In the descriptive section of the Industry Canada Regulatory Impact Statement, this test is described as:
Forbearance can occur in a residential market if there are, in addition to the incumbent, at least two independent facilities-based telecommunications services providers, including providers of mobile wireless services, each of which offers services in the market and is capable of serving at least 75% of the number of residential lines that the incumbent is capable of serving in that market, and at least one of which, in addition to the incumbent, is a facilities-based, fixed-line telecommunications service provider.
But, in the actual Order, the phrase is slightly different, changing the general term “services” to specify “local exchange services”:
… if the ILEC offers residential local exchange services, there are, in addition to the ILEC, at least 2 independent facilities-based telecommunications service providers, including providers of mobile wireless services, each of which offers local exchange services in the market and is capable of serving at least 75% of the number of residential local exchange service lines that the ILEC is capable of serving, and at least one of which, in addition to the ILEC, is a facilities-based, fixed-line telecommunications service provider [emphasis added]
Does the clause “each of which offers local exchange services” also apply to the clause “providers of mobile wireless services”?
The phrase “local exchange service” has a specific meaning by the CRTC. Recently, it appears in the CRTC’s VoIP Decision as “local exchange service (i.e. PES or local VoIP service)”. In the Decision that was the subject of the Cabinet variance order, “Local exchange services have, historically, been provided on a monopoly basis by the incumbent local exchange carriers (ILECs).”
By definition at the CRTC, most of Canada’s mobile service providers do not generally provide local exchange services, presumably unless they are also CLECs, such as Fido.
Considering how some significant dollars have depended on the regulatory interpretation on a lowly comma, will the phrase “local exchange service” create anxious moments?