TELUS COMMUNICATIONS COMPANY - Industry … COMMUNICATIONS COMPANY Reply Comments for PROPOSED...

TELUS COMMUNICATIONS COMPANY

Reply Comments for PROPOSED REVISIONS TO THE FRAMEWORKS FOR

MANDATORY ROAMING AND ANTENNA TOWER AND SITE SHARING

Gazette Notice DGSO-001-12 published on March 24, 2012

June 13, 2012

http://www.ic.gc.ca/eic/site/smt-gst.nsf/eng/sf10250.html�



i TELUS Reply Comments to Gazette Notice DGSO-001-12 June 13, 2012

Table of Contents Introduction .............................................................................................................................................. 1

TELUS’ Reply to Comments Submitted by Government and Public Safety Parties .................................. 3

TELUS’ Reply to Reponses of Industry Participants to Questions Posed by Industry Canada in DGSO-001-12 ....................................................................................................................................................... 7

Section 4 - Mandatory Roaming ........................................................................................................... 7

Section 5 - Mandatory Tower and Site Sharing .................................................................................. 20

Section 6 – Arbitration ........................................................................................................................ 32

1 TELUS Reply Comments to Gazette Notice DGSO-001-12 June 13, 2012

Introduction

1. These Reply Comments are filed by TELUS Communications Company

(“TELUS” or the “Company”) in response to the Industry Canada’s Proposed

Revisions to the Frameworks for Mandatory Roaming and Antenna Tower and

Site Sharing (the “Consultation Document”)1

2. The parties filing submissions in this Consultation can be grouped into three

general categories. The first category contains selected industry participants,

including TELUS, that argue for continuation of Industry Canada’s policies

emphasizing commercial negotiations as an integral part of mandatory roaming

and tower sharing. These industry participants recognize that reliance on

commercial negotiations ensures that incentives to invest in and build wireless

Radio Access Network (“RAN”) infrastructure are not adversely affected so that

Canadians across the country will have access to the fastest and most innovative

wireless services. Having said that, for some issues, TELUS’ positions in this

Consultation differ from others in this category. This is because TELUS

recognizes both the need for facilities-based competition and that the regulatory

framework must be designed to allow for effective remedies to prevent a party

from intentionally denying another party access to mandatory roaming or

site/tower sharing.

In these Reply Comments, TELUS

addresses issues raised by the other parties that have filed submissions as part of

this proceeding.

3. The second category contains other industry participants, including the new

entrant wireless carriers, that desire for more regulatory interventionist

approaches for mandatory roaming and tower sharing. These parties

underestimate the potential for negative effects on investment and harm to the

Government of Canada’s stated objective to ensure that rural communities have

the same access to wireless services as is available in urban areas. For this

1 Gazette Notice DGSO-001-12, Published on Industry Canada website: March 14, 2012, Publication

date in Canada Gazette: March 24, 2012.


reason, their proposals must be scrutinized carefully and rejected where

necessary.

4. The final group of parties comprise government and public safety agencies.

These parties include Public Safety Canada, the RCMP, E-Comm 911, the

Province of Nova Scotia, the Province of Ontario and the York Regional Police.

These parties have limited their comments to specific roaming and tower sharing

proposals relevant to public safety networks.

5. In these Reply Comments, TELUS will first address issues raised by the public

safety and government parties. TELUS will then examine the industry

participants’ comments on each of the roaming and tower/site sharing proposals

raised by Industry Canada and any other new proposals that these parties may

have brought forward.

6. In some cases, there is general or large consensus on the Industry Canada proposal.

For others, TELUS will provide specific response to certain parties’ comments,

with particular reference to those views that diverge from those of TELUS’. In

these Reply Comments, the failure of TELUS to address any specific matter raised

by another party in its comments should not be construed as agreement where such

agreement is contrary to the interests of the Company.


TELUS’ Reply to Comments Submitted by Government and Public

Safety Parties

Comments on Mandatory Roaming Proposals

7. The roaming issues raised by these parties relate to roaming arrangements

between commercial network operators and public safety network operators.

Public Safety Canada, the RCMP and the Government of Nova Scotia all support

mandatory roaming for public safety network users on commercial networks.

Public Safety Canada also requests that priority of public safety user traffic when

roaming on commercial networks be investigated to ensure that public safety

related calls are not affected or delayed by traffic congestion. All of these parties

raise concerns about commercial network users roaming on public safety

networks, citing potential congestion issues to the detriment of public safety.

8. Public Safety Canada and the RCMP both ask that seamless roaming be provided

for public safety users when roaming on commercial networks. However, neither

party explore the technical issues related to seamless roaming,2

9. Based on the above, there remain significant issues for Industry Canada to explore

with stakeholders prior to ordering any mandatory roaming between public safety

and commercial network operators. While it is true that there will be benefits for

public safety users by roaming on commercial networks, the issue of prioritization

of public safety traffic must be examined to determine any technical limitations or

effects on commercial network users. The same is true for the issue of seamless

roaming. In addition, some parties have asked that hold-time issues and

with Public Safety

only saying that it was technically possible, but that the issue of “hold-time” for

public safety roamers on commercial networks be subject to further study.

Interestingly, neither party indicates whether public safety network providers

should be obliged to provide seamless roaming to commercial users.

2 TELUS responds to comments on seamless roaming between commercial operators in a subsequent

section in these Reply Comments.


commercial users roaming on public safety networks be part of a follow-up

consultation.

10. TELUS is also cognizant of industry consultation forum held from May 22 to

May 24, 2012, by Public Safety Canada related to the establishment of a National

Public Safety Broadband Network. This initial forum followed the announcement

by the Minister of Industry of the designation of 10 MHz allocation of the 700

MHz spectrum for public safety broadband use. TELUS participated in this initial

forum and recognizes that there are many issues to be resolved amongst the

stakeholders, including roaming and antenna tower and site sharing issues, before

a national interoperable public safety broadband network can be established and

made operational.

11. Given the preliminary nature of the discussions regarding all public safety

roaming issues at this time, TELUS requests that all public safety network

roaming issues be part of a future comprehensive Industry Canada. In the

meantime, public safety and commercial operators remain free to negotiate

roaming arrangements if the parties view them as desirable, with all terms and

conditions subject to commercial agreement. As such, parties are able to seek and

obtain roaming arrangements in the interim period while the consultation related

to the establishment of a national interoperable public safety broadband network

is being undertaken.

Comments on Tower Sharing Proposals

12. All of the government and public safety parties that commented on mandatory

tower sharing indicate misgivings about Industry Canada’s tower sharing

proposals. Public Safety Canada and the RCMP note that they need to retain

control and access to public safety towers and sites for security concerns, with

Public Safety Canada also stating that it must retain the right not to share

particular sites of its choosing. The Provinces of Nova Scotia and Ontario each

raise similar concerns. York Regional Police is adamant that mandatory site


sharing would restrict its ability to deliver adequate public safety communication

services.

