IN THE MATTER OF
the Utilities Commission Act, R.S.B.C. 1996, Chapter 473
and
An Application by Strata Plan VR1104
for an Exemption from Regulation as a Public Utility
BEFORE: D.M. Morton, Commissioner June 14, 2012
O R D E R
WHEREAS:
A. On September 7, 2010, Strata Plan VR1104 applied to the British Columbia Utilities Commission (Commission) for an Order exempting it from regulation as a public utility under subsection 88(3) of the Utilities Commission Act (UCA) (Application);
B. Strata Plan VR1104 owns a building located at 1127 Barclay Street, Vancouver, British Columbia (Premises);
C. Strata Plan VR1104, as landlord and lessor, has granted TM Mobile Inc. and Telus Communications Company (Telus) a lease for a portion of the Premises (Site);
D. As tenant and lessee of the Site, Telus uses the rooftop of the Premises for a cellular relay station. Telus installed equipment, devices and facilities for the purpose of carrying on its business as a telecommuni-cations service provider;
E. Strata Plan VR1104 and Telus have a confidential site lease agreement for a period of more than five years;
F. Strata Plan VR1104 is responsible for invoicing Telus for the electricity usage based on the measured consumption from a sub-meter;
G. The UCA defines a “public utility”, in part, as “a person, or the person’s lessee...who owns or operates in British Columbia, equipment or facilities for the production, generation, storage, transmission, sale, delivery or provision of electricity...to or for the public or a corporation for compensation.” The definition excludes “a person not otherwise a public utility who provides the service or commodity only to the person or the person’s employees or tenants, if the service or commodity is not resold to or used by others”;
H. A “tenant” for the purposes of the UCA “does not include a lessee for a term of more than 5 years”;
I. Since Telus is a tenant with a lease greater than 5 years, Strata Plan VR1104 is a public utility as defined by the UCA;
J. BC Hydro requires Strata Plan VR1104 to enter into an Agreement For Resale Of Metered Electricity;
K. The Telecommunications Act S.C. 1993, c. 38 defines “telecommunications service provider” (TSP) as “a person who provides basic telecommunications services, including by exempt transmission apparatus.” Telus qualifies as a TSP;
L. Potentially other landlords in similar factual situations to Strata Plan VR1104 are reselling electricity to TSPs who are also tenants of the respective landlords;
M. Subsection 88(1) of the UCA allows the Commission to make an order, rule or regulation apply to all cases, or to a particular case or class of cases, or to a particular person;
N. For the
purposes of this Order, the Commission considers the class of cases to be that
where a person resells electricity to a tenant who is a TSP, including a tenant
who is a lessee for a term of more than 5 years and where the lease is for the
purpose of allowing the tenant to operate and maintain the telecommunications
equipment, devices and facilities of the tenant on the premises of the person;
O. Subsection 88(3) of the UCA provides that the Commission may, with the advance approval of the Lieutenant Governor in Council (LGIC) and on conditions it considers advisable, exempt a person, equipment or facilities from the application of all or any of the provisions of the UCA, or may limit or vary the application of the UCA;
P. In Order in Council No. 368, dated May 31, 2012, attached as Appendix 1 to this Order, the LGIC grants advance approval to the Commission to exempt, from Part 3 of the UCA, the class of cases where a person, not otherwise a public utility, purchases electricity from a public utility and resells the electricity to a tenant, including a tenant who is a lessee for a term of more than 5 years, who is
(1) a telecommunication service provider, and
(2) leasing the person’s premises so that the tenant can operate and maintain telecommunications equipment, devices and facilities for the purpose of carrying on business as a telecommunications service provider;
Q. The Commission has considered the Application and has determined that exempting a person who resells electricity to a tenant who is a TSP, including a tenant who is a lessee for a term of more than 5 years and where the lease is for the purpose of allowing the tenant to operate and maintain the telecommunications equipment, devices and facilities of the tenant on the premises of the person, for the purpose of carrying on business as a telecommunications service provider, from certain provisions of the UCA is in the public interest.
NOW THEREFORE pursuant to subsections 88(1) and 88(3) of the Utilities Commission Act, the Commission orders as follows:
1.
Subject to Directives 2 through 4 of this Order,
a person, not otherwise a public utility, who purchases electricity from a
public utility and resells electricity:
i.
to a tenant who is a telecommunications service provider including a
tenant who is a lessee for a term of more than 5 years; and
ii. where the lease is for the purpose of allowing the tenant to operate and maintain its telecommuni-cations equipment, devices and facilities on the premises of the person, for the purpose of carrying on business as a telecommunications service provider,
is exempt from Part 3 of the Utilities Commission Act.
2. The exemption of a person referred to in Directive 1 of this Order remains in effect for that person until the Commission, after a hearing on its own motion or after a hearing on a complaint by an interested person for which sufficient notice has been given to the persons the Commission believes may be affected, orders that the exemption no longer applies to the person referred to in Directive 1 of this Order.
3. The exemption of a person referred to in Directive 1 of this Order only applies to that person if:
i.
The telecommunications service provider falls within the definition of
telecommunications service provider in the Telecommunications Act S.C.
1993, c. 38 or as that definition may be amended from time to time; and
ii. The person files
(a) a fully executed agreement for resale of metered electricity between the person and the local electric utility, and
(b) information that allows the Commission to determine that this Order applies to the person,
with the Commission within 45 days of execution of the agreement for resale of metered electricity; and
iii. The Commission accepts the filing of the items referred to in Directive 3(ii) of this Order after determining this Order applies to the person;
iv. The person charges an amount for the supply of electricity that is no greater than its actual costs incurred for the consumption of electricity by the telecommunications equipment, devices and facilities of the telecommunications service provider; and
v. The person operates and maintains in a safe and proper manner, consistent with the requirements of the applicable regulatory authorities, any equipment, devices and facilities owned by the person necessary to supply electricity to the telecommunications equipment, devices and facilities on the premises of the person that are owned by the telecommunications service provider.
4. A person to whom the exemption referred to in Directive 1 of this Order applies must advise the Commission, in writing, of:
(1) the termination of the lease with the telecommunications service provider, or
(2) the termination of the agreement for resale of metered electricity with the local electric utility, whichever occurs first, within 45 days of termination.
DATED at the City of Vancouver, in the Province of British Columbia, this 14th day of June 2012.
BY ORDER
Original signed by:
D.M. Morton
Commissioner
Attachment