expense incurred will apply.
|
97. |
The CCTA complained of the company setting
arbitrary time intervals for remedial work. The Commission, in National
Services Tariff Item 901.3(l), has prescribed wording to give greater
certainty. The Commission is of the view that this item also should be
more definitive. The Commission directs that the words "within the
time period specified by the company" be replaced with "within
a time period specified by the company, to be no less than 90 days
following written notification of the defects of the licensee". |
98. |
The Commission considers the proposed company
discretion concerning defect correction or facilities removal to be too
liberal. The Commission directs, after the words "or remove the
Licensee's Facilities and terminate the Permit for the Licensee's
facilities" insertion of the words "provided that the Licensee
has given written notice that it prefers removal to correction". |
|
National Services Tariff Item 901.5 – Rates and charges
|
99. |
(a) Non-recurring charges |
|
(1) Unauthorized attachment |
|
An unauthorized attachment charge shall apply
where a Licensee has installed a Facility, on or in Support Structures,
for which a Permit has not previously been issued. Where the company has
acquired ownership of a Support Structure to which the Licensee has an
existing attachment and for which a written authorization was obtained
from the previous owner, the unauthorized attachment charge does not
apply, however, a monthly rental will be assessed from the effective date
of the change of ownership. The unauthorized attachment non-recurring
charge does not apply, and the company will issue a Permit, where the
attachment complies with the applicable Construction Standards and where
the Licensee can substantiate to the reasonable satisfaction of the
company that a monthly rental has been applied with respect to such
attachment or where the Licensee can substantiate to the reasonable
satisfaction of the company that the company has approved the attachment
of the Licensee's Facility but has not issued a Permit. |
|
Unauthorized Attachment per
rental unit ……………………..$100.00
|
100. |
The charge does not apply where: |
|
· The company acquires ownership to a support structure that the
licensee has attached to and has a written authorization from the
previous owner for attachment, the monthly rental charge will apply
from the effective date of ownership change.
|
|
· The licensee complies with construction standards, and can
reasonably satisfy the company that the Licensee has been paying a
monthly rental charge or that the company approved the attachment but
did not issue a permit.
|
101. |
As an exception, where the licensee applies
within 180 calendar days of the effective date of this item regarding
unauthorized attachments that the company has not identified, the company
will charge a $25 non-recurring fee and charge rent as of the effective
date of this tariff item. Attachment will be subject to the tariff, SSA
and construction standards. |
102. |
The CCTA wanted the $25 charge that Bell
currently applies extended to all companies in place of the proposed
$100. The Commission notes that the other companies have other, higher
charges, most or all of which were designed for the respective
environments in which those companies operate. A national rating
structure must be a compromise that takes account of the differing
environments. Furthermore, in view of the companies' 180 days/$25
provision, the Commission notes that the $100 charge is largely
avoidable. |
103. |
The Commission notes, however, that the model
tariff provided an exception for subscriber drop wires. For the same
reasons given under 901.5(b)(1), the Commission considers that this
exception should apply and directs that the first sentence be as follows: |
|
An unauthorized attachment charge shall apply where a Licensee has
installed a Facility, except a subscriber drop wire, on or in Support
Structures, for which a Permit has not previously been issued.
|
|
(2) Late notification charge |
104. |
A $50 charge per day applies after the 30th
day prior to the assignment date of the SSA for which the company has not
received notification of assignment and/or change of billing name or
address. |
105. |
The CCTA argued that this should be deleted as
neither Decision 95-13 nor
Order 96-1484 provide a basis for it.
In the Commission's view, this provision should be denied, as it is not
required. The Commission considers that section 12.5 of the SSA as
amended is sufficient to protect a company's interests, and rejects this
provision. |
|
(3) Search charge |
106. |
This charge is based on expense incurred and
uses tariffed hourly rates, where appropriate. It applies for all work to
determine availability of spare capacity, estimate make-ready charges and
process applicable documentation. The company will send the licensee
estimated search charges when the licensee asks, or the company
determines it to be necessary. |
107. |
The CCTA said that the charge should apply
only for costs incurred in a field search, and that field search is
required only when the licensee has not provided the necessary
information. The CCTA, in its comments on proposed National Services
Tariff Item 901.4(d), suggested the licensee should be able to do a field
search and that the company should do it and charge for it only when the
licensee has not done it. |
108. |
The Commission notes that its conclusions on
901.4(d) point out that there are a number of activities associated with
the search charge for which a company should be entitled to recover. As
for the issue of who does a field search, the Commission agrees with the
companies that they must take responsibility for errors that will affect
other users, directly or indirectly, therefore, a company should do the
field search. |
|
(4) Make-ready charge |
109. |
A charge, based on the expense incurred and
where applicable using hourly labour rates specified in the company's
tariff, applies to any material used and any work performed on, in, or in
proximity to, the company's support structures or on the company's or
joint-user's facilities. These include, but are not limited to, any
additional investment or advance planned investment or reinforcement
required, in order to meet the licensee's requirements for support
structure service. |
110. |
The CCTA stated that rates and costs should be
fully tariffed. For make-ready work needed to make spare capacity
available, the licensee should have the option of doing the work at its
expense, in accordance with safety and technical standards or asking the
company to do the work. Where the company does the work, it should charge
tariffed labour rates, plus material costs with no mark-up and give the
licensee details of work done including time spent and hourly rates used,
materials used, and material cost. |
111. |
The companies noted that each company owns the
support structures and is responsible for ensuring their integrity for
its own and the licensees' use. The company will have to deal with
complaints and outages, and bear the costs of fixing troubles, however
caused. Therefore, the companies should be permitted to do all work on
their own support structures. However, the companies, other than BC TEL,
stated that they would be prepared to evaluate specific proposals from
the associations regarding performance by licensees of make-ready work. |
112. |
In light of the above, the Commission
prescribes addition of the following: |
|
In individual cases, with the mutual agreement of the company and
the licensee, the licensee may perform make-ready work at its own
expense.
|
113. |
In addition, the Commission is of the view
that where the company does the work, its recovery of costs, as set out
in the proposed item, is consistent with the Commission finding in
Decision 95-13. Charges
based on costs incurred continue to apply where a telephone company
constructs or reinforces support structures for the use of a customer. |
|
(5) Inspection charge |
114. |
An inspection charge, based on expense
incurred and tariffed hourly rates, as applicable, is to be applied for
inspection of licensee's facilities to ensure their installation complies
with the permit and the Construction Standards. The charge is not applied
if the inspection does not start within 60 days of the licensee's
notification to the company of construction completion. |
115. |
The CCTA said that this item should be changed
to state that the charge applies for an inspection where there was a
breach of safety and technical standards. The companies' view was that
there must be inspections to ensure licensee's attachment methods do not
compromise the integrity of the support structure. |
116. |
The item provides for inspections following
the installation of facilities on support structures. The Commission
considers that this is appropriate. |
|
(b) Monthly rates
|
117. |
The charge applies to each pole, either owned
by the company or on which it is entitled to allow placement of the
licensee's facilities as follows: |
|
(a) for all of the Licensee's Strands attached to such pole;
|
|
(b) when (a) is not applicable, for all of the company's Strands
supported by such pole, which Strands the Licensee uses; and
|
|
(c) when (a) and (b) are not applicable, for all other of the
Licensee's Facilities attached to such pole.