13. In addition, all of these parties are concerned about the tower and site information

disclosure proposals that Industry Canada had included as a means to assist all

parties to be aware of potential sites for sharing. All public safety and

government agencies oppose to any notion that they be required to provide

information disclosure requirements. E-Comm 911, for example, notes that

precise information disclosure of its sites would create significant security

concerns. These are issues that were raised in the recent forum initiated by Public

Safety Canada.

14. TELUS acknowledges the concerns raised by these parties. Furthermore, once

commercial operators share their sites with public safety agencies, those sites

would be subject to the same security concerns as those that affect any standalone

public safety site. As these sites become increasingly sensitive, they become

more expensive for the commercial operator to maintain, and limit the potential

for further use or sharing to other commercial operators. As a result, requiring

commercial operators to share sites with public safety network providers has

higher costs than sharing between commercial operators.

15. In light of the above, TELUS supports a framework where any site sharing

between a commercial operator and a public safety agency is the product of

commercial negotiation. Neither party should have an obligation to share its sites

to the other party. Instead, each can choose whether or not to share. This is the

same proposal as submitted by E-Comm 911, and it makes sense based on the

concerns raised by all of the public safety and government parties.

16. Finally, TELUS agrees with public safety and government parties that they should

not be subject to any information disclosure requirements to Industry Canada

under proposals 5-6 and 5-8 in the Consultation Document. Security interests

must prevail, meaning that these parties should not be obliged to maintain

publicly accessible information on tower sites on Industry Canada’s proposed


database and they should not be required to report on the status of proposed and

completed negotiations of any site sharing agreements.


TELUS’ Reply to Reponses of Industry Participants to Questions

Posed by Industry Canada in DGSO-001-12

Section 4 - Mandatory Roaming

17. This proposal would extend mandatory roaming to licensees of Mobile Broadband

Services (“MBS”) spectrum in the 700 MHz band and Broadband Radio Service

(“BRS”) spectrum in the 2500 MHz band. The proposal would make mandatory

roaming indefinite and removes the in-territory and out-of-territory distinctions

that are included in the current conditions of licence. Bell, MTS Allstream,

SaskTel and TBayTel are all strongly opposed to this proposal, with Rogers,

Public Mobile, Mobilicity, Eastlink and Videotron in agreement.

18. TELUS shares the concerns that Bell, MTS Allstream and SaskTel have that

indefinite mandatory roaming requirement would have serious consequences on

incentives to invest in RAN infrastructure. However, TELUS did not reject the

Industry Canada’s proposal outright, as Bell does, or ask for severe restrictions on

mandatory roaming principles, as do MTS Allstream and SaskTel. TELUS

continues to acknowledge the intent of Industry Canada to provide all carriers

additional time to deploy their networks while allowing them to provide service

where they have not yet deployed. TELUS also agreed with extending these

requirements to all licensees where they lack coverage, as opposed to the current

4-1: Industry Canada is seeking comments on the proposed revisions to Section 9.1 of the current Conditions of Licence for Mandatory Roaming as follows (new text is in bold): The Licensee must provide automatic digital roaming (roaming) indefinitely by way of Roaming Agreement(s) on its cellular, PCS, AWS, MBS and BRS networks to any other licensee in these bands (A Requesting Operator). Where technically feasible, the Licensee shall offer roaming in all its licensed service areas in the aforementioned bands. A Requesting Operator includes provisional licence winners.


rules which provide mandatory roaming rights only to new entrants, including

some incumbent carriers.

19. TELUS proposed a five-year review of the mandatory roaming framework to

allow Industry Canada to assess whether incentives to invest were being

undermined. TELUS’ proposal works to blend the seemingly contradictory goals

of encouraging investment in RAN infrastructure while also mandating support

for carriers where they have not invested in RAN infrastructure. TELUS noted

that the upcoming MBS licences will contain explicit deployment requirements.

Therefore, those five-year reviews (which would take place for each carrier near

the five-year anniversary date of the issuance of its MBS licence) would examine

whether the applicable carrier was on target to meet the deployment requirements

in its conditions of licence.

20. TELUS recognizes that one of Industry Canada’s objectives in having an

indefinite mandatory roaming requirement is to provide greater certainty for

licensees. TELUS’ proposal does not dilute this certainty. This is because

TELUS’ proposal is directly linked to another existing condition of licence, the

deployment requirements. Therefore, provided that a carrier is meeting its

deployment conditions from its licenses, it will continue to obtain mandatory

roaming, without exception. In addition, TELUS is not advocating for any carrier

to be automatically cut-off from mandatory roaming if it is delayed in meeting its

respective deployment requirements. Provided that a carrier can show that it has

made concerted efforts to meet its requirements and a bona fide plan as to when it

will satisfy its requirements, Industry Canada can use its discretion and maintain

the right for that carrier to obtain mandatory roaming.

21. Also, TELUS’ proposal is not administratively burdensome. These five-year

reviews can be conducted through written filings, similar to what licensees

already fulfill as part of the required annual reporting process. All that would be

required would for licensees to submit written correspondence prior to the five-

year anniversary date of their licences that note their respective deployment


requirements and their current deployment status. Should Industry Canada

require further information from an individual licensee, it could request it at that

time. As such, these proposed requirements would not be onerous.

22. MTS Allstream recommends an extension to the rural deployment requirement on

any licensees with 20 MHz of paired spectrum blocks of 700 MHz spectrum.

MTS Allstream suggests that any such licensees be subject to a rural roll-out

requirement defined both in terms of population (97 per cent within ten years) and

in terms of geographic coverage (within ten years, coverage equal to the coverage

area of all service providers currently providing service in the relevant tier).

Therefore, MTS Allstream seeks to expand the deployment requirements for

licensees that have access to 20MHz of spectrum from the MBS auction that have

already been set out by Industry Canada in at Decision B4-2 in Policy and

Technical Framework - Mobile Broadband Services (MBS) — 700 MHz Band

Broadband Radio Service (BRS) — 2500 MHz Band (the “MBS and BRS Policy

Framework”).

23. TELUS agrees that there is merit in examining the deployment requirements

stated in the MBS and BRS Policy Framework. TELUS recognizes that Industry

Canada’s proposed MBS licensing requirements as stated in its Consultation on a

Licensing Framework for Mobile Broadband Services (MBS) —700 MHz Band

are open for comment in a separate proceeding. TELUS’ only comment here is

that the proposed general deployment requirements for 700 MHz spectrum,

including prime blocks, are weaker than those of high band AWS spectrum.

TELUS will provide a full commentary on deployment proposals in its June 25,

2012 submission as part of that consultation and will also respond specifically to

MTS Allstream’s recommendations at that time.

24. In addition, MTS Allstream’s proposals about mandatory roaming, as opposed to

network deployment obligations, defeat the intent of Industry Canada. MTS

Allstream proposes that carriers with 20 MHz of 700 MHz paired spectrum (i.e.

those with a specific roll-out requirement) shall not be mandated to provide in-


territory, “LTE-speed” roaming outside of urban areas for a period of five years

from the date of issuance of their licences. The ostensible purpose of MTS

Allstream’s proposal is to give those carriers an opportunity to deploy networks in

their rural areas without the reciprocal obligation to allow for other carriers to

roam. However, this proposal would, in effect, deny other carriers the

opportunity to serve those rural areas. This, of course, violates the policy

objective of the Government of Canada to provide customers the ability to choose

from competing wireless carriers, large and small alike, that are enabled to serve

rural areas by way of roaming arrangements.

