Bell Canada fighting back to get stay on application of current winback rules

The country’s largest incumbent telephone company Bell Canada continues to press on its battle with competitive providers and the Canadian Cable Telecommunications Association regarding the current winback rules. The following is an edited excerpt of the company’s January 3 submission. Each of the respondents cited the commission’s analysis of the balance of convenience, taking into account the public interest, in the Aliant Stay Decision and argued that this analysis essentially dictates that the instant stay should be denied. Contrary to the submissions of the respondents, the factual record, and the resultant evaluation of the balance of convenience (including the public interest) which led the commission to deny the stay in the Aliant Stay Decision are distinguishable from the instant application on a number of important bases. First, at no time in the Aliant Stay Decision did the commission ever consider the public interest in allowing consumers and ILECs to exercise their constitutionally guaranteed section 2(b) Charter rights. In fairness, it would have been difficult for the commission to have properly evaluated the public interest in upholding ILECs’ and their customers’ section 2(b) Charter rights at the time of the Aliant Stay Decision, since much of the evidence demonstrating the public’s interest in the enforcement and exercise of these section 2(b) rights was filed with the commission two months after the issuance of the Aliant Stay Decision. This evidence must be considered as part of the Commission’s assessment of the public interest in considering where the balance of convenience lies in the instant application. Second, at no time in the Aliant Stay Decision did the commission ever consider the evidence before it in the winback application that the winback rules result in a prima facie violation of the section 2(b) rights of ILECs and their former customers under the Charter. This too is new evidence which the commission must take into account in evaluating the public interest herein. Third, in denying Aliant’s stay application, the commission failed to consider that it had not, up until that time, ever conducted a section 1 analysis to determine whether the prima facie infringement of section 2(b) rights resulting from the winback rules could be justified under the Oakes test under section 1 of the Charter. The proceeding intended to generate the record required for the commission to undertake a section 1 analysis of the winback rules was initiated by way of the commission’s 24 October 2005 process letter six weeks after the issuance of the Aliant Stay Decision. This is a further new development associated with the instant Stay Application that the commission could not have considered in the Aliant Stay Decision. Fourth, in the Aliant Stay Decision, the commission assumed in the absence of any evidence on the point that irreparable harm to the public interest "could" have occurred had Aliant’s interim stay application been granted. In contrast, the commission has before it in the winback application proceeding a complete record as to the actual impact of discontinuing the application of the winback rules on the respondents. Accordingly, in contrast with the Aliant Stay Decision, there simply is no factual basis on which the Commission could conclude that there would be irreparable harm to the public interest if the instant stay were granted. For all of the foregoing reasons, the result of the Aliant Stay Decision is irrelevant to the commission’s consideration of the balance of convenience, including the public interest in the instant application.

Bell Canada fighting back to get stay on application of current winback rules

News | 01/18/2006 5:00 am EST

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