|
|
For greater certainty there shall be only one
pole rental unit charged per Licensee for each pole in any circumstance. |
118. |
In Order 96-1484,
the Commission directed the telephone companies to issue tariff pages
containing, among other things, the following: |
|
"(c) when (a) and (b) are not applicable, for all other of the
customers' facilities except subscriber drop wires, attached to such
pole."
|
119. |
The Commission notes also that the companies'
model tariff, which served as a basis for discussion that led to the Joint
Report, included the phrase "except subscriber drop wires". |
120. |
The Commission prescribes the insertion of
"except subscriber drop wires" after the word
"facilities" in paragraph (c). |
121. |
National Services Tariff Item 901.5(b)
paragraph (2) provides that: |
|
The Strand charge is for each strand span or portion thereof for
placement of licensee's cable having a maximum outer diameter of 30.5
mm attached to the strand.
|
|
Monthly Strand Rental unit rate:
|
|
(as set $0.20 (per
out in 30 metres
Decision or equivalent)
95-13)
|
|
MTS
$0.24 per
equivalent 36 metres
|
|
Bell
$0.24 per
equivalent 36.6 metres
|
|
NBTel $0.24
per
equivalent 36.6 metres
|
122. |
The CCTA stated that there was confusion in
the past on how to apply the rate. It requested the insertion of a
reference to an explanatory diagram to be inserted in the SSA. The
companies said that detail provided pursuant to Commission direction is
sufficient. |
123. |
The Commission directs that a diagram be
included in the SSA. Further, for greater certainty, the Commission notes
that insertion of an element, such as a splice or an amplifier, into a
cable on a strand does not convert that strand into multiple strands. |
|
Conduit on private property
|
124. |
A licensee, wanting to use a privately owned
underground support structure designed by BC TEL in consultation with the
owner and installed to accommodate BC TEL's and licensee's facilities,
must apply using SSA outlined procedures (i.e., obtain a permit), and BC
TEL will bill to a maximum of 50% of its engineering expense in providing
the underground structure. No monthly rental applies and the appropriate
engineering expense will be the only charge. |
125. |
The CCTA suggested that no permit should be
required for a structure owned by a third party. In the Commission's
view, the permit requirement is an appropriate measure to ensure
compliance with the terms and conditions of the support structure service
such that BC TEL's and the third party's facilities are protected. |
|
Support structure license agreement
|
126. |
Section 1.4 provides: |
|
Except where otherwise specifically provided in this Agreement,
should there be any contradiction, conflict or variance between the
provisions of this Agreement and the Tariff, the provisions of the
Tariff shall prevail.
|
127. |
The CCTA said that the tariff should always
prevail. Also, CCTA's view was that the SSA should say that the Terms of
Service apply to support structure service except in cases where there is
direct conflict with provisions of support structure service terms and
conditions in which case the latter should apply. The companies stated
that there are SSA provisions that could depart from the Terms of Service
or from provisions in other tariffs. |
128. |
The Commission directs that this provision be
amended consistent with the changes prescribed for tariff item 901.3(a)
above and, accordingly, that the sentence commencing with: "Except
where otherwise specifically provided in this Agreement…" be
replaced with: |
|
This tariff item on support structures shall prevail where it
conflicts directly with the SSA. Where the General Tariff including the
Terms of Service, conflicts directly with the specific tariff item on
support structures or the SSA, the aforementioned tariff item or the
SSA, as applicable, shall prevail.
|
|
Scope
|
129. |
Section 2.2 states that the company
will give the licensee use of the support structure where there is spare
capacity except where such use will unduly interfere with any joint
user's or other licensee's rights. The company will always have priority
access to meet current and anticipated future service requirements. |
130. |
The CCTA stated that priority access rights
are not consistent with a competitive market. |
131. |
The Commission disposed of this issue in
National Services Tariff Item 901.2 on the spare capacity definition. The
Commission reiterates that in dispute situations, the companies must be
prepared to objectively justify their current and anticipated future
service requirements. |
132. |
Section 2.3 states that the licensee's
use of support structure is subject to the telephone company's approval
of the licensee's application; this approval requires availability of
spare capacity, of the licensee's proposed support structure use
conforming to the SSA, the tariff and construction standards. The company
issues a permit which is effective when it receives the licensee's
written acceptance of costs, terms and conditions specified in the
permit. |
133. |
The CCTA stated that the SSA should specify
the form of the application, which should be an attachment to the SSA. It
stated that the SSA should specify when the permit is effective and the
requirements when it is denied. Further, the permit should be effective
when the telephone company has given the licensee written notice that
make-ready work is completed or when the licensee accepts the permit
(assuming no made-ready work is needed or the licensee is doing
make-ready work itself). |
134. |
The companies said that the process described
is consistent with existing procedures. |
135. |
The Commission notes that National Services
Tariff Item 901.4 specifies the conditions for approval of access to
support structures including conditions under which a permit is issued.
The Commission is of the view that, as long as the application form and
the information requested in it is consistent with the terms and
conditions of the requirements of the tariff and the SSA, as approved by
the Commission, this is sufficient. |
136. |
Section 2.5 states that when
installing, maintaining or removing its facilities, the licensee must
refrain from damaging, rearranging, relocating or removing support
structures, the telephone company's facilities or other parties'
facilities in accordance with technical standards, and safety
requirements in the construction standards. |
137. |
The CCTA stated that the licensee should be
permitted to rearrange another licensee's facilities with the latter's
consent, which should not be unreasonably withheld. In the Commission's
view, permitting a licensee to rearrange another licensee's facilities,
even with the latter's permission, would not be in the general interest
of users, or of the owner of the support structures. In the event that a
licensee damages another company's facilities in rearranging them, there
could be confusion in establishing which party should bear the
responsibility for repair. The Commission considers therefore that a
licensee should be able to rearrange, relocate or install only its own
facilities. |
138. |
Section 2.7 provides: |
|
The Licensee shall, at its sole cost and expense, be responsible to
install, maintain, rearrange, replace, repair, remove or transfer
Licensee's Facilities or perform any other work, all to meet the
company's requirements within the time period specified by the company
or specified by a third party (e.g., government authority, Joint-User)
who is exercising its rights. After notice to the Licensee that the
Licensee is to perform work under the terms and conditions of this
Agreement, the Tariff and/or the Construction Standards and after the
Licensee's failure to do so within the time period specified, the
company may perform such work and the Licensee shall pay to the company
all expenses incurred by the company in performing such work.