25. MTS Allstream’s proposal would also perpetuate the situation of denying roaming

to TELUS outside of the urban areas of Winnipeg and Brandon in Manitoba. This

anomalous situation was already addressed by Industry Canada in the MBS and

BRS Policy Framework to ensure that mandatory roaming is made available to all

licensees. TELUS notes that MTS Allstream’s proposal is part of its concerted

effort to prevent TELUS from competing in Manitoba. For instance, TELUS has

experienced MTS Allstream denying TELUS wireless access interconnection

services in rural areas and delaying the construction of 911 trunks that are

required for TELUS to provide mandatory 911 services. Therefore, it is clear to

TELUS that MTS Allstream’s primary motivation in its roaming proposal is to

protect its incumbent advantages in its home province for at least five more years,

to the detriment of competition and consumer choice.

26. Similarly, SaskTel’s proposal would provide mandatory roaming only to new

entrants, as defined in the AWS auction or as a carrier with less than 10%

Canadian wireless industry revenues, despite Industry Canada’s removal of the

new entrant condition for mandatory roaming in the MBS and BRS Policy

Framework. As a result, new entrants, including SaskTel, would obtain

mandatory roaming to new entrants, across the country, but national providers

such as TELUS and Rogers could be denied roaming in provinces with regional

incumbents such as Manitoba and Saskatchewan. Similar to MTS Allstream’s

proposal, SaskTel’s proposal violates the intent of Industry Canada’s proposed


policy to extend mandatory roaming to all carriers, regardless of size, across

Canada, and should be dismissed.

27. In contrast to the parties identified above, the remainder of the wireless industry

participants all support the implementation of indefinite roaming arrangements.

However, these parties do not properly account for possible negative impacts on

the development of RAN networks. Without any avenue for a periodic

assessment of facilities development, these proposals risk having some carriers

under-utilize scarce spectrum resources, to the detriment of facilities-based

competition in Canada.

28. TELUS’ proposal extends mandatory roaming to all carriers, subject only to a

review by Industry Canada every five years. No carrier would be deprived of

mandatory roaming in any region in Canada, benefiting both customers who live

in those regions and those who travel there. The only measure of control that

TELUS would include is that Industry Canada review mandatory roaming for

each carrier every five years in conjunction with its fulfillment of its individual

deployment obligations. Provided that the deployment condition of licence is

being satisfied or there is a realistic plan as to how the deployment will be

achieved, the carrier’s right to mandatory roaming will be maintained. In

summary, TELUS’ proposal is designed to achieve Industry Canada’s dual

objectives of rigorous wireless competition for all customers across Canada as

well as maintaining vigorous network investment in Canada, including in rural

and remote areas.

29. As a sidenote, Rogers brings up irrelevant matters relating to commercial network

arrangements between Bell and TELUS. Past commercial network arrangements

between parties have nothing to do with the mandatory roaming requirements

under consideration in this Consultation. In any event, no regulatory rule prevents

Rogers from seeking its own network arrangements with other carriers. Finally, it

should be noted that TELUS’ proposal would extend mandatory roaming to any

carrier, including Rogers.


30. In its Comments, TELUS noted its agreement with the existing section 9.2 of the

conditions of licence in that it sets out the basic technical roaming requirements

that have been agreed upon by the industry participants around the world, because

roaming is generally used for carriers to improve their existing coverage and

service. Of note, a licensee is only required to provide roaming such that a

requesting operator’s subscribers can originate or terminate communications on

the licensee’s network when out of range on their home network. In addition, a

licensee is only required to provide roaming capabilities based on services that it

provides on its own network and where the roamer’s device is capable of

accessing the licensee’s network. Section 9.2 also outlines that roaming should

function” without any special facilitating action by the customer” and that

mandatory roaming does not include resale.

31. Section 9.2 also provides that roaming does not require “communications hand-

off between home and host networks such that there is no interruption of

communications in progress,” commonly referred to as seamless roaming. Most

industry participants have agreed that seamless roaming should not be mandated.

This makes sense given that such a requirement would be an anomaly in the

mobile wireless world because of the complex technical and cost requirements.

32. WIND contends that unspecified “changes” are required so that incumbents

consider seamless roaming requests in good faith. Eastlink makes a similar

proposal that licensees be required to provide seamless roaming where technically

and economically feasible.

33. TELUS responds that in Decision 2011-360,3

3 Globalive Wireless Management Corp., operating as WIND Mobile – Part VII application regarding

roaming on Rogers Communications Partnership’s wireless network, Telecom Decision CRTC 2011-360, June 3, 2011 (“Decision 2011-360”).

the CRTC determined that the

current regulatory framework provides that parties are “free to negotiate any

4-2: Industry Canada is not proposing any changes to the current Section 9.2 of the Conditions of Licence for Mandatory Roaming.


seamless roaming arrangement in good faith.” As a result, there is no specific

change necessary to satisfy WIND and Eastlink’s proposals, and in any event,

WIND itself did not specify what change should be made. As a result, Industry

Canada should dismiss WIND and Eastlink’s proposals as unnecessary.

34. There was general agreement that two weeks would be sufficient for licensees to

respond to a requesting operator with technical information relevant to

formulating a roaming proposal Only SaskTel asks for an extension of the time to

four weeks, meaning that most industry participants are prepared to commit to a

two-week response time frame. Therefore, in order to alleviate SaskTel’s concern

that a two-week period is insufficient, TELUS proposes that licensees have, in

general, two weeks to respond, but additional time might be permitted if there are

extenuating circumstances.

35. TELUS also re-iterates that its commitment to two weeks was based on a

requesting operator making a legitimate and complete request for a roaming

agreement and supplying the licensee with a copy of its IR21 form that includes

its technical data. In addition, TELUS proposed that licensees be required to

provide only certain pieces of technical information relevant to formulating a

roaming proposal. It identified, as an example, the information it would provide

within two- weeks of receiving a request for a GSM network roaming agreement.

• AA12 – GSMA standard roaming agreement which would include TELUS specific deviations for domestic unilateral roaming

• AA13 – common annex to AA12 which details operational terms such as settlement procedures, file exchange methods, customer care principles.

4-3: Industry Canada is seeking comments on the proposed revised text to replace the current wording of Section 9.3 of the Conditions of Licence for Mandatory Roaming (new text is in bold): In order to satisfy the condition of roaming in accordance with this licence, the Licensee must respond to a request for information by a Requesting Operator within two weeks of receiving the request by providing to the Requesting Operator, preliminary technical information, such as technical data, engineering information, network requirements, and other information relevant to formulating a Roaming Proposal.


