Ontario power companies file opposing view on CCTA leave to appeal bid on pole access

A group of Ontario power companies argue that there is no crisis in the cable television business concerning access to electrical utility poles and thus a leave to appeal application to Canada’s highest court by the Canadian Cable Television Association (CCTA) should be denied. The power companies maintain that the Federal Court of Appeal did not err in ruling that the CRTC does not have the jurisdiction to set the rate of access to poles owned by provincially regulated companies (CCR, Oct. 26/01). In response comments filed with the Supreme Court of Canada on the CCTA’s leave to appeal application, the utility companies note that there is "no practical issue of public importance of such significance so as to warrant" the appeal. They contend that with few exceptions, issues of access to power poles are being resolved through negotiation, or by local authorities and regulators, without the intervention of the CRTC. However, in response to the utility companies’ submission, the CCTA argues that disputes are not "rare" or "almost invariably" resolved through negotiation. The association notes that the CRTC found that the 19 Ontario utility companies seeking to block the leave to appeal bid and cablecos had attempted to negotiate a new pole rental rate from early 1996 until June 1998. Moreover, one month after the existing agreements expired, the municipal power companies began to deny access to their support structures, the CCTA says. It also lists a number of other cases that were not resolved through negotiation, including one between UMG and Ontario Hydro in 1997, and one involving Suite Systems Inc., Telus Communications and the Enmax group of companies (CCR, Aug. 15/01). At issue is only the forum in which disputes are resolved and provincial regulatory intervention is and can legitimately be used to deal with any stalemates, the utility companies further state in their submission to the court. "There is no evidence to support the suggestion implicit in the applicant’s submission that provincial regulators will not subscribe to the policy objective of avoiding duplication of support structures and affording telecom companies access at reasonable rates," the submission states. The utility companies also note that in a 2000 Alberta Energy and Utilities Board (AEUB) case, cablecos were awarded a pole tariff by a provincial body that was similar to the one granted in the CRTC case, before it was disallowed by the Federal Court of Appeal’s decision on July 13. The CCTA’s desire for "one stop shopping" at the CRTC is not a matter of public importance, according to the utility companies. "There is no evidence that multi-jurisdictional regulation will be an impediment to the orderly development on the cable industry," they say. They also note that in the United States, telecommunications regulation is accomplished by tribunals at both the federal and state levels. In fact, the utility companies note that many provinces already have legislation in place to deal with cableco use of power poles, and that provinces without such legislation could enact a regulatory scheme if disputes were to arise. The utility companies further state that if pole rates for cablecos were increased, it would merely result in the cost to consumers being "shifted from one pocket to another." The utility companies contend that they are currently subsidizing cable access to the poles through higher fees for electricity or telephone services. Since all cable subscribers are directly, or indirectly, also electricity rate payers and almost all receive telephone services, the costs would simply be shifted to where they belong, the utility companies say. The CRTC had set the annual rate of access to the poles at $15.89 per pole, while the utility companies were seeking a rate of $40.53 (CCR, Aug. 2/01). Even if a rate of $40.53 was granted, the most severe impact of the judgement would be an increase of just 27 cents per month per cable subscriber, the submission notes. The utility companies argue that the Federal Court "applied a number of well accepted tools of statutory interpretation" in ruling that the term "transmission line" in subsection 43(5) of the Telecommunications Act did not authorize the CRTC to regulate provincially regulated power utilities. They contend that the court correctly focused on the meaning of the provision intended by Parliament, considered the literal meaning of the provision, read the phrases in dispute in the context of the provision, considered the objectives of the CRTC, and reviewed the legislative history of the provision. "…(It) strains the credulity to suppose that Parliament intended the word ‘transmission’ be given a difference (sic) meaning when coupled with the word ‘line’ rather than ‘facility’," the utilities submission states. "As noted by the Federal Court of Appeal, it would be more than passing strange for Parliament if it indeed intended to enact such a significant extension of the CRTC’s jurisdiction onto provincial powers, to do so in such an oblique manner and with such ambiguous words." "Contrary to the assertion of the application, nothing in this case will have a vital impact on the achievement of Canada’s telecommunications and broadcasting policy objectives," the submission further states. The utility companies conclude: "The Federal Court of Appeal plainly correct and there is no reason to doubt the correctness of its decision." A panel of three judges will consider both sides’ arguments. If leave to appeal is granted, the actual appeal would proceed sometime in 2002.

Ontario power companies file opposing view on CCTA leave to appeal bid on pole access

News | 11/22/2001 5:00 am EST

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