Earlier in the week, I wrote about a complaint by Barrett Xplore about being denied due process in an early decision emerging from CRTC’s deferral account proceeding.
Now, MTS Allstream has expressed procedural concerns about being able to cross-examine the author of a report commissioned by the CRTC in the essential services proceeding.
In a letter to interested parties, the CRTC transmitted a preliminary copy of the substantial 137 page report but said that the final version and its French language translation would be available before the beginning of October. The Commission warned that the author would not be made available for cross-examination during the hearings:
The Commission commissioned the report as input for the review of its policies for wholesale services. This is an independent report, and neither Mr. Osborne nor his firm is involved in this proceeding.
The Commission does not intend to make Mr. Osborne available for cross-examination at the hearing, but parties will be able to use the report as they see fit (such as in cross-examination of other parties’ witnesses and in the argument phase of this proceeding).
MTS Allstream has now written to the CRTC to say that it wishes to cross examine the author:
MTS Allstream is concerned that the ability to reference the report in the cross-examination of other parties’ witnesses without the ability to first test the opinions and conclusions in the report itself, could easily lead to misunderstandings and mischaracterizations of the report and, ultimately, to a lack of procedural fairness in this proceeding.
Among the items in the report that might be worth challenging is a statement in the report at paragraph 63:
the refusal to deal provision could be characterized as an essential facilities provision of a sort, as could the misuse of intellectual property provision. The remedies for misuse of intellectual property are not relevant to telecom facilities; thus I do not address them.
Would Vonage, Sprint and Verizon agree with this statement? I can think of a few other cases of IP as an essential service in telecom. Anyone else?
Fundamentally, is procedural fairness becoming a more frequent complaint to the CRTC?
Update [October 1, 3:00 pm]
The CRTC has now officially released the Osborne Report, available here.