• AA14 – individual annex to AA12 which contains TELUS contact details, standard CAD rates (a separate rate agreement would still be negotiated), TADIG codes, network services available and other details

• IR21 – TELUS’ technical data which lists network elements

• TELUS specific HSPA coverage maps

36. TELUS responds to comments made about proposals 4-4 and 4-5 together

because both proposals address the general principle that roaming arrangements

should be the product of commercial negotiations between the parties, rather than

obtained via regulatory intervention. TELUS has agreed with Industry Canada’s

proposals to not change the underlying principles of commercial negotiation

because they provide the only mechanism where mandatory roaming can be

reconciled with continued incentives to invest in RAN infrastructure. Rogers,

Bell, MTS Allstream and SaskTel are also of this view.

37. TELUS also noted that rate regulation would require the CRTC to approve rates

and roaming agreements under its rate setting powers set out in the

Telecommunications Act. This is a highly interventionist regime and would

require the development of tariffs by way of cost study reviews. Such a regime

would be onerous to implement and would cause contentious proceedings.

38. However, some parties wish to impose such a regime. In particular, WIND asks

for a rate cap on domestic roaming rates with an option for review by the CRTC

to determine just and reasonable rates. WIND seeks a “model” standard roaming

agreement that is subject to Commission approval.

4-5: Industry Canada is not proposing any changes to the current text of Section 9.6.

4-4: Industry Canada is not proposing any changes to the current text of Sections 9.4 or 9.5. It is expected that roaming agreements will be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar roaming services.


39. In response, these proposals assume regulation for a type of marketplace that does

not exist. WIND is seeking “essential facility” style wholesale regulation where

network services are not duplicable and are of limited supply. However, such

assumptions are clearly not applicable here. First, the consensus view supports

mandatory roaming across all carriers’ networks. Therefore, there is no shortage

of options for other carriers to consider and obtain their roaming requirements.

Moreover, arrangements are often carrier-to-carrier specific, as different carriers

have very different network coverage areas and different roaming requirements.

This means that a “model” roaming arrangement would be very difficult to

achieve.

40. Furthermore, the experience of developing wholesale tariffs before the CRTC for

wireline services demonstrates that these proceedings will be time-consuming,

contentious and subject to interminable appeals. The ongoing proceeding with

respect to capacity-based billing4

41. That November 2011 CRTC decision led to separate follow-up proceedings to

implement tariffs, which all remain ongoing. In addition, at least four separate

appeals have been filed on this decision, both by incumbent carriers and

competing Internet service providers. The sum of this is that the tariffs for these

wholesale services are still subject to considerable uncertainty more than two

years since its proposed introduction. TELUS expects that a wholesale

proceeding involving mandatory roaming arrangements would be even more

for wholesale Internet services is telling in this

regard. This proceeding, which started as a single wholesale tariff application by

Bell Canada in 2009, morphed into a proceeding involving virtually every

wireline incumbent carrier in Canada, necessitating multiple submission and

interrogatory stages and an oral hearing, with a decision not rendered until

November 2011.

4 See proceedings leading to Billing practices for wholesale residential high-speed access services,

Telecom Regulatory Policy CRTC 2011-703 and Billing practices for wholesale business high-speed access services, Telecom Regulatory Policy CRTC 2011-704. Subsequent to those proceedings, the various follow-up tariff and review and vary proceedings remain ongoing before the CRTC directly related to the implementation of the associated tariffs.


contentious and time-consuming. Given the potential uncertainty of a CRTC

proceeding for mandatory roaming agreements, it is far better to have parties

negotiate commercial arrangements against a backdrop where mandatory roaming

is required and recourse to arbitration is available.

42. Some parties, such as Shaw, Mobilicity and Eastlink, voice disappointment with

the current negotiation regime, claiming that the terms being negotiated are not

commercially reasonable. These positions are invalid on their face. All roaming

arrangements, by definition, are the product of commercial negotiation. In

addition, the right to take disputes to commercial arbitration is conclusive on the

point, since an independent tribunal is then mandated to determine a resolution

based on commercially reasonable terms.

43. In light of the above, any suggested changes to proposals 4-4 or 4-5 should be

dismissed by Industry Canada.

44. TELUS has indicated that proposal 4-6 is unnecessary. It noted that it often takes

longer than 90 days to finalize roaming agreements. Of the new entrants, only

4-6: Industry Canada is seeking comments on the proposed revised text to replace Section 9.7 of the Conditions of Licence for Mandatory Roaming (new text in bold).

Industry Canada is seeking comments on the proposed revised text to replace Section 9.7 of the Conditions of Licence for Mandatory Roaming (new text in bold).

If after 60 days from the date that the Licensee receives the Roaming Proposal, the Licensee and the Requesting Operator have not entered into a Roaming Agreement or have not agreed to any interim arrangement, the Licensee must submit or agree to submit the matter to arbitration in accordance with Industry Canada’s Arbitration Rules and Procedures, as amended from time to time. The Licensee shall agree that the arbitral tribunal shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the Roaming Agreement and those relating to procedural matters under the arbitration) and that any arbitral award or results under this condition of licence shall be final and binding with no right of appeal subject to applicable provincial or territorial legislation. The Licensee must participate fully in such arbitration and follow all directions of the arbitral tribunal in accordance with Industry Canada’s Arbitration Rules and Procedures and any arbitration procedures established by the arbitral tribunal.


Public Mobile has pursued roaming arrangements with TELUS, and an agreement

was reached via commercial negotiations. It is TELUS’ understanding that no

requesting operator has availed itself of the arbitration mechanisms to obtain a

roaming agreement with any carrier in Canada and, in any event, no new entrant

exercised its arbitration rights to resolve any perceived roaming disputes.

Therefore, TELUS does not believe that the 90-day timeframe has not impeded

any party from using arbitration.

45. Many industry participants oppose this proposal, for the same reasons as noted by

TELUS. Of particular interest were the opinions of the new entrants on this

proposal. WIND opposes it entirely, noting that allowing matters to go to

arbitration 30 days quicker would “mean nothing.” Public Mobile and Mobilicity

simple voice their support of the proposal. Eastlink states that while it agreed

with the proposal, it would do “very little” to address timing. Given the

lukewarm support, at best, from industry participants, it does appear that this

proposal is unnecessary given that it will not affect negotiations in a significant

manner.

46. Many parties raise additional proposals and issues regarding mandatory roaming

in their comments. TELUS responds to each in turn.

47. Shaw, WIND, Eastlink ask that Industry Canada prohibit exclusivity clauses in

roaming arrangements that require a party to utilize only one network provider as

a roaming partner. In response, the purpose of mandatory roaming is that it is to

be made available to another carrier, as of right. As such, no licensee should be

requiring a requesting operator to sign an exclusive roaming arrangement,

because such a requirement would violate the intent of the mandatory roaming

condition of licence.

4-7: Industry Canada invites suggestions from stakeholders on additional measures (other than those discussed above) to further increase the effectiveness of mandatory roaming.


