CRTC has obligation to consider new evidence in CDNA proceeding, says TELUS

TELUS Corp. says objections to extending the competitor digital network access (CDNA) proceeding now before the CRTC are baseless and rooted more in a desire for convenience than substance, and is urging the commission to re-open the record.The telco argues that the CRTC has an obligation to consider new evidence and up-to-date information pertaining to the proceeding, despite the objections of its competitors (NL, Sept. 1/04). The western-based incumbent telephone company made the comments in response to those submitted by competitive providers on August 30. In its September 3 reply to those objections, TELUS throws back at commission chair Charles Dalfen his own words used at a 2002 conference to demonstrate the regulator’s duty to consider evidence after the submission period has closed. "… And if a material argument or fact comes to the attention of the Commission after all the submissions in a proceeding have been made, we don’t start over. We can consider it, although before doing so we will generally call for comments from interested parties. Our task is to serve the public interest," Dalfen stated at a communications law and policy conference in 2002. TELUS writes in its comments that the information it brought forward in its August application is "material, relevant and highly probative" and should be available to the commission for its consideration prior to ruling on CDNA."The commission should not be swayed by the cries of certain parties that updating existing interrogatories might be inconvenient. Excluding this information will leave the Commission with a distorted view of the supply base and potentially lead to a decision that would be extremely prejudicial to parties, but also to the future of facilities-based competition," the company writes. The battle between incumbents and competitive providers hinges on the availability of alternative supply of DNA facilities, TELUS says. Competitors allege that if there were additional supply from hydro companies or others as the ILEC claims, they would be using it. TELUS says, however, that in the past two years the number of alternative providers of DNA access is greater than previously available, and the commission needs to consider this information before rendering a decision. As part of its Part VII application, TELUS has filed evidence that alternative access providers are making inroads not conceived of by the commission when it began the Telecom Public Notice 2002-4 proceeding (NL, Aug. 27/02). The company cites two studies filed as part of another proceeding as evidence to the increasing role utelcos play in the supply of network access. Mark H. Goldberg and Associates conducted Alternative Suppliers of Digital Network Access Facilities, and IDC compiled Lights out: Canadian Electric Utilities in Telecom Service Markets, 2003. TELUS adds comments made by a coalition of hydro companies in other proceedings where the utelcos boast about their market potential in providing access and services. Competitive providers have rejected TELUS’ arguments, saying its application is a delay tactic to which they object strenuously. Late last month, MTS Allstream Inc.’s Chris Peirce, senior VP of regulatory and government affairs, laid the objectors’ arguments on the line for NL. "This appears to be an application to review and vary the unwillingness of the CRTC to take TELUS’ suggestions on scope for this proceeding," Peirce said. "TELUS talks about the procedural twists and turns the proceeding has taken...It’s taken those twists ands turns because TELUS balked at pretty much every step of the way with some procedural suggestion or other to delay. So this is obviously the last chapter of the delay and one could get a little angry to think that the regulatory lag, if you will, that competitors endure time and time again could then be thrust up as the reason to cause further regulatory lag."

CRTC has obligation to consider new evidence in CDNA proceeding, says TELUS

News | September 30, 2004

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