Rogers cries foul over New Brunswick access charges, seeks CRTC relief

Rogers Communications Inc. says the New Brunswick government isn’t playing fair regarding the money the province demands from carriers to access highways, which service providers need for transmission infrastructure maintenance. Rogers is turning to the CRTC for a remedy: the company filed an application on November 11 requesting the CRTC to order New Brunswick’s Department of Transportation (DOT) to set highway access fees in accordance with the commission’s controversial Ledcor decision of 2001. Ken Engelhart, Rogers’ VP of regulatory affairs, says the dispute between his firm and the province’s DOT stems from intransigence on the provincial agency’s part. "Their view is they have a valid, provincial regulation and that’s the end of it." Most of the poles Rogers uses belong to Aliant Telecom Inc. and New Brunswick Power. The highways along which the poles run fall under DOT jurisdiction. Rogers owns a small number of poles itself on a 40-kilometre stretch of highway between St-Quentin and St-Léonard NB, but those poles hold just 1% of the 3,424 kilometres of cable Rogers uses in New Brunswick. Under New Brunswick’s Highway Act, the DOT requires NB Power and Aliant to obtain Highway Usage Permits (HUPs) to access highways for cable maintenance. The DOT does not require Rogers to acquire HUPs to deal with cables on Aliant- and NB Power-owned poles. The DOT does, however, still charge Rogers for highway access. The DOT also has a ‘Tri-Agency Agreement’ with Aliant and NB Power, which sets out the division of costs – who pays what – when the DOT needs the pole owners to move communication equipment. The DOT has no such arrangement with Rogers regarding its equipment on Aliant and NB Power poles. Since 2000 the DOT has sent Rogers an annual bill of about $170,000 for highway usage fees. Rogers paid grudgingly until 2003, when it told the DOT the payments would stop because the fees "are arbitrary, excessive and do not reflect prospective and incremental costs incurred by the DOT." In 2003, Rogers asked the DOT for a deal similar to the Tri-Agency Agreement, which sees the DOT reimburse pole owners when the provincial body requests that communication facilities be relocated, and the pole owners incur costs in that process. But the DOT won’t do the same for Rogers. The company says it pays about $250,000 each year to meet the DOT’s move-requests, with no reimbursements in the cards. In early 2004 the DOT demanded that Rogers pay the $170,000 highway usage fee. Rogers refused, citing the CRTC’s Ledcor decision (Telecom Decision 2001-23). Ledcor laid out principles regarding municipal access and the money cities should be allowed to recover for it. Although Ledcor spoke to city infrastructure access, it also applies to provinces like New Brunswick, Engelhart tells Network Letter. "The Telecom Act speaks of access to any highway or public place, so it applies equally to provincial highways as it does to municipal roadways," he says. In the spring of 2004, the DOT repeated its request for payment. Rogers replied, saying the carrier and the DOT should take this dispute to the CRTC for mediation. In turn, the DOT replied, citing the Supreme Court of Canada decision in Barrie Public Utilities v. Canadian Cable Television Association. "It is not even certain that has legislative authority to address such fees," the DOT said. The Supreme Court upheld in the Barrie decision a Federal Court of Appeal decision that utility pole regulation is beyond the CRTC’s purview. Last month Rogers received word that the DOT sought advice from New Brunswick’s attorney general, who said the CRTC has no jurisdiction over this matter. Early this month, Rogers heard that the DOT planned to initiate collection proceedings. A DOT spokesperson wouldn’t comment on the Rogers situation because it’s now before the courts. Engelhart says Rogers is trying to halt the court action. "We’ve asked our lawyer to contact them and see if they will stay those proceedings while the CRTC process is going on. If they won’t, then we’ll have to ask a judge to stay the proceedings." In its application to the commission, Rogers says the CRTC does have jurisdiction, according to sections 42 and 43 of the Telecommunications Act, as well as a Federal Court of Appeal decision regarding the Federation of Canadian Municipalities and AT&T Canada Corp. (now MTS Allstream Inc.) that upheld the commission’s right to mediate disputes (NL March 31/04). Rogers says the DOT is double dipping. The department wants Rogers to pay, but it also charges Aliant and NB Power for access to the same highways, poles and cables under HUPs. Rogers quotes New Brunswick’s Highway Act: the DOT is allowed to charge a single fee "for one or more cables." The DOT gets paid at least twice now. The HUPs the DOT has with Aliant and NB Power should be the sole charging mechanisms, Rogers says, reiterating that it has no such agreement with the DOT. Rogers says the Tri-Agency Agreement, with its reimbursement mechanism for DOT-requested relocations, gives Aliant, Rogers’ competitor, an unfair advantage. Rogers has to carry the full brunt of relocations, while Aliant can turn to the DOT for financial aid. Noting again that the DOT refuses to enter into a similarly friendly agreement with Rogers, the company says the CRTC should order the DOT to negotiate a division-of-costs mechanism. "Rogers respectfully requests the commission to declare that the usage fees that the DOT seeks to levy against Rogers are inappropriate and order the DOT to permit Rogers DOT-controlled highways for the purpose of constructing, operating or maintaining its transmission lines at no charge absent of demonstration that such use gives rise to…costs to the province," reads Rogers’ letter to the CRTC.

Rogers cries foul over New Brunswick access charges, seeks CRTC relief

News | November 23, 2005

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