48. Having said that, while TELUS does not generally include exclusivity clauses in

its roaming arrangements, such clauses should not be prohibited outright. Parties

should be allowed to negotiate their arrangements and seek either exclusive or

non-exclusive arrangements as they see fit. Exclusive roaming arrangements

normally will mean greater volume of roaming minutes, allowing parties to agree

upon roaming rates and terms that mutually benefit both parties.

49. TELUS agrees with the position of Rogers that Industry Canada give effect to the

revised policy as soon as decisions are issued and that the policy changes should

not be contingent upon completion of 700 MHz auction. Implementing the

revised policies at the time of the decision on this Consultation would provide

industry participants with the immediate benefits desired from the revised

mandatory roaming and site sharing rules in advance of the 700 MHz auction,

which is not scheduled to take place until summer 2013. This means that

subsequent to Industry Canada’s determinations in this proceeding, any new

agreements would be negotiated based on the new conditions of licence.

50. TELUS cautions against acceptance without conditions of the proposal by

Eastlink that, should a dispute arise that goes to arbitration, roaming would be

provided to the requesting operator during the interim period while the arbitration

proceeds. Eastlink proposes that roaming in this interim period would be

provided by the network operator based on the terms it has proposed to the

requesting operator, and would be subject to a true-up upon completion of the

dispute resolution.

51. While seemingly reasonable, this proposal causes some concerns. First, disputes

that may be referred to an arbitrator for resolution can go beyond a mere

disagreement about rates. In such cases, a true-up might not be feasible after an

arbitrator’s decision on the merits of the dispute. As such, only disputes arising

out of a disagreement regarding rates are amenable to this interim agreement

proposal.


52. In addition, should an interim agreement be put in place during the arbitration

process, there remains a risk that following an arbitrator’s decision, the requesting

operator will choose not to implement the roaming arrangement based on the

arbitral award. In such a circumstance, customers served by the requesting

operator would lose services that were being provided by way of the interim

roaming agreement. In order to avoid this potential loss of service, prior to any

interim roaming agreement being put in place during an arbitration process, the

requesting operator must be required to commit to implement the terms of the

arbitral award once it is rendered, without exception.


Section 5 - Mandatory Tower and Site Sharing

5-1: Industry Canada is seeking comments on the proposed text to replace sections 8.1 and 8.2 of the Conditions of Licence for Mandatory Tower and Site Sharing (new text is in bold). The mandatory tower and site sharing conditions of licence will apply to all radiocommunication service providers in all bands. 8.1 The Licensee must facilitate sharing of antenna towers and sites, including rooftops, supporting structures and access to ancillary equipment and services (“Sites”) and not cause or contribute to the exclusion of other radiocommunication service providers from gaining access to Sites. Without limiting the generality of the foregoing, - where the Licensee is party to an agreement that includes a provision excluding other operators from the use of a Site, then, in order to facilitate the sharing of Sites, the Licensee must consent to waiving that portion of the agreement to facilitate a Request to Share; - as applicable, the Licensee must consent to or, in a commercially reasonable manner, seek the consent of third parties to the assignment, sublease or other rights of access to Sites pursuant to any agreement or arrangement to which the Licensee is a party; and - the Licensee must not enter into or renew agreements that exclude other operators from using a Site. 8.2 The Licensee must share its Sites containing antenna-supporting structures, where technically feasible, when requested to do so by any other radiocommunication service providers authorized under the Radiocommunication Act or by a party who is a provisional licence winner in accordance with a licensing process (“A Requesting Operator”).

53. This proposal would extend mandatory tower and site sharing requirements to all

“radiocommunication service providers,” rather than just “radiocommunication

carriers.” The difference lies in how these terms are defined pursuant to section 2

of the Radiocommunication Regulations.

54. TELUS agrees with the general concept of mandatory site sharing between

commercial network providers to reduce tower proliferation and to allow

competing network providers the ability to build their own facilities faster.

However, this proposal did not make clear the range of parties that would be

entitled to ask for mandatory site sharing.


55. As TELUS noted in its Comments, a radiocommunication service provider is

defined under the Radiocommunication Regulations as “a person, including a

radiocommunication carrier, who operates radio apparatus used by that person or

another person to provide radiocommunication services for compensation.” It is

uncertain whether the new definition would include broadcasters and TELUS

indicated that it did not view mandatory site sharing with broadcasters as

desirable for technical and practical reasons.

56. Other parties note similar concerns if site sharing requirements were to be

expanded. SaskTel does not see any benefit from the proposal. Videotron states

that only licensees should have the right to require sharing. Even the broadcasters

who filed comments as part of the Technical Coordinating Committee state that

they would be captured under site sharing requirements.

57. In light of the above, there is uncertainty with this proposal, because even

broadcasters believe that they might be forced to share towers in some cases.

Therefore, prior to implementing the proposed change, Industry Canada should

clarify to whom this new requirement would apply and ensure there are no

practical or technical limitations associated with these parties being subject to

mandatory site sharing. Having said that, TELUS supports the principle that all

commercial spectrum licensees, including fixed and mobile wireless spectrum

holders, should be required to share sites.

5-2: Industry Canada is seeking comments on the proposed revised text to Section 8.3 of the Conditions of Licence for Mandatory Tower and Site Sharing (new text is in bold). 8.3 In order to satisfy the condition of Site sharing in accordance with this licence, the Licensee must respond within two weeks of receiving a complete* request for preliminary technical information from a Requesting Operator as follows: - the Licensee shall provide to the Requesting Operator any preliminary technical information for each Site, such as drawings, surveys, technical data, engineering information, future requirements, lease provisions and other information relating to the site relevant to formulating a Proposal to Share that it has in its possession or control; and


- upon reasonable notice by the Requesting Operator, the Licensee shall facilitate access to the site so that a formal Proposal to Share can be formulated. * a preliminary request for technical information will be considered complete if it contains, at a minimum, two of the following: (1) the licensee’s site reference number (2) the site address (3) geographical coordinates.

58. The changes proposed would require a licensee to respond within two weeks to a

complete request for preliminary technical information for a requested site. In its

Comments, TELUS asked that the proposal recognize the challenges caused by

large surges of Preliminary Information Package (“PIP”) requests. TELUS

requested that the conditions of licence recognize that the information provided

on a PIP is not guaranteed to be accurate if the timeline for production precludes

the possibility of validation, and proposed that preliminary technical information

for each site should only be as accurate as available on a reasonable commercial

basis.

59. In addition, TELUS asked that the proposal include a requirement that when a

requesting operator seeks information on a number of sites, that parties consult on

the prioritization of sites. The proposal should allow agreement on prioritized

sites, and benchmark the highest priority sites to a two week PIP response time.

This process would also alleviate the situation that TELUS has experienced where

requesting operators seek information on a number of sites only to subsequently

withdraw a large number of those requests. (TELUS also addresses Rogers’

proposal for fees payable by requesting operators when they submit tower / site

sharing requests in a subsequent section of these Reply Comments.)

60. The review of the comments filed about this proposal show that there is support

for this proposal, although some parties note concerns similar to TELUS. For

example, MTS Allstream asks that the requesting operator be clear in its

identification of the tower being sought and that it only be required to provide

information within two weeks that is already within its possession and control.


