In a recent
post, we discussed how two recent Ontario electricity
distribution rate applications touched off disputes over the pole
attachment fees being charged to cable and telecommunications
companies (Carriers). In each of the two cases (Toronto Hydro and
Hydro One), the applicant sought substantial increases to the pole
attachment fees. As a preliminary matter within one of those cases
(Toronto Hydro), the OEB
determined that it has jurisdiction to set these
charges in a rate case. However, there was an outstanding question
about whether the significant increases being sought by the
applicants were just and reasonable.
The new pole attachment fees to be charged by Toronto Hydro have
now been agreed upon between the affected stakeholders, including
the Carriers. A
Settlement Proposal has been filed with the OEB, with
support from OEB staff. Assuming that the Settlement
Proposal is approved by the OEB, Toronto Hydro's pole
attachment fees (per pole, per year) will increase from $22.35 to
$42, as compared to the applied-for amount of around $66.49.
Hydro One's case is ongoing. As we previously explained, an
increased pole attachment fee (from $22.35 to around $37) was
earlier approved as part of the overall decision in that case.
Shortly thereafter, a wide range of Carriers strongly objected to
the increase, and asserted that they had not received appropriate
notice of the rate proceeding. The Carriers brought a motion
seeking leave to ask the OEB to review and vary the Hydro One
The OEB has now issued its
decision, finding that the Carriers are
permitted to bring a motion requesting that the OEB review and vary
the Hydro One decision in relation to pole attachment fees. In
coming to this decision, the OEB found that the Carriers had not
received adequate notice of the potential impacts to them from the
Hydro One application. As a result, the OEB has allowed that the
question of whether the new Hydro One pole attachment fees are
appropriate can be re-opened through a motion to review and vary.
In coming to this determination, the OEB noted that "[t]he
quantum of the Pole Access Charge increase may or may not be
appropriate but that question can only be answered with the
affected parties present."
As a result, the appropriate level of pole attachment fees for
Hydro One will be determined in subsequent proceedings. It seems
fair to assume that this may be influenced by the Settlement
Proposal in the Toronto Hydro case.
An important reminder from the OEB's decision on the
Carriers' preliminary motion is that notice must be given by an
applicant to all parties who will be directly impacted by relief
sought in an application. Indeed, even where the applicant follows
the OEB's directions and provides notice to those affected
parties identified by the OEB in a Letter of Direction or Notice of
Hearing, that may not be sufficient. Where an applicant is aware
that there are additional parties who will be directly impacted by
the application (for example, landowners or non-ratepayer groups
paying charges for utility services), it is advisable to provide
notice of the application to those parties. This will avoid the
scenario where such parties emerge after the proceeding, seeking to
have the case re-opened.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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