The CRTC says that its powers aren’t broad enough to issue blanket rulings on municipal access arrangements (MAAs) despite having the jurisdiction to do so. As a result of its decision (Telecom Decision 2003-82) last week, the commission will proceed on a case-by-case basis. On December 4, the regulator finally issued a decision from the proceeding launched by Public Notice 2001-99 in August 2001. The situation arose when AT&T Canada Corp. (now known as Allstream Corp.) filed a Part VII application with the commission asking that the provisions of the Ledcor decision be applied to the MAA the CLEC had with the City of Toronto (NL, July 17/01). When AT&T Canada filed a similar Part VII application in June 2002, seeking to place an MAA with Calgary under the Ledcor ruling, the CRTC deferred a decision until it decided the PN 2001-99 case. Toronto, Calgary and four other major cities joined with the Federation of Canadian Municipalities (FCM) to assert that the CRTC did not have the mandate to intervene in MAAs, since no vital federal undertaking was involved. Toronto added that MAAs are essentially contractual agreements and therefore subject to provincial courts. The regulator rejected those ideas. "In the commission’s view, whether to construct and where to construct transmission lines (a vital part of a telecommunications undertaking) are matters of exclusive federal concern, as are the design of the transmission lines, the material to be incorporated and other similar specifications," Telecom Decision 2003-82 states. "The use of property, such as a municipal highway, for the purposes of a transmission line cannot be divorced from the exclusive federal constitutional jurisdiction over tele-communications undertakings." The decision goes on to state that the CRTC does not have the power to issue broad guidelines that would be applicable to all existing MAAs. Instead, it will consider each on a case-by-case basis. That flabbergasted the chair of the FCM’s telecom committee. Howard Moscoe admitted he had not read the decision but was shocked when told the details by Network Letter. "So that’s insane. The CRTC is going to deal with every municipal right-of-way dispute?" the Toronto city councillor asks.He strongly recommends further action be taken beyond the scope of the commission. "I think that the minister ought to have a look at this one," he adds. "That’s ultimate interference in the contractual arrangements of municipalities." He believes the FCM and the cities have no other option but to launch an appeal of the CRTC ruling. The VP regulatory affairs for the telco that started the fight doesn’t think that the commission will be bogged down with carriers running to it with complaints. "Yes, it’s a possibility but I guess some of it depends on how many agreements are out there," Allstream’s Teresa Muir tells NL.The CRTC was aware of the danger of telcos overburdening it with protests. It put provisions in place to protect the cities. "The commission is prepared to consider applications from Canadian carriers seeking to establish that municipal consent was not obtained on terms acceptable to the carrier," 2003-82 states. "The commission considers that the onus will be on the Canadian carrier applying to the commission to establish that the signed MAA does not represent proof that the Canadian carrier has obtained, on terms acceptable to it, the consent of the municipality to construct a transmission line." The CRTC added that it is aware that telcos may bargain in bad faith, hoping to win concessions from the regulator it could not win in negotiations. It says it will consider all circumstances that led to the signing of the MAA, including intent and the relative bargaining power of each side. That doesn’t placate Moscoe. "This is a contractual arrangement between a municipality and a carrier. They’re interfering with that relationship," he states. "Nobody forced the carrier into entering into that contractual relationship. That means anybody can sign a contract and simply run off to the CRTC and try and get a better contract when they see their competitors have one that’s better than they have." The commission is now prepared to consider the original Part VIIs involving Allstream and Calgary and Toronto. The CLEC has 30 days to file its comments and any amendments. The cities have 30 days from the Allstream filing to submit answers. Allstream may then offer reply comments within 10 days. That strikes Muir as fair. "They’re giving additional opportunity to discuss the facts of Calgary and Toronto and why the agreements entered into at that time should not remain in force," she says. When the CRTC does get around to considering the Allstream-Toronto dispute, it will hear from fewer parties than expected. After then-AT&T Canada filed its Part VII, the commission received notices from the Canadian Cable Television Association, Telus Communications Inc., Bell Canada, GT Group Telecom Services Corp. (now known as LondonConnect Inc.), and Vidéotron Télécom ltée seeking to intervene. Toronto protested, saying its fight with then-AT&T was bilateral. The regulator agreed, ruling that any filings from the CCTA and the telcos "will not add anything of substance to the proceeding." While the city won that battle, it lost another. Toronto and the Halifax Regional Municipality asked for an oral hearing, saying the issues were of national significance. Halifax contended that hearings would permit parties unfamiliar with the CRTC to observe the commission and its approach. The various carriers countered that any proceedings would simply delay the process. The regulator agreed, adding no facts are in dispute and no issues of credibility are at stake. Allstream’s Muir is happy that the commission has re-asserted the two-sided nature of the agreements. "We should eliminate some of this free-for-all activity that every time someone has a bilateral dispute it becomes, according to the municipalities, an issue of national importance," she comments.