SaskTel (who actually opposes the two-week timeframe) notes that it has received

only one request for site sharing and it was subsequently withdrawn. TELUS’

proposal is consistent with these stated positions and requests that Industry

Canada enact TELUS’ requested changes.

5-3: Industry Canada is not proposing any changes to the current text of Sections 8.4 or 8.5. It is expected that Site Sharing Agreements, including access to ancillary equipment and services, will be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar access.

61. Sections 8.4 and 8.5 of the current conditions of licence read as follows.

8.4 The Licensee must respond to a Proposal to Share from a Requesting Operator within 30 days as follows:

(a) The Licensee must provide the Requesting Operator with a response in writing and an offer to enter into a Site Sharing Agreement. Industry Canada expects that Site Sharing Agreements, including access to ancillary equipment and services, will be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar access; (b) In the event that the Licensee believes that the Proposal to Share is not technically feasible, the Licensee must provide the Requesting Operator with a response detailing the reasons why it considers that site sharing is not feasible (accompanied by any applicable technical information) and submit that evidence to Industry Canada as directed if the Requesting Operator requests that Industry Canada review the reasons provided by the Licensee in accordance with this condition.

8.5 Notwithstanding the Licensee’s initial response, if Industry Canada reviews the matter of technical feasibility under 8.4(b) above and finds that sharing is technically feasible, then the Licensee will respond to the Proposal to Share with an offer to enter into a Site Sharing Agreement in a timely manner.

62. Based on the comments filed, there was general support for this proposal. Public

Mobile and WIND both repeat their concerns about commercial rates, but, as

noted throughout these Reply Comments, commercial negotiation is a


fundamental component of this regulatory regime. These concerns were also

raised under proposal 5-4, and TELUS will respond to them under that proposal.

5-4: Industry Canada proposes that the text from Section 1.2 of CPC-2-0-17 be moved to Section 8.6 of the conditions of licence for mandatory tower and site sharing as follows (new text is in bold): Licensees must negotiate with a Requesting Operator in good faith, with a view to concluding a Site Sharing Agreement in a timely manner. In order to be considered to be negotiating in good faith, Responding Licensees must offer access to ancillary equipment and services at reasonable commercial rates.

63. Many parties, including TELUS, agree with this proposed change in that it

includes in the condition of licence the requirement that is already included in

CPC-2-0-17. The requirements proposed here are already part of the practices of

the licensees when negotiating arrangements with parties for tower and site

sharing. In addition, TELUS agrees with Mobilicity that good faith must be

exhibited by the parties at all stages in the negotiating process and after the

agreement is completed.

64. There was some disagreement about the inclusion of the language “at reasonable

commercial rates.” TELUS, along with Bell, Rogers, Videotron and SaskTel,

agreed with the proposal because the proposed language is consistent with the

overall principle that agreements for tower and site sharing are to be

commercially-negotiated by the specific parties.

65. However, WIND does not agree because it claims that commercial rates are

inconsistent with costing principles applied by the CRTC to other support

structures. Public Mobile asks for Industry Canada to mandate a rate schedule.

Eastlink requests for dispute resolution that allows parties to raise claims of undue

preference.

66. TELUS disagrees with the assertions and proposals made by WIND, Public

Mobile and Eastlink. All are advocating for rate regulation to some degree,


violating the fundamental tenet that mandatory tower and site sharing agreements

are to be the product of commercial negotiation, with recourse to arbitration

should any disputes arise.

67. TELUS also addresses a point made by WIND as to what constitutes a site

sharing agreement. WIND complains that some licensees are interpreting a

conditional approval letter as a site sharing agreement, even though the final

approval letter is still be completed.

68. In response, TELUS’ position is that a conditional approval letter is a site sharing

agreement in that it sets out the binding obligations upon the parties subject only

to certain conditions on performance, notably the engineering studies that are

required prior to any increase in tower loading. Setting the bar for a site sharing

agreement at the final approval stage would require that offer and acceptance, or

Proposal and Offer under the conditions of licence, precede the final approval.

Requesting operators would be required to complete their engineering study prior

to making a Proposal, which is not industry practice and fundamentally

inconsistent with the practical requirements of network deployment. Indeed, this

particular issue was considered and determined in the context of an arbitral

process in which TELUS was involved, and the arbitrator, fully informed, decided

that a conditional approval letter necessarily constituted a site sharing agreement

as defined in the Rules of Arbitration.

69. TELUS agrees that following the completion of the conditional approval letter,

subsequent steps leading to the final approval letter should proceed in a timely

manner as good faith performance of a site sharing agreement.

5-5: Industry Canada proposes that the text in Section 8.7 of the conditions of licence for mandatory tower and site sharing be modified to indicate that arbitration may be initiated as follows (modified text is in bold): 8.7 If after 60 days from the date that the Licensee receives a Proposal to Share, the Licensee and the Requesting Operator have not entered into a Site Sharing Agreement or have not agreed to any interim arrangement, the Licensee must submit or agree to submit the matter to arbitration in accordance with Industry Canada’s Arbitration Rules and Procedures, as amended from time to time. The Licensee shall agree that the arbitral


tribunal shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the Site Sharing Agreement and those relating to procedural matters under the arbitration) and that any arbitral award or results under this condition of licence shall be final and binding with no right of appeal, subject to applicable provincial or territorial legislation. The Licensee must participate fully in such arbitration and follow all directions of the arbitral tribunal in accordance with Industry Canada’s Arbitration Rules and Procedures and any arbitration procedures established by the arbitral tribunal.

70. This proposal would reduce the timeframe for parties to have recourse to

arbitration from 90 days to 60 days from the date a licensee receives a Proposal to

Share from a requesting operator if the parties have not entered into a Site Sharing

Agreement. In its Comments, TELUS noted that this proposal is coordinated with

proposal 5-7 to have Offers to Share automatically expire after 60 days. TELUS

viewed these proposals as reasonable and consistent because they would create

certainty in the future course of dealings with respect to the site. The options for

the parties would be

(1) to extend the timeline for negotiations, by renewing the Offer to

Share,

(2) to execute the conditional approval letter, thereby reserving the

proposed elevations,

(3) to arbitrate the dispute, or

(4) to allow the Offer to Share to lapse automatically.

71. Most of the parties support this proposal. MTS Allstream requests a stipulation

that a complete Proposal to Share must be submitted by the requesting operator, a

condition to which TELUS agrees. TELUS does not support Bell’s position that

the timeline be reset if negotiations are delayed because of inactivity, in that the

options outlined above clearly indicate the ramifications of inactivity, and all

parties should govern themselves accordingly. Similarly, if SaskTel is concerned

that 60 days is insufficient to complete negotiations with an entity that it does not


already share sites, it could ask the other party to extend the negotiation period as

necessary.

