OTTAWA – It’s only a $700,000 piece of punctuation.
That’s the assessment that came Monday after the CRTC sided with Rogers Cable over its unusual row with Aliant over a pole attachment contract that turned sour over the placement of a single comma.
Over a year ago, Aliant ended a five-year pole attachment contract early, saying that one clause of the contract, with a poorly placed comma, actually said the company could end its contract with Rogers any time it wished, with a year’s notice. The contract called for Rogers to pay the CRTC-mandated rate of $9.60 per pole per year for the close to 100,000 poles Aliant managed which in 2002, when the contract was signed, included poles from New Brunswick Power.
However, an Ontario court decision in 2003 struck down the Commission’s regulation of pole rates for provincial power utilities, setting the power companies free to charge more. So New Brunswick Power wanted out of the Aliant-Rogers deal to take advantage of that.
The contract tiff ended up in front of the CRTC which decided last summer that Aliant was right, the contract’s comma was wrong, and that it could rip up the deal. So, Rogers has been paying New Brunswick Power a rate of $18 per pole since last summer – an additional cost of about $700,000, said Rogers Cable’s vice-president regulatory, broadband and video distribution, Pam Dinsmore (initial published reports estimated the cost at over $2 million).
Rogers immediately filed an application to review and vary the decision and submitted as its primary bit of evidence the French language version of the contract that Aliant signed, which had no comma problems and therefore no grammatical loophole. "We filed the French language version of the exact same clause which was very clear," added Dinsmore. The clause talked about a year’s notice being required prior to the fifth year in order to avoid automatic renewal of the contract.
The Commission’s decision on Monday strikes down the 2006 decision to let Aliant abort the contract. "In my experience, I haven’t seen a decision like we saw in the first instance," said Dinsmore about the examination of grammar rules in the context of a Commission decision on a commercial contract.
However, while Rogers is happy with the decision, the Commission noted that it can not apply to the NB Power poles because it has no jurisdiction over those structures. Under the former contract, however, Aliant was administering the poles and Rogers was paying $9.60 to Aliant. Dinsmore that the company has not decided what to do next but added Rogers may be forced to take Aliant to court in the province to get its overpayment back.
Going forward, though, it must pay NB Power the new $18 rate.
And while no one in the Rogers regulatory department dusted off any old high school grammar texts, expect the department to take a little more care with its contract commas. "I think there was a fair amount of examination of various sources of grammar over the course of this proceeding," added Dinsmore.
– Greg O’Brien
