Commission strong arms Vancouver to negotiate with MTS Allstream and Shaw

The CRTC is telling the City of Vancouver in no uncertain terms that it must negotiate long-term municipal access arrangements (MAAs) with MTS Allstream Inc. and Shaw Cablesystems Ltd. that are amenable to all parties. The consequence of not getting deals done, says the commission, is that it will impose settlements. In September 1 letters to the carriers and the city, the commission says it expects Vancouver to make access deals with MTS Allstream and Shaw by early November. Otherwise, the CRTC might simply sidestep the city, and give the service providers what they want: easy access to Vancouver’s highways, roads and underground conduits, all in the name of network maintenance and expansion. It’s good news, says Ken Stein, Shaw Communications Inc.’s senior VP of corporate and government affairs. "We’re in discussions with the City of Vancouver, which is where we always wanted to be."Despite the commission’s ultimatum, Vancouver seems unconcerned. "The CRTC is basically telling the two parties to get together to negotiate the agreements," says Yvonne Liljefors, a city lawyer. "That’s fine with us. That’s what we plan to do." Shaw took its complaint to the CRTC last December. The carrier said at the time it couldn’t reach an appropriate MAA with Vancouver. Whereas Shaw wanted a long-term, clearly written agreement, the city offered only interim agreements, acknowledged by many to be cumbersome for service providers to manage. Like Shaw, MTS Allstream also wanted a streamlined, enduring MAA. Both carriers referenced the controversial Ledcor decision (Decision 2001-23) in their arguments. Ledcor essentially laid out principles regarding municipal access and the money cities should be allowed to recover for it. The Federation of Canadian Municipalities took the commission to court over Ledcor, saying the CRTC had over-stepped its mandate. But ultimately the judiciary sided with the commission. In the September 1 letters, the CRTC says Vancouver’s interim MAAs just don’t cut it."The commission considers that interim access agreements do not provide sufficient commercial certainty to allow MTS Allstream to complete effective long-term planning," reads the letter to MTS Allstream and Vancouver. "The commission also considers that interim agreements may affect the ability of MTS Allstream to enter into long-term service agreements with customers." "The commission considers that it would be reasonable for MTS Allstream and Vancouver to negotiate conditions of access for a term of 15 years," the CRTC writes. The commission also suggests a 15-year MAA for Shaw and Vancouver in its letter to those entities.The commission gives all involved 60 days to hammer out their deals. Otherwise, the telecom regulator could impose its own decision in accordance with section 43(4) of the Telecommunications Act, which states the CRTC can permit carriers to access municipal infrastructure regardless of the city’s objections, but "subject to any conditions that the commission determines." According to David Kidd, a lawyer at Blakes, Cassels & Graydon LLP, the CRTC seems to be finally flexing its muscles in these letters – forcing Vancouver to get with the Ledcor program. " didn’t want the Ledcor decision to stand as the only decision by which companies could come to an arrangement," Kidd explains. "Since then, though, it’s clear that some of the cities have become less than interested in developing a long-term arrangement that would give carriers some certainty. They’re doing interim or one-off arrangements, which are very slow and create a lot of uncertainty. "I think the commission’s saying in the September letter, ‘Okay guys, we’ll give you 60 more days to come up with a long-term arrangement, 15 years, that would comply with certain principles. Otherwise we’re going to have to mandate a decision for you.’" But judging from the words of Andrew Roman, a lawyer at Miller Thomson LLP representing the City of Edmonton in an MAA battle against MTS Allstream, the September 1 letters represent the tip of an iceberg – a slowly melting mass that could land the CRTC in deep water. In his opinion Ledcor flies in the face of a fundamental fact. "Municipalities have a legal duty not to allow people to use their space for free if it’s for commercial exploitation," Roman says. By attempting to limit the amount of money cities can charge for access, Ledcor is at odds with cities’ official roles. Ledcor might prove to be less of a solution for MAA disputes and more of a problem. "There’s going to more and more and more litigation," Roman says, because the seminal decision steps on municipal toes. Roman also balks at the CRTC’s suggestion that Vancouver should enter into 15-year agreements with MTS Allstream and Shaw. "No one has ever offered one for that long. People always talk about five years and renewals." But Kidd from Blakes has a different opinion. "Carriers need … certainty in their business," he says, noting that it has taken three years for MTS Allstream to get to this stage: the start of a potential, long-term MAA. Add to Vancouver the many other cities on the carrier’s MAA list, and you have a potential administrative nightmare. "The carriers need to get on with life," Kidd says. "Negotiating short-term agreements could be a lengthy and repeated process throughout Canada." According to representatives from Shaw and Vancouver, the carriers and the city are talking about the details. But what if they can’t come to an agreement by the CRTC’s early-November deadline? Stein from Shaw doesn’t entertain that pessimistic question."We generally go into these discussions assuming things will work out. We value our relationship with the city; we want to make sure we move this forward." According to the September 1 letters, Vancouver argues that whatever action the CRTC decides to take, it’s bound to consider the Telecommunications Act section 43(4). That part of the Act not only gives the commission power to permit access, but it also enforces a level of restraint: "…due regard to the use and enjoyment of the highway or other public place by others." If the CRTC makes a decision for Vancouver and the carriers, it must consider the impact access could have on citizens, for better or for worse. If it comes to that, the commission’s decision won’t be a bomb on the city, but a level headed response to intransigence.

Commission strong arms Vancouver to negotiate with MTS Allstream and Shaw

News | 09/29/2005 4:00 am EDT

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