|
139. |
The CCTA maintained that this provision grants
the company and others excessive discretion. The Commission notes that
National Services Tariff Item 901.3(n) provides for a prior notice period
of at least 180 days if the company plans to abandon or remove support
structures that a licensee is using. Furthermore, the licensee has the
first 90 days to decide whether to buy the support structure. Thus, the
licensee has at least 90 days, after deciding not to buy the support
structure, to complete the work it must do. The Commission considers that
section 2.7 of the SSA, as proposed, gives the company too much
discretion. The Commission is of the view that the company should give
the licensee a minimum of 90 days to perform the work. |
140. |
The Commission considers that this time period
could be superseded by any time limit specified by a government authority
having the jurisdiction to impose a shorter time period. In such
circumstances, the company should notify the licensee of the time period
imposed by the government authority. |
141. |
The Commission directs the addition to
"within a time period specified by the company or specified by a
third party (e.g. government authority, Joint-User) who is exercising its
rights" of the words "to be no less than 90 days where the
decision lies with the company". |
142. |
The CCTA proposed the addition of a provision
in section 2.8 to state that construction standards would apply to all
users including telephone companies. In the CCTA's view, if a telephone
company installs its facilities in a particular manner, the licensees
should be able to comply with the same standards. In the CCTA's view, no
licensee should be required to comply with a standard the telephone
company doesn't follow. |
143. |
Pursuant to Decision 95-13,
licensees using the support structures are required to comply with the
companies' construction standards, provided that they are based on safety
and technical requirements and do not unreasonably impede access by other
telecommunications carriers and cable television undertakings. In the
Commission's view, if the construction standards are an appropriate
standard to which licensees should be held, then it is reasonable that
the companies be made subject to these same standards in respect of their
own use of support structures. Assuming that the construction standards
are in accord with the Commission's directives in Decision 95-13,
there is no reason to expect that these requirements would be
unreasonable. Accordingly, the Commission directs that 2.8 be added to
the SSA as follows: |
|
Both the licensee and the company shall comply with the construction
standards as defined in the tariff. The licensee shall not be required
to comply with any construction standard that the company itself does
not follow.
|
|
Taxes
|
144. |
Section 3.2 states that where taxes are
levied on the company's property solely because of the licensee's use of
it, the licensee shall pay the company the tax amount within seven days
of receiving from the telephone company a copy of the tax bill or other
writing showing the tax amount and showing that the taxes are solely
based on the licensee's use. The company will then pay under protest. The
company's failure to pay does not eliminate its right to payment from the
licensee. The licensee may negotiate with or bring legal action against
the taxing authority for cancellation or reduction. On receipt of any
refund, the company will pay it and any interest to the licensee, less
expenses the company has reasonably incurred. |
145. |
The CCTA stated that the Commission takes
account of company taxes payable in setting rates so this provision
should be deleted. Where a company has to pay taxes that may be directly
attributed to licensees, the company may apply to the Commission for a
rate change. |
146. |
The companies stated it is impractical and
costly for a company to submit rate changes for specific taxes in
different jurisdictions. Companies should not be responsible for
collecting taxes from licensees absent statutory authority. |
147. |
The Commission notes that Decision 95-13
contains no provision for setting rates to cover taxes that are the
subject of this provision and established uniform national rates, with
the support of at least some CCTA members. The Commission is of the view
that providing for rate changes to reflect variances in taxes from one
jurisdiction to another would militate against maintaining national
rates. |
|
Item 4 – Statutes, rules and regulations
|
148. |
Section 4.1 states that the licensee is
responsible for obtaining all licenses, permits, etc. from public
authorities and for complying with all public authorities' laws, rules,
etc., in using support structures or other company property. |
149. |
Section 4.2 states that where a
licensee does not comply with section 4.1 or otherwise causes company,
joint user or other licensee loss of easements, etc., the licensee must
indemnify or save harmless the company, joint user etc. from claims and
shall pay related expenses. Where there is a dispute on whether loss,
cost, etc. has been incurred, the licensee must pay the company until the
issue has been settled pursuant to section 11 or pursuant to a court's or
regulatory authority's judgement. |
150. |
The CCTA asked the Commission to delete
section 4.1, stating that it is covered in tariff provision 901.3(e). The
CCTA maintained that, as proposed, section 4.1 would put the company in a
position of interpreting and enforcing a range of laws by denying access
to support structures pursuant to section 4.2. The CCTA argued that
section 6 of the SSA, which covers liability and indemnification, is
sufficient to deal with these circumstances. |
151. |
The companies argued that it is reasonable to
require the licensee to get and maintain permits etc. and abide by laws;
it is also reasonable to have such provisions in section 4, which covers
compliance with the law, to confirm licensee's obligation to ensure that
it complies with the law. Also, the licensee should assume consequences
of failure to comply with public authorities' requirements. Where a
licensee considers a law not to be valid, it should seek appropriate
legal remedies. For these reasons, the companies argued sections 4.1 and
4.2 should stay. |
152. |
Regarding section 4.1, the Commission is of
the view that tariff provision 901.3(e) merely points out that the
licensee must hold, and so demonstrate to the company, all required
authorizations. SSA section 4.1 contains much more detail regarding the
licensee's responsibility for compliance with laws, rules, etc. In the
Commission's view, therefore, tariff provision 901.3(e) is not
substitutable for SSA section 4.1. Regarding section 4.2, the Commission
notes that the CCTA did not explain its objection to the substance. The
Commission notes that the item deals with the licensee's requirement to
indemnify or save harmless strictly with respect to the licensee's acts
or omissions. In the Commission's view, it in no way conflicts with SSA
section 6. |
153. |
Section 4.3 states that the licensee is
to obtain and maintain at its own cost, rights-of-way, consents, etc.,
that it needs and is to give the company written evidence on the
company's request. Where the company's rights-of-way etc. let it grant a
licensee rights to place facilities on support structures, the company,
at the licensee's cost, will get these rights and provide written
evidence on the licensee's reasonable request, provided that the rights
are only for licensee facilities for which the company has issued a
permit after this SSA has come into effect. |
154. |
In the CCTA's view, the provision should be
deleted, given that rights-of-way and consents are covered in National
Services Tariff Item 901.3(f). The licensee should not have to give the
company written evidence, as this places the company in a position of
determining the adequacy of permission. Rights-of-way, etc. should be
between the property owner and the licensee only. |
155. |
The companies said that they, as owners, must
deal with complaints from property owners and public authorities with
respect to the licensee's lack of proper authorization to use a company's
support structures; thus permits and rights-of-way are not just between
the licensee and the property owner. |
156. |
As noted in its discussion of National
Services Tariff Item 901.3(f), the Commission is of the view that the
company, as support structure owner, is entitled to ensure that it is
protected with respect to third parties, public authorities, etc. As for
whether this section should be deleted in view of the existence of
National Services Tariff Item 901.3(f), the Commission notes that this
section covers the issue in greater detail and accordingly, should
remain. |
157. |
Section 4.4 states that the company
does not guarantee that support structures are on property to which the
company holds an irrevocable easement, right-of-way, etc. Where a
property owner forces the company to move support structures, the
licensee must remove facilities promptly at its own expense. |
158. |
The CCTA requested deletion of this provision.
