TELUS application nothing more ploy for further delay in CDNA proceeding

TELUS Corp. has filed a Part VII requesting the CRTC re-open the competitor digital network access (CDNA) proceeding, arguing that more current evidence can be put on the record. The move has angered many in the industry including Rogers Wireless Inc. (RWI) The following is an edited excerpt of the company’s response to TELUS’ application, submitted on August 30. In its application, Telus Communications Inc. (Telus) has requested the Commission to " …reopen the record of the Competitor Digital Network Access (CDNA) proceeding to update and supplement the factual record prior to the Commission rendering a decision." According to Telus, "…new evidence has surfaced that demonstrates the increasing significance of electric utility telecommunications carriers and others as alternative suppliers in the market." Telus therefore urges the Commission to update the information filed by parties and to solicit information from electrical utility telecommunications carriers "…in order that the Commission has before it the best information available prior to rendering its decision." RWI opposes Telus’ application and urges the Commission to dismiss it. RWI also urges the Commission to press on with rendering a final decision in the PN 2002-4 process as soon as possible. In RWI’s view, Telus’ application constitutes little more than a procedural ploy designed to further delay final implementation of the CDNA services. That service was first promised to competitors in Telecom Decision CRTC 2002-34, Regulatory Framework for the Second Price Cap Period, on May 30, 2002 - some 27 months ago. Now, after a protracted public process, in which the Commission has amassed the best evidence available to it, on the eve of the Commission rendering its final decision, Telus is seeking to reopen the public process based on what it calls "… new evidence that demonstrates the increasing significance of electric utility telecommunications carriers and others as alternative digital network access (DNA) suppliers in the market." The so-called prima facie evidence of a radical change in circumstances, that Telus has purported to present in its application, falls well short of the mark. The application contains little more than Telus’ own extrapolations of certain on-going developments in the Canadian telecommunications industry - all of which are common knowledge and none of which remotely challenge the dominance of the ILECs in the local exchange market or in the provision of DNA services. For example, the electrical utilities, which form the focal point of Telus’ application were known to be providing telecommunications service sin 2003, when the Commission asked its interrogatories to Rogers Cable and other telecommunications carriers, concerning supply conditions in the marketplace. In August of 2003, the Commission made an express determination in Telecom Decision CRTC 2003-52 that more detailed information regarding the supply of DNA services by other non-dominant carriers was not necessary for the Commission’s purposes in the CDNA proceeding. If Telus wished to appeal this ruling by the Commission, it should have done so within a reasonable timeframe by filing a review and vary application in accordance with section 62 of the Telecommunications Act and the Commission’s rules of procedure. However it failed to do so and chose to wait another 12 months to file its current application. Despite Telus’ protestations to the contrary, its August 17, 2004 application is a review and vary application of the Decision 2003-52, since it seeks the same relief that the Commission expressly denied in that decision. Notwithstanding this fact, Telus has failed to satisfy, or even address, the well-known tests for review by the Commission. Moreover, Telus’ application contains no evidence of any dramatic change in circumstances since the summer of 2003, which would justify the Commission reopening this proceeding or reversing its earlier ruling. Indeed, the only hard evidence contained in Telus’ application is derived from the Commission’s own report to the Governor in Council in November 2003 which stated that "Entry in the telecommunications market by utility telcos has been limited, but appears to be increasing" - hardly a change in circumstances. The Commission’s report discloses that in 2002, utility telcos’ revenue totaled $104.5 million, compared with ILEC revenues of $24,280.3 million and total industry revenues of $32,245.6 million. In other words, the utility telcos enjoyed less than one third of one percent of the market. While Telus has sought to extrapolate this small market share into an enormous one, using year-over-year triple digital percentage increases, to create revenues "upwards of 3.3 billion dollars by 2007", this has no relevance to the current proceeding which must be based on market conditions as they exist - not as they might be extrapolated to in the future. The hard numbers do not support Telus’ case and the anecdotal evidence from the other reports cited by Telus do little more than present the utility telcos as very small, but growing, competitors. Certainly they pose no immediate threat to the ILECs overwhelming dominance in the provision of DNA services. RWI can confirm that its own circumstances, and those of Rogers Cable, have not changed significantly in the past year. Furthermore, it was both an expensive and time-consuming process to answer the Commission’s interrogatories in 2002 and 2003 and Telus has revealed no grounds to justify why RWI or its affiliates should have to repeat this process less than a year later. While it is true that the telecommunications market is evolving, it is also true that the Commission has mechanisms in place to keep up with those developments. Its reporting requirements for all carriers, including the electrical utilities that operate as non-dominant carriers, helps to keep the Commission abreast of these developments and provides it with a sound basis for its determination in Telecom Decision 2003-52. In these circumstances, RWI regards Telus’ application as without merit and as an abuse of the Commission’s process. To grant Telus’ application would also threaten the finality of the Commission’s public process since the market is always changing to some degree. This kind of procedural delay plays into the hands of the ILECs like Telus that oppose implementation of the CDNA service.

TELUS application nothing more ploy for further delay in CDNA proceeding

News | 09/09/2004 4:00 am EDT

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