NL Update– Special Edition

Supreme Court grants cable industry leave to appeal pole access decision The Supreme Court of Canada has agreed to hear an appeal from the Canadian Cable Television Association (CCTA) over access to electric utility poles. In a decision released this morning, three justices granted leave to appeal with costs to the applicant. It is not known when the case will be heard, but given the court’s current workload, it’s likely the case will be scheduled for sometime in early 2003. The dispute began with CRTC Decision 99-13, which arbitrated a fight between the CCTA and members of the Municipal Electric Association (now known as the Electricity Distributors Association) over rates for pole access. The utilities appealed and had their complaint upheld by the Federal Court of Appeal (NL, July 30/01). Lori Assheton-Smith, CCTA general counsel, is pleased with the outcome of the leave application and believes the association has a strong case. "We were very concerned that the Federal Court’s interpretation of the Act was problematic and not just for cable but for the entire communications industry," she tells Network Letter. "And I think that the strength of the affidavit evidence before the Supreme Court on the leave application was probably fairly persuasive in showing what the impact of the Federal Court decision would be if it were allowed to stand." The Electricity Distributors Association (EDA) is not fazed by today’s court ruling. Karen Bodirsky, director of public affairs and member relations at the group, tells Network Letter that it will proceed as it did previously. "We continue to maintain the position that we did in lower courts, which was that this is a business transaction between utilities and cable companies and as such we have the ability to set rates as we see fit," she says. The core of the battle is jurisdictional, rather than constitutional. Utility companies are subject to provincial regulation; telecom and broadcast entities are under federal control. The utilities argue that the CRTC is overstepping its boundaries by forcing them to make their poles available to cablecos and telcos. The power companies are also upset about the rates the commission mandated – $15.89 per pole rather than the $40.53 the utilities sought. The utilities had expressed a desire to negotiate a settlement with the cablecos, while at the same time preparing its response against the leave to appeal application. Talks between the two sides are continuing, although the Supreme Court decision may shift the balance slightly in the cable association’s favour. An Ottawa communications lawyer believes this is the first salvo in a continuing fight over access in both the telecommunications and broadcasting sectors. "The introduction of competition was without question the key issue for the CRTC in the 1990s. I believe the key issue for the commission in this decade is the issue of access," Lorne Abugov of Osler Hoskin & Harcourt LLP tells Network Letter. (Abugov is not involved in this proceeding, but does represent Bell West in a similar fight with Calgary’s Enmax Companies for access to their poles.) "On the broadcast side, there are similar issues relating to access to the distribution systems of the cable companies and the satellite DTH providers," he adds. "There we have a different story because with digital there is more capacity than there has historically been." That is immaterial to the EDA’s Bodirsky. "What I’m saying is that it’s a business transaction. If there are other areas that need to be explored, I’m sure the high court will look at that. Our position is that if utilities are supplying a service to cable companies, then they expect to be paid." The CCTA-EDA case is just the onset of a flood of complaints about access issues. Calgary CLEC Suite Systems Inc. has filed a Part VII application with the CRTC seeking access to Enmax poles (NL, July 30/01), and the Ledcor ruling is being appealed by the Federation of Canadian Municipalities (NL, Feb. 12/01). For additional background on this story, see the following editions of Network Letter affiliate publication, Canadian Communications Reports: Nov. 22/01, Oct. 26/01, and Aug. 2/01.

NL Update– Special Edition

News | 05/16/2002 4:00 am EDT

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