It said that forced relocation of facilities is covered in National
Services Tariff Item 901.3(n). However, there should be a provision
requiring both parties negotiating future rights-of-way to make all
reasonable efforts to ensure third parties ability to use support
structures on such rights-of-way. |
159. |
The companies disagreed and contended they
should not be under a contractual obligation to ensure third-party
access. The phrase "all reasonable efforts to acquire rights-of-way
to permit third parties to use" is vague and there could be
differences of opinion among the companies, licensees and other
customers. Companies cannot know what additional rights-of-way might be
needed to accommodate undetermined third parties to meet unknown
requirements with no certainty whether and when costs incurred would be
recovered. |
160. |
The Commission notes that National Services
Tariff Item 901.3(n) sets out the processes that the company will follow
in the event that it abandons support structures. Section 4.4 of the SSA
points out that the company does not guarantee that its easements,
rights-of-way etc. are irrevocable. The Commission is of the view that
there should be a cross-reference to National Services Tariff
Item 901.3(n). With regard to the last sentence, the Commission
directs that "the Licensee shall promptly remove its Facilities…"
be replaced with "the Licensee shall remove its Facilities in
accordance with the provisions of National Services Tariff Item 901.3(n)…". |
|
Performance of work on, in or in proximity to support structures
|
161. |
Section 5.1 of the Support structure
license agreement states that a company employee, agent, etc. can
stop the licensee's operations on or near support structures if the
licensee doesn't have the necessary approvals, permits etc. or if, in the
company employee's sole discretion, the licensee's operations endanger
support structures or attached facilities. The licensee (or contractor or
agent) is to stop work when notified directly or by telephone. The
company will provide written confirmation at its earliest convenience.
Where there is a dispute over a 5.1 company finding, the licensee will
stop all work until the dispute is settled through the dispute resolution
procedure set out in SSA section 11. |
162. |
The CCTA argued that 5.1 and 5.2 are
inappropriate. The tariff requires the licensee to comply with safety and
technical standards. The CCTA submits that company employees should not
have the proposed powers. When inspecting, the company will find any
breaches of standards. Where permits are absent, the company can rely on
the dispute resolution process pursuant to section 11 of the SSA or apply
to the Commission or the courts. |
163. |
The companies noted that the companies own the
structures; they will have to deal with third party complaints on damages
or on breaches of permits. In their view, therefore, these provisions are
appropriate. |
164. |
The Commission considers that the companies
must be able to protect other users of support structures. The Commission
is of the view, however, that section 5.1, as proposed, would give the
companies too much discretion. In substance, this provision is similar to
those relating to inspections. The Commission concludes that where there
is no permit or other approval, or where a company employee is of the
view that the licensee may be endangering others' facilities, the
provisions under National Services Tariff Item 901.4(q) should apply. |
165. |
The Commission directs that the proposed
wording of section 5.1 be replaced with the following: |
|
Where a company employee, agent or representative determines that a
licensee does not have the required permit, license, consent, approval
or authorization to perform work, the licensee is required to apply for
a permit, license, consent or approval, pursuant to the applicable
tariff provisions and in addition, shall be liable for the payment of
an unauthorized attachment charge pursuant to National Services Tariff
Item 901.5(a)(1).
|
|
In the event that a company employee, agent, or representative
believes that support structures or any attached facilities are being
exposed to hazardous conditions as a result of the licensee's work
operations, the company may inspect the work, order that it be stopped
immediately, and take action pursuant to National Services Tariff Item
901.4(q).
|
166. |
The Commission directs that the proposed
wording of section 5.2 be replaced with the following: |
|
In the event of a dispute between the company and the licensee with
respect to a determination by the company pursuant to section 5.1 of
this agreement, the dispute may be resolved in accordance with the
procedure specified in section 11 of this agreement.
|
167. |
Section 5.3 states that the licensee
shall ensure that its employee, contractor or agent doing work on, in or
near support structures knows and meets the licensee's responsibilities
as specified in the tariff, the SSA and the construction standards. The
licensee is responsible for the employee's, contractor's and agent's
conduct regarding the licensee's obligations pursuant to the tariff, the
SSA and the construction standards. |
168. |
The CCTA submits that as the tariff requires
licensee compliance with the construction standards and covers the
licensee's use of contractors, section 5.3 is not needed. The companies
submitted that, as the licensee may use contractors to work on or near
support structures, this confirmation of obligations is appropriate. |
169. |
The Commission agrees with the CCTA, however,
and it is also of the view that Item 5.3 does not conflict with the other
two documents and has the value of making very clear the fact that the
licensee bears full responsibility for its employees', contractors' and
agents' conduct. |
|
Liability
|
170. |
Section 6.1 notes that without
restricting the generality of the company's general tariff, except where
the claim, loss, liability, etc., arises from the company's gross
negligence or wilful act, the licensee shall: |
171. |
(a) be liable to the company and its personnel
(including contractors, agents, etc.); and |
|
(b) indemnify etc. the company and its
personnel from claims and damages etc. the company incurs in connection
with: |
|
(i) losses, delays, etc. in company provided service or service
provided by any authorized user of support structures to any person
because of placement etc. or use of licensee's facilities or equipment,
in or on the support structures;
|
|
(ii) interruption etc. of the licensee's service to its customers
caused by the company under the SSA or the tariff or from any use of
support structures, use of the licensee's facilities or equipment in or
on the support structures or use on misuse of support structures by the
licensee;
|
|
(iii) licensee caused damages or physical injury to the company, the
personnel or any other person;
|
|
(iv) licensee's failure to abide by SSA, tariff, permit, or law.
|
172. |
The CCTA said the proposed one-way liability
and indemnification provisions are not appropriate in a competitive
environment. Support structure service differs from other
telecommunications services – it requires the company and the licensee
to share physical space so that there is the risk that each can damage
the other's equipment. The CCTA, therefore, proposes reciprocal
obligations. |
173. |
The companies argued that this licensee
liability is akin to the liability of a commercial lessee of real estate
or equipment. The companies should not have to assume greater risks in
providing access to their support structures than other lessees of
equipment and real estate, especially, as the companies are obligated by
Commission directives to provide access to their spare capacity on their
support structures. |
174. |
The Commission's view is that CCTA's proposed
reciprocal obligations would be inappropriate. The Commission has obliged
the companies to permit access to their support structures by cable
companies and competitive telecommunications providers at rates that are
not market-based to serve public policy objectives. |
|
Insurance |
175. |
7.1 Provides that the licensee shall
carry insurance, at its own costs, to cover all legal liabilities that
the licensee assumes and that relate to operations its contractors and
agents perform under the SSA. The company is added as co-insured under
the licensee's policies. |
|
7.2 Minimum insurance must be $2
million in aggregate for any one accident or occurrence. |
|
7.3 Notwithstanding termination of the
SSA, all insurance is in force as long as the licensee has a facility on
or in the companies support structures, except a facility that the
company requires to be abandoned in place, such as conduit connections. |
|
7.4 The licensee's insurance company
must be licensed per applicable provincial and/or federal law. The
licensee must give the company insurance certificates stating the
insurance company: |
|
· has insured the licensee, its contractors and agents against
liability under the SSA;
|
|
· will not cancel or change the policies without giving the company
30-calendar days prior written notice.