5-6: Industry Canada is seeking comments on the proposed new text to be inserted into the Conditions of Licence for Mandatory Antenna Tower and Site Sharing. For each site where the licensee operates an antenna mounted on an antenna-supporting structure (the tower), the licensee must make the tower information listed below available to all parties that may be interested in seeking a sharing agreement, in addition to Industry Canada. Licensees must provide any updates on a monthly basis. (1) unique site identifier (standardized to include identification of tower owner) (2) site location details (latitude/longitude and civic address) (3) tower height and type (monopole, self-support, etc.) (4) a tower loading profile, including all antennas on the tower, spaces reserved for imminent future use and the summary of existing leases (5) for space reserved for imminent future use, the date on which the space was identified as such (6) contracted third party lease arrangement contacts (7) compound layout (8) tower foundations design (9) Transport Canada and/or NAV CANADA form(s) (10) site access information, such as contacts, procedures and specific restrictions related to a site visit In addition to the new wording proposed above, comments are also being sought on the following: (a) How should tower information be made available? - Individual licensee responsibility to post information on their own websites; - An industry-led initiative to develop and manage a database accessible to parties; - Expansion of the site upload data currently collected by Industry Canada. (b) Are there additional data elements that are required to further facilitate the PIP stage of the tower sharing process?

72. TELUS noted a number of technical, practical and confidentiality issues with this

proposal. As a result of these issues, TELUS proposed that any inventory of site

data be limited to the first three items listed in proposal 5-6, namely the unique

site identifier, the site location details and tower height and type, with any

database being managed by Industry Canada.


73. WIND and Mobilicity support the proposal. Given that these two parties do not

have a substantial number of sites for sharing, their information disclosure and

potential confidentiality concerns are not representative of the industry.

74. In contrast, industry participants that operate a number of existing sites oppose the

proposal. Rogers and Eastlink both state that the proposal would be onerous.

MTS Allstream and SaskTel note that some information is not compiled or that

information is not available for all towers. Bell has concerns about information

that had confidentiality concerns. Videotron makes similar comments,

disagreeing with providing summaries of existing leases, dates reserved for future

imminent use and site access information.

75. In light of the above, there is substantial opposition to many of the disclosure

requirements contemplated in this proposal. Many parties agree with TELUS that

information beyond the three categories identified by TELUS would impose

unattainable objectives on licensees because the information might not be readily

available in any commercially-reasonable manner or by virtue of potential

breaches confidentiality agreements. As a result, should Industry Canada decide

that an industry-wide database be implemented, that database should be

maintained by Industry Canada and limited to the three pieces of information that

TELUS has agreed to disclose, given that they are are non-controversial and

should be obtainable on a commercially-reasonable basis.

5-7: Industry Canada is seeking comments on the proposed new text to be inserted into the Conditions of Licence for Mandatory Antenna Tower and Site Sharing. If within 60 days, the Licensee has not received a response from the Requesting Operator to an Offer to Share, the Licensee may treat the Offer to Share as withdrawn with no further obligations.

76. TELUS agreed with this proposal in light of proposal 5-5. The combinations of

these proposals would provide a clear and consistent framework within which

parties would conduct site sharing negotiations. As noted above, parties would be


able to determine if they needed additional time for negotiations and could make

arrangements such that this 60-day period is extended.

5-8. Industry Canada is seeking comments on the proposed new text to be inserted into the Conditions of Licence for Mandatory Antenna Tower and Site Sharing. Specifically, should licensees be required to report on additional information? If so, what other information should be included?

The licensee must provide to Industry Canada a standardized report containing all tower

sharing requests initiated and received, including: the unique site identifier site location details (latitude/longitude and civic address) name of tower owner or licensee requesting to share the date that the preliminary information package (PIP) request was sent or received the date that a Proposal to Share was sent or received the date that an Offer to Share was sent or received the date that an agreement was reached or the date and reason why the request was

withdrawn/denied The report is to be submitted to Industry Canada semi-annually (end of March and

September) every year.

77. TELUS disagreed with this proposal for a number of reasons. First, TELUS

noted that simply collecting information about timelines to complete negotiations

for site sharing, without any acknowledgement of prioritization of sites, offers

little insight into the actual negotiation process. Given that some sites will be

more important than others, it is understandable if parties focus their efforts of

more critical sites first, allowing less important sites to lag or even to be

withdrawn entirely, with little impact on the ability of the requesting operator to

provide service. The fact that timelines might vary between sites simply does not

provide the basis for any meaningful conclusions.

78. TELUS also noted its concern with a lack of a common understanding of the

terms of reference. The date the PIP request was sent does not coordinate well

with the proposal to create a PIP database (another administrative burden of

limited utility). The Offer to Share may or may not include alternative elevations

provided by the tower owner, depending on how the tower owner frames the


response. The information on why a request was withdrawn or denied will

typically not be available to one of the parties, and if they do record the

information, their records may not coincide.

79. Many parties oppose the proposal for the same reasons as did TELUS. Bell states

that it would amount to “needless” regulation. Eastlink is also opposed, calling

the requirement onerous and SaskTel asks that any reporting should be made on

an annual basis only.

80. Of the parties that supported the proposal, none of them addressed the concerns

raised by TELUS. As a result, unless these parties can provide a methodology as

to how to avoid the problems that TELUS has noted, the reporting obligations

should not move forward as proposed. Instead, should Industry Canada require

the reporting obligations, TELUS asks that Industry Canada provide clear

guidance on the terms of reference and an implementation period so that all

carriers have the ability to set up the record keeping requirements that are entailed

by this proposal. TELUS would propose that an implementation period of six

months be included.

5-9. Industry Canada invites suggestions from stakeholders on additional measures (other than those discussed above) to further increase the effectiveness of mandatory tower and site sharing.

81. Eastlink raises concerns about Industry Canada’s current requirement from Client

Procedures Circular 2-0-03 that outlines that carriers are “not normally expected

to build new antenna-supporting structures where it is feasible to locate their

antenna on an existing structure.” In some cases, carriers face unreasonable

conditions imposed by landlords should they co-locate on another carrier’s

facilities. TELUS shares the concerns raised by Eastlink and asks that Industry

Canada amend Client Procedures Circular CPC 2-0-03 to allow carriers to

consider other options should co-location conditions imposed by landlords be

commercially unreasonable.


82. Rogers and Bell both comment about requesting operators cancelling requests.

These cancellations impose a significant burden on the licensee because it

undertakes activities to examine the submitted requests, only to have these

activities go to waste. Rogers proposes that reasonable fees be authorized for

processing PIP requests submitted, which would create a financial incentive for

efficient operations. TELUS agrees with this proposal in that it will ensure that

site sharing requests are made based on a substantial intention to proceed, as

opposed to blanket requests designed to create placeholders for potential future

site requirements.

83. Finally, Eastlink requests that Industry Canada actively enforce the 120-day

timeline for municipal land use authorities to complete consultations on proposed

new sites. TELUS endorses this request because it ensures that consultations are

completed within the timelines so that new sites can be constructed efficiently.

This would reduce delays that are currently encountered with certain local

authorities that do not accept Industry Canada’s jurisdiction over tower siting

issues.