|
|
7.5 The company is not responsible for
insuring the licensee's facilities or equipment against loss or damage. |
176. |
The CCTA proposed wording to change the thrust
of these sections to conform to the changes in section 6. The proposed
wording would allow licensees to avoid giving the company the insurance
certificates until the company requests them in writing. The CCTA
proposed a minimum coverage of $1 million rather than $2 million. |
177. |
The Commission is of the view that the company
should not have to request insurance certificates in writing to have them
submitted. The company, as owner of the support structure, is entitled to
have proof of insurance. With regard to minimum coverage, the companies
stated that their insurers recommend a $2 million minimum. The CCTA
proposed $1 million but did not provide any support to indicate whether
this would be sufficient for the purposes at issue. In the Commission's
view, the companies' proposed $2 million should stand. |
|
Termination of agreement and permits
|
178. |
9.1 Notwithstanding any other
provisions of this agreement or the tariff, the company is entitled to
terminate at its option a permit and/or the SSA with 60 days prior
written notice where a licensee fails to: |
|
(a) pay any amounts pursuant to the tariff or the SSA; or
|
|
(b) comply with any terms and conditions of the tariff or the SSA;
|
|
as long as the licensee has been given written
notice of such failure and has had 60 days to pay or comply and has not
paid or complied. |
179. |
The CCTA said the opening wording is not
appropriate because the tariff should prevail where it conflicts with the
SSA. No other SSA provisions appear to conflict with 9.1; and 9.1 would
override the company's tariffed terms of service. |
180. |
The Commission notes that in section 1.4 of
the SSA as amended by the Commission, the tariff item on support
structures always prevails over the SSA in the event of conflict. The
CCTA suggests that there are no other sections of the SSA that conflict
with this item. In the Commission's view, the corrective measures found
in the tariff item should continue to apply. The Commission is of the
view, therefore, that the wording should be "Notwithstanding any
other provisions of this agreement, and subject to the provisions of
National Services Tariff Item 901,…". |
181. |
The CCTA submitted that "fails to pay any
amounts …" should be replaced by "fails to pay any undisputed
amounts…". The Commission notes that the companies' proposed
provision provides for amounts due "under the Tariff or this
Agreement" which suggests that the amounts are not open to question.
However, the Commission is also of the view that to adopt the CCTA
wording, "failure to pay undisputed amounts" could be an
invitation to automatic dispute. |
182. |
The Commission is of the view that, where a
licensee has failed to pay an amount the company claims to be owing but
the licensee objects then partial payment, within the period provided, of
50% of what the company claims, is a reasonable compromise to prevent
abrogation. The dispute should then be dealt with under section 11 of the
SSA. |
183. |
In light of the foregoing, the Commission
directs that the following be substituted for the currently proposed
section 9.1: |
|
Notwithstanding any other provision of this agreement, and subject
to the provisions of National Services Tariff Item 901, the company
shall be entitled, to terminate any permit and/or this agreement upon
60 calendar days written notice to the licensee:
|
|
(a) where the licensee fails to pay any undisputed amounts due and
owing to the company under the tariff or this agreement;
|
|
(b) fails to pay 50% of the disputed amount claimed by the company;
or
|
|
(c) where the licensee fails to comply with any of the terms and
conditions of the tariff or this agreement;
|
|
always provided that the licensee shall have been given written
notice of such failure to pay or to comply and a period of sixty (60)
calendar days within which to cure such failure to pay or to comply,
and that such deficiency shall remain unremedied at the expiration of
such sixty (60) day period.
|
184. |
Section 9.2 provides that
notwithstanding any other provisions of the SSA or the tariff, the
company may terminate the SSA, at its option, immediately upon written
notice, where: |
|
(a) a licensee does not maintain insurance pursuant to section 7;
|
|
(b) it is required by law, court order or regulatory directive;
|
|
(c) a licensee goes bankrupt; or
|
|
(d) a licensee ceases doing business.
|
185. |
The CCTA submitted that it is unreasonable to
terminate immediately because of an insurance policy lapse because it
could be due to clerical error or the bankruptcy of the insurer. The CCTA
proposed there should be a reasonable time period for the licensee to
remedy the situation as follows: |
|
The company may terminate after 14 days written notice for failure
to maintain insurance if a licensee has not taken the necessary
corrective action to comply with section 7.
|
186. |
The companies argued that failure to maintain
insurance is a serious breach; it could expose the company, which owns
support structures, to third-party claims. |
187. |
The Commission considers that insurance must
be maintained to protect the support structure owners from third-party
claims and that the insured, and not the support structure owner, must be
clearly responsible for ensuring the validity of its insurance. |
188. |
The Commission is of the view that the
preamble in section 9.2 should be changed to reflect the substance of the
preamble in section 9.1 as follows: |
|
Notwithstanding any other provision of this agreement, and subject
to the provisions of National Services Tariff Item 901, the company
shall be entitled to terminate any permit and/or this agreement upon
written notice to the licensee:
|
189. |
Section 9.3 notes that notwithstanding
any other provision of the SSA or the tariff, the company, on notice to
the licensee, may terminate forthwith a permit for support structures use
where: |
|
(a) the licensee defaults on complying with 4.1 or 4.3 of the SSA;
|
|
(b) the licensee defaults on complying with construction standards
and fails to correct within the company's specified time period;
|
|
(c) support structures are destroyed from any cause;
|
|
(d) the company will not terminate a permit for support structures
it replaces for maintenance purposes.
|
190. |
The CCTA stated that its comments relating to
section 9.1 should apply. It asked that the Commission delete 9.3(a)
consistent with the CCTA's proposal to delete sections 4.1 and 4.3 since
they are superfluous because the tariff covers the related issues of the
SSA. |
191. |
The CCTA asked the Commission to delete 9.3(b)
as the tariff provides a remedy where the licensee does not comply with
construction standards. Regarding section 9.3(c), the CCTA argued that
the permit should be cancelled only where the company does not intend to
replace the support structures. Further, where replacement will occur, no
rent should be payable until the support structures are replaced. |
192. |
The companies stated that paragraphs (a), (b)
and (c) provide reasonable grounds for cancelling a permit. The companies
argued that a company should not have to assume the costs that the CCTA's
proposal for 9.3(b) would result in. Regarding 9.3(c), they argued that
if a structure were destroyed, the replacement structure might differ, so
a new permit would be required for the new structure. |
193. |
The Commission is of the view that this
provision must be made subject to the provisions of National Services
Tariff Item 901 as prescribed in section 9.1. |
194. |
With regard to section 9.3(a), the Commission
views both sections 4.1 and 4.3 as being far more comprehensive than the
tariff items that the CCTA described. The Commission considers that a
licensee's failure to comply with sections 4.1 and/or 4.3 could put the
company in the position of being in violation of the law. The
Commission's view is that the company should be able to cancel
immediately, as long as the circumstances leading to the cancellation are
not covered by sections of National Services Tariff Item 901. |
195. |
Regarding section 9.3(b), the Commission has
concluded that National Services Tariff Item 901.3(l) should apply. |
196. |
Regarding 9.3(c), the Commission notes the
companies' point that a replacement structure may differ from the
original. In the Commission's view, therefore, the permit need not be
cancelled unless this is the case. |
197. |
The Commission directs that section 9.3 be
reworded as follows: |
|
Notwithstanding any other provisions of this agreement, and subject
to National Services Tariff Item 901, the company may, upon notice to
the licensee, terminate any permit for the use of the company's support
structures in the following circumstances:
|
|
(a) Default on the part of the licensee in complying with section
4.1 or 4.3 of this agreement;
|
|
(b) Default on the part of the licensee in complying with the
construction standards and failure to correct such default;
|
|
(c) Where support structures for which the company has issued a
permit are destroyed from any cause and the company has determined that
the replacement structures must differ from the original; and
|
|
(d) A permit for support structures being replaced for maintenance
purposes shall not be terminated.
|
198. |
Section 9.4 notes that on termination
of the agreement, the licensee has 180 days, or a mutually agreed period
from the termination date of the SSA, to remove its facilities at its own
expense. |
199. |
The CCTA stated that, given the scale of
facilities relocation, 180 days should be changed to 12 months. |
200. |
The companies noted that the 180-day maximum
has been changed to a 180-day minimum, or the licensee may leave its
facilities in place pursuant to section 9.6. On termination of an
agreement, the company should be able to put its support structures to
good use as soon as possible, where possible. |
201. |
The Commission notes the companies' point that
the 180 days had become a minimum period for removal in view of the
reference to mutually agreed additional periods. The Commission notes
however that, where parties fail to agree, the 180 days becomes a minimum
and a maximum. The Commission also notes the CCTA's point that relocation
is more complex than simple removal. Therefore, the Commission is of the
view that both parties envisage a period longer than 180 days as
reasonable. |
202. |
The Commission directs that the words,
"within 180 days" be replaced with "and shall have 180 to
270 calendar days". |
203. |
Section 9.5 notes that on termination
of a permit, the licensee must remove its facilities, at its expense, on
or before the date specified in the notice for permit termination. |
204. |
The CCTA noted that the permit might apply to
a number of support structures. In addition, under section 9.3, the
notice period may be minimal. The CCTA proposed that this provision
states: |
|
On termination of a permit pursuant to sections 9.1 or 9.3, the
licensee has 60 days from the permit's effective date to remove its
facilities.
|
205. |
The companies said that a company may be bound
by other agreements, such as joint use agreements with others, and so be
unable to provide the removal period the CCTA requests. |
206. |
The Commission is of the view that section
9.5, as proposed, would provide a company with too much discretion.
Further, the Commission is of the view that the licensee requires
predictability. In the Commission's view, a 60-day period from the
effective date of the permit cancellation is reasonable and directs that
the words "such removal date to be no less than 60 days following
the termination date of the permit" be added at the end of section
9.5. |
207. |
Section 9.6 notes that where the
licensee fails to remove facilities pursuant to sections 9.4 or 9.5,
facilities' ownership goes to the company at no cost. The company may
remove and/or sell them at the licensee's risk and expense and apply the
net amount of such sale to the licensee's account. On the date of sale or
removal, rentals and charges to the licensee end. |
208. |
The CCTA submitted that there should be no
transfer of ownership of the facilities. The CCTA agreed that a company
may remove the facilities at a licensee's risk and expense according to
the company's tariff rate for support structure work; rentals and charges
cease on expiry of the notice period under section 9.4 or 9.5 of the SSA
as applicable. The companies stated that failure to remove is effective
abandonment. A company should not have to remove and then seek costs from
a licensee that may have ceased doing business. The company should be
able to use the abandoned facilities attached to its support structures
if a use is available. The companies argued that they need this provision
to avoid risk of damage to other facilities from the removal of
facilities at issue; and to be able to remove the facilities efficiently
as and when appropriate. |
209. |
The Commission has prescribed changes to
sections 9.4 and 9.5 to provide the licensee with a minimum time period
for the removal of its facilities. Further, the Commission is of the view
that failure of the licensee to remove facilities within the terms of the
SSA can appropriately be considered abandonment. In such circumstances,
the Commission considers it appropriate that ownership of the facilities
transfer to the owner of the support structures. |
210. |
Section 9.7 provides that: |
|
Notwithstanding section 9.6, where the
Licensee requests in writing that its Facilities remain in place after
termination of the Agreement or of any Permit, and where the company
agrees in writing to such request, or where in the company's reasonable
opinion such Facilities must remain in place, the ownership of such
Facilities will be transferred to the company at a mutually agreed to
date, prior to the effective date of termination of this Agreement or of
any Permit, and at no cost to the company. All liability of the Licensee
accruing after the date of such transfer (other than any liability
accruing after the date of such transfer arising as a result of any act
or omission of Licensee or any failure to comply with the Agreement prior
to termination of the Agreement) under this Agreement and the Tariff,
including payment of any rentals and charges, will cease for such
Facilities. |
211. |
The CCTA suggested deleting the words,
"or where in the company's reasonable opinion such Facilities must
remain in place." The company should not be able to determine
whether a licensee may retain ownership of its own facilities. If a
licensee wants to remove its facilities at its own cost, the company
should not be able to prevent it. |
212. |
The CCTA submitted that there should be no
licensee liability accruing after the ownership transfer date. Once the
company has ownership of the facilities, all licensee liability should
stop. |
213. |
The companies stated that the company, as
owner of the support structures, should be permitted to determine whether
the facilities can be removed. The issue is the potential for damage to
the support structure or other facilities on it. |
214. |
The Commission agrees with the CCTA that the
company should not have the sole discretion to decide whether a licensee
may or may not remove its own facilities. The Commission notes, however,
that there could be cases in which removal could cause damage to support
structures. In that case, the licensee should have the choice of removing
the facilities and paying the company's costs to repair the structures
damaged in consequences or leaving the facilities in place and allowing
ownership to transfer to the company. |
215. |
With regard to the CCTA's contention that a
licensee should not be liable after the transfer date, the Commission is
of the view that liability accruing as a result of any acts, omissions or
failures to comply with the agreement prior to its termination is
properly the licensee's. |
216. |
The Commission prescribes deletion of the
words "or where in the company's reasonable opinion such facilities
must remain in place". |
217. |
Immediately before the final sentence, the
Commission prescribes insertion of the following: |
|
Where the company determines on a reasonable basis that removal of
the licensee's facilities will result in damage to the support
structures, the company shall, at least 30 calendar days prior to
the termination date of the agreement or of any permit, advise the
licensee, in writing, of the company's determination and shall provide
a written estimate of costs to repair the support structures. The
licensee shall then have 10 calendar days to advise the company,
in writing, of whether it intends to remove the facilities and pay
costs to repair the support structures or to transfer ownership of the
facilities.