Section 6 – Arbitration

84. As noted in its Comments, TELUS supports the use of arbitration where parties

have not reached agreements. Recourse to private arbitration is a well-known and

well-used practice in many other commercial settings, and the current rules

establish a fair and transparent process for both parties. As a result, TELUS

stated its agreement with Industry Canada’s general approach in this consultation

that no major changes to the arbitration principles need to be considered at this

time.

85. Some parties, such as Eastlink, SaskTel and WIND, ask that the responsibility to

settle disputes about roaming be moved to the CRTC. Such a move would only

make sense if mandated roaming and tower sharing were provided on the basis of

CRTC-approved rates and tariffs. TELUS has opposed CRTC rate regulation in

both its Comments and in these Reply Comments because it would be highly

interventionist, requiring complex costing and policy proceedings to set wholesale

rates.

86. Without CRTC-approved rates, there is no basis for CRTC dispute resolution.

This is because the CRTC would only be playing an arbitrator’s role over failed

commercial negotiations, which would put it in the same position as a commercial

arbitrator. CRTC has never been involved in these types of disputes to date and

there is no reason to believe that it would have any more expertise in this area

than commercial arbitrator. The CRTC’s expertise is in setting wholesale rates in

a regulated environment, which is not the same situation as here. For similar

reasons, there is no basis for Industry Canada to arbitrate disputes, as WIND

suggests.

87. TELUS stated in its Comments that the reticence of some parties to use arbitration

is most likely explained by an apprehension of seeing commercial terms imposed,

rather than negotiated. For its part, Shaw notes that some new entrants were

averse to arbitration based on its perceptions that the process would not be

effective.


88. The fact that certain industry participants might fear the outcome of arbitration by

an independent tribunal is certainly not an indicator that the arbitration process is

unfair or ineffective. Opposition to arbitration derived from a disagreement with

a commercially-based rate-making process should not be validated in this

Consultation.

6-2-1: Industry Canada is seeking comments on the proposed revised arbitration timelines noted in Table 1.

89. The above proposed changes would reduce the timeframes for a number of steps

in the arbitration timelines. In its Comments, TELUS noted that Industry Canada

had proposed new arbitration process timelines to alleviate concerns that

submitting disputes to arbitration was not practical because rulings could take too

long. However, TELUS indicated its concern that reducing timelines would

impede the parties in their presentation of evidence in order to obtain a fair

hearing. In TELUS’ view, the current timelines are already very constrained and

that the proposal is both unnecessary and of limited use if the new timelines are

Table 1: Proposed revised arbitration timelines Timelines

Current Proposed 1. Notice served to party 2. Appointment of tribunal where no agreement (includes obtaining list, selecting arbitrator and tribunal)

Up to 20 days Up to 10 days

3. Procedural hearing Up to 15 days Up to 15 days 4.(a) In the case of an oral hearing: Up to 48 days Up to 45 days 4.(b) In the case of a written hearing:


5. Award rendered Up to 15 days Up to 15 days Approximate total time if oral hearing


Approximate total time if written hearing



not workable. Bell and SaskTel agree with TELUS that no changes to the

expected timelines should be made.

90. Some parties, such as Shaw, WIND,5

6-2-2: Industry Canada is seeking comments on the proposed new text below to be incorporated into the arbitration rules. Industry Canada also invites suggestions from stakeholders on any other clarifications which would further increase the effectiveness of Industry Canada’s Arbitration Rules and Procedures.

Public Mobile, Videotron and Mobilicity,

agree with the proposed reduced timelines. While these parties desire for reduced

timelines, none of them actually articulate whether these timelines would be

realistic in practice. While everyone can wish for faster timelines in an arbitration

process, that does not mean that such timelines are achievable. As a result, these

positions amount to wishful thinking rather than a considered view on the matter.

Text to be added to the Arbitration Rules in CPC-2-0-18 (new text is in bold): Rule 2.1: The Rules apply to disputes (other than disputes regarding technical feasibility) between Parties preventing them from agreeing upon the final terms and conditions of a Site Sharing Agreement or Roaming Agreement. The Arbitration Tribunal may hear together and consolidate disputes relating to more than one Site Sharing Agreement or Roaming Agreement. Rule 11.8: At any time during the arbitration process, the Arbitral Tribunal may require any Party to provide further evidence or submissions, including information on comparable terms and rates, in such a manner as it determines. Rule 12.5: (new rule) An award under these rules does not create a binding precedent in relation to other disputes.

91. TELUS agrees with all of the proposed changes noted by Industry Canada. All of

the parties that commented on these proposals also supported the changes, subject

5 WIND has proposed that arbitration be limited to only tower/site sharing disputes.


to some minor clarifications. These clarifications include Bell’s concerns that any

evidence disclosure respect and observe any confidentiality rights that third-

parties might have. In addition, Mobilicity, Eastlink and Bell noted that any

consolidation of disputes must be between the same two parties, with Bell further

noting that the issues must have sufficient commonality. TELUS supports these

clarifications.

92. In light of the above, these proposals should be implemented by Industry Canada,

along with the clarifications noted by the parties.

6-3. Industry Canada invites suggestions from stakeholders on additional measures (in addition to those discussed above) to further increase the effectiveness of the arbitration process for mandatory tower/site sharing and roaming.

93. Bell requests that the presumption be that an arbitration tribunal be composed of a

three-member panel, rather than a single member. TELUS disagrees with this

proposal in that it will only increase the costs associated with arbitration. In

addition, it adds complexity because with three arbitrators, setting mutually

convenient schedules for the parties and the panel will become more difficult

logistically.

94. SaskTel asks that arbitration allow for a right of appeal. At present, the

Arbitration Rules6 state that awards are treated as final and are not subject to

appeals to courts or other bodies unless the parties have otherwise agreed.7

95. Finally, Videotron asks that the rules be clarified to eliminate preliminary

arguments regarding the jurisdiction of the arbitral tribunal to hear a particular

dispute. Considering that jurisdiction is fundamental to any judicial process, the

TELUS recommends that SaskTel’s proposal be dismissed because appeals would

add uncertainty to the arbitration process and will only lengthen disputes that have

already been resolved.

6 Industry Canada’s Arbitration Rules and Procedures, Client Procedures CircularCPC-2-0-18,

November 2008. (the “Arbitration Rules”). 7 Rule 12.4, Arbitration Rules.


proposal would require that jurisdictional issues be heard in conjunction with the

hearing on the merits. The jurisdiction of an arbitral tribunal is very broad in the

Arbitration Rules. In particular, the Arbitration Rules state that arbitration can

involve “disputes (other than disputes regarding technical feasibility) between

Parties preventing them from agreeing upon the final terms and conditions of a

Site-Sharing Agreement or Roaming Agreement.

96. Given the generality of the scope of potential disputes that can be submitted to

arbitration, TELUS is unsure why Videotron has raised this concern.

Furthermore, requiring the parties to an arbitration to develop their evidentiary

record while the jurisdiction of the tribunal is in dispute would be wasteful.

TELUS recommends that Videotron’s proposal be rejected.

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