|
|
Unauthorized presence of licensee's facilities
|
218. |
10.1 Provides that the company shall
apply to a licensee's facilities that are on a support structure without
a permit, without restricting other legal remedies available upon
advising the licensee of the unauthorized attachments, and the licensee
agrees to pay, an unauthorized attachment charge per unit as the tariff
sets out. The company may remove the facilities on 30 days written notice
to the licensee at the licensee's expense. To keep the facilities on the
structure, the licensee must apply within the 30-day notice period. |
|
10.2 Provides that where there is spare
capacity, the company may approve the application as above, as long as
the facilities are correctly installed per tariff, SSA and construction
standards or, if they are not, the licensee agrees to correct defects. |
|
10.3 Provides that where there is no
spare capacity, the company may elect to upgrade the support structure at
licensee's cost. If the licensee does not agree to pay, the company will
not approve the application; licensee must remove the unauthorized
facilities at its own expense within a time period determined by the
company or the company may do so and recover costs from the licensee. |
219. |
The CCTA disagreed with this approach. It
submitted that item 10 should substantively be as follows: |
|
10.1 The company notifies the licensee
of the requirement for a permit for the unauthorized attachments. |
|
10.2 The company may charge pursuant to
the tariff for the unauthorized attachment. The licensee must apply for a
permit within 30 days of the applying of the charge. Where the
application is denied, the company does nothing with regard to the
licensee's facilities without the licensee having the opportunity to
dispute the denial before the Commission. If the Commission approves the
denial or if the licensee fails to apply to the Commission within 30 days
of written notice of the denial, the company may require the licensee to
remove the facilities at the licensee's cost. If the licensee does not,
the company may remove them in accordance with the tariff. |
|
10.3 Where an unauthorized attachment
charge does not apply, the company must issue a permit without requiring
an application. |
|
10.4 Where the company issues a permit
for facilities originally placed without the permit, it may inspect the
facilities in accordance with the tariff. |
220. |
The companies said that this section, as
proposed, deals efficiently with the persisting unauthorized attachment
problem and the provisions are clear and fair. Licensees complying with
the SSA and the tariff in obtaining permits will not suffer unauthorized
attachment charges. |
221. |
Where unauthorized facilities are attached,
the CCTA wants the company to be prevented from removing a licensee's
facilities where an application is denied, pending the completion of a
dispute resolution process that result in a Commission order. The
Commission notes, however, that in sections 10.2 and 10.3, the SSA sets
out clearly the requirements for approval of an application including
what a licensee must do to meet them. The requirements are fully
consistent with Decision 95-13,
the tariffs and the SSA as amended. In the Commission's view, there is no
need to include a provision to provide the licensee an opportunity to
refer a matter to the Commission for dispute resolution. |
222. |
The Commission recognizes that conflicts may
arise. For example, should the company claim that the unauthorized
facilities do not conform to requirements and require the licensee to
correct alleged defects, the licensee may claim that the facilities do
conform to requirements. In such circumstances, the licensee may refer
the dispute to the Commission. As section 10.2 indicates,
approval/denial of an application depends upon whether in fact the
unauthorized facilities comply with requirements, and if they do not,
whether the licensee agrees to correct the defects. In section 10.3, the
companies proposed that where a licensee does not agree to charges for
support structure provision or upgrade, the company might determine the
time period that the licensee has to remove the facilities. The
Commission is of the view that this gives the company inappropriate
discretion and directs that, in 10.3, the words "within a time
period determined by the company" be replaced with words consistent
with section 9.4, namely, "within a period of 180 to 270 calendar
days." |
|
Dispute resolution process |
223. |
Section 11.1 provides that the company
and the licensee will try to resolve a dispute at the level where it
arose, then up through middle and upper management. Absent resolution,
they will establish a joint committee at the request of either. Absent
resolution at that level, either party may refer it to the Commission.
Parties agree to time intervals at each negotiation level. Unless
otherwise agreed the period within which a dispute may be referred to the
Commission will not exceed 30 calendar days from the date of establishing
the joint committee. |
224. |
The CCTA agreed with the proposed dispute
resolution procedure, but proposed that either party be able to refer the
dispute directly to the Commission at any time. |
225. |
The companies acknowledged that the Commission
can hear and dispose of an application regardless of the companies'
proposed mechanism. They suggested that CCTA's wording invites parties to
ignore the mechanism. The proposed mechanism is for addressing
operational day-to-day issues (that have seldom been brought before the
Commission) as well as other matters and it is a resolution method that
does not affect the Commission's ability to intervene. |
226. |
The Commission notes that any procedure agreed
to by the parties cannot abridge the rights of either party in respect of
bringing a matter before the Commission; therefore, with or without the
addition of the CCTA's proposed wording, either party may do as the
CCTA's wording suggests. The companies acknowledged this in their
response. |
|
General conditions
|
227. |
12.1 Survival: Terms and
conditions of the SSA or tariff that apply, extend, or may extend beyond
the termination of the SSA, continue in force except as expressly set out
herein. Notwithstanding anything herein, licensee's liabilities under the
SSA and tariff, including charges, continue until facilities are removed
and the company has accepted the removal. Section 12.1 survives
termination of the SSA with the licensee. |
228. |
The CCTA said that the proposed wording is
unclear. It suggested substitute wording that says the termination of the
agreement does not relieve the licensee of the obligation to pay what it
owes to the company at termination. The companies said that section 12.1
addresses more than obligations for payment of amounts owing; it covers
the full range of obligations that may survive SSA's termination. |
229. |
The Commission considers that the termination
of the agreement does not relieve the licensee of outstanding obligations
and accordingly, adopts the provision as proposed. |
230. |
12.2 No Waiver: Failure of
either party to insist on compliance with SSA or the tariff or standards
and requirements in the construction standards is not a waiver of
any terms, conditions or rights; mere passage of time, or the execution
of revisions, modifications or extensions to the SSA does not affect
other terms, conditions or rights under the SSA unless expressly stated. |
231. |
12.6 Prior Agreements: This
agreement, including the tariff and construction standards, replaces and
cancels all other existing agreements, licences, and contracts between
the parties hereto relating to the installation of the licensee's
facilities on or in the support structures. |
232. |
The CCTA said the passage "or the
execution of revisions, modifications, or extensions to this
Agreement" should be deleted from section 12.2. If the Commission
approves an amendment of the SSA, it could affect other parts of the SSA
and it would be impractical to try to identify every possible effect of
such an amendment. The CCTA proposed references to the tariff and
construction standards be deleted from section 12.6 as superfluous and
misleading. |
233. |
The companies said that the wording is
appropriate. |
234. |
With regard to section 12.2, the Commission
agrees with the CCTA and prescribes deletion of the words "or the
execution of revisions, modifications, or extensions to this
Agreement." With regard to s.12.6, the Commission does not agree
with the CCTA that the references are superfluous. The tariff and the
Construction Standards contain requirements that parties must meet. |
235. |
12.5 Assignment: (a) Provides
that each party may assign the SSA in whole or part. A licensee's
assignment is subject to the company's prior written consent, not to be
unreasonably withheld or delayed. A licensee must give at least 30 days
advance notice in advance of the assignment date. On receipt and consent,
the company will send the licensee the documentation within 30 days. The
licensee will return the executed documents within 30 days of the
effective date of the assignment or change. When consent is denied, the
company will advise, in writing and with reasons, within 30 days of
receipt of the original request. The assignee and assignor, jointly and
generally, agree to pay a charge for each day after the 30th day prior to
the assignment date for which the company has not received notification.
The charge is as the tariff specifies. |
236. |
The CCTA submitted that the 30-day advance
notice should apply to the company too. Further, as neither Decision 95-13
nor Order 96-1484 provide for a late
notification charge, reference to the charge should be deleted. |
237. |
The companies stated that neither Commission
ruling contains a directive applying to the subject matter of section
12.5(a). In the past, late notification of assignments has cost the
companies money in misdirected bills and unpaid charges. Late payment
charges are incentives to licensees to notify the companies of an
assignment; they should cause no trouble to licensees complying with
notification rules on time. |
238. |
The Commission agrees with the CCTA that each
party should give notification of assignment. Further, as the
notification requirement is required for valid assignment, the Commission
is of the view that a charge for late notification is not required. The
Commission directs that the last sentence be deleted. The Commission also
directs that the first sentence be replaced with the following: |
|
This agreement may be assigned, in whole or in part, by either party
upon 30 days written notice, provided that any assignment by the
licensee shall be subject to the company's prior written consent that
shall not be unreasonably withheld.
|
239. |
12.8 Severability: Where
provisions in the SSA or the tariff are declared invalid or
unenforceable, the SSA and the tariff regarding enforceable provisions
and all related rights and remedies survive the declaration. The company
will replace the non-enforceable provision with a valid provision coming
closest to the intention underlying invalid, illegal or unenforceable
provision. |
240. |
The CCTA requested deletion of references to
the tariff, stating that it is beyond the SSA's scope to address possible
consequences if the tariff were found unlawful. |
241. |
12.10 The SSA and permits are governed
by federal law and the law of the province where the support structure is
located. Parties agree that disputes going to any court, tribunal other
than the Commission will go to the court etc. in the province where the
support structure at issue is located. If the support structure is in
more than one province, the company decides which province it will be
heard in. Where the Commission hears a dispute, it shall specify the
manner in which the dispute shall be heard. |
242. |
The CCTA suggested deleting all but the first
sentence. A company should not have exclusive right to choose which
province the dispute shall be heard where the structure is in more than
one. The convenience of both parties should be considered. Also, the law
of a province should be restricted to the structure in that province; it
cannot apply to the structure in another province. |
243. |
The companies said that modifications to this
section provide clarity on disputes before the courts. |
244. |
The Commission considers that the company
should not, by itself, have the choice of what province a dispute shall
be heard in, where support structures at issue are in two or more
provinces. Further, the Commission notes CCTA's point that the law of one
province may not necessarily apply to a support structure in another
province. Accordingly, the Commission directs that these provisions be
deleted from the proposed section 12.10. |
245. |
12.11 Time shall be of the essence in
the SSA and the Tariff. |
246. |
The CCTA proposed deletion of the word
"Tariff" as the SSA cannot impose interpretative conditions in
the tariff. |
247. |
The companies replied that, in sections 12.8
and 12.11, references to the tariff are appropriate as both the tariff
and the SSA define terms and conditions of the service offered. |
248. |
The Commission considers that these
descriptive references to the tariff are useful and approves these as
proposed. |
249. |
13.1 Confidentiality provision: |
|
The company agrees to use information
regarding the Licensee's customers, services, facilities, and current or
future business plans and strategies provided by the Licensee to the
company in the course of the performance by the parties of their
obligations under this Agreement, the Tariff and the Construction
Standards ("Licensee Confidential Information") solely for the
purpose of facilitating the provision of the services contemplated under
this Agreement, the Tariff and the Construction Standards. The company
will hold in confidence Licensee Confidential Information in accordance
with the provisions of the company's Terms of Service. Furthermore, the
company will not use or disseminate or permit dissemination of Licensee
Confidential Information within the company or the member companies of
Stentor Canadian Network Management (or its successors or assigns) or the
company's affiliates and subsidiaries, or Stentor Resource Centre Inc.
(and its successors or assigns) or to anyone else for competitive
purposes. Any Licensee Confidential Information provided by the company
to any such person or entity shall be provided to such person or entity
upon the agreement of such person or entity to protect the
confidentiality of such Licensee Confidential Information to the same
degree that the company protects the confidentiality of Licensee
Confidential Information pursuant to this section 13. |
250. |
Section 13.2 provides that: |
|
The Licensee will hold in confidence
information regarding the company's customers, services, facilities, and
current or future business plans and strategies provided to it by the
company or received by the Licensee in the course of the parties'
performance of their obligations under this Agreement, the Tariff or the
Construction Standards or as a result of the Licensee's use of the
Support Structures ("company Confidential Information"). The
Licensee agrees to use company Confidential Information solely for the
purpose of facilitating performance of the services contemplated in this
Agreement, the Tariff and the Construction Standards. The Licensee will
protect the confidentiality of company Confidential Information to the
same degree that the Licensee protects the confidentiality of its own
confidential information which, in any event, shall not be less than a
reasonable degree of care. Furthermore, the Licensee shall not use or
permit use of company Confidential Information for competitive purposes
nor will, without the prior written consent of the company, it disclose
or permit its disclosure to any third parties except to contractors
authorized pursuant to the Tariff and then, only for the purposes of
facilitating the performance of services contemplated in this Agreement,
the Tariff and the Construction Standards. |
251. |
The CCTA strongly opposed any possibility of
any sharing of a licensee's confidential information with any of the
other companies. The CCTA submitted that there is no need for such
disclosure and that it should not be permitted. The CCTA also submitted
that the level of confidentiality protection of a licensee's information
that a company assumes in section 13.1 should be the same as that which a
licensee assures with respect to a company's information in section 13.2. |
252. |
The CCTA proposed that the second, third and
fourth sentences of s.13.1 be replaced with the following: |
|
The company shall hold in confidence Licensee
Confidential Information in accordance with the company's Terms of
Service and shall protect the confidentiality of Licensee Confidential
Information to the same degree or greater as the company protects the
confidentiality of its own confidential information which, in any event,
shall not be less than a reasonable degree of care. The company shall not
disclose Licensee Confidential Information to any other person, including
any other Canadian carrier or distribution undertaking, except as may be
expressly permitted under this Agreement. Furthermore, the company will
not use or disseminate or permit dissemination of Licensee Confidential
Information within the company or to any other person for competitive
purposes. Any Licensee Confidential Information provided by the company
to any person shall be provided to such person upon the agreement of such
person to protect the confidentiality of such Licensee Confidential
Information to the same degree that the company protects the
confidentiality of Licensee Confidential Information pursuant to this
section 13. |
253. |
The Commission is of the view that the CCTA's
proposed wording would afford a licensee a measure of protection that is
more in line with what the licensee must provide the company. The
Commission directs that section 13.1 be amended by substituting the
second, third and fourth sentences with the CCTA's proposed wording. |
254. |
The CCTA proposed the addition of a section
13.4 which would specify that the obligations in article 13 would not be
subject to limitations of liability. This would ensure that proper care
is taken to protect confidentiality of information and ensure that it was
not used for anti-competitive purposes. |
255. |
The CCTA proposed the following wording for
section 13.4: "Notwithstanding any other provision of this
agreement, the obligations set out in this Article 13 are not subject to
any limitation of liability, whether set out in this agreement, the
tariff, the company's terms of service or otherwise." |
256. |
The Commission is of the view that the
provisions of the tariff and the SSA, as approved, are sufficient to
protect licensees. In the Commission's view, it would not be appropriate
to adjust limitations of liability for the purposes the CCTA set out.
Accordingly, the Commission denies the CCTA's proposed section 13.4. |
|
Secretary General |
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This document is available in alternative
format upon request and may also be viewed at the following Internet site:
http://www.crtc.gc.ca |