*The $2-million comm**a; Rogers Communications thought it had a deal
with Aliant that was rock solid. But then Aliant changed its mind, and a
comma in the contract let them do it. Now Rogers might pay dearly for
that pesky punctuation *
The Globe and Mail <javascript:void(0)>
GRANT ROBERTSON
MEDIA REPORTER
760 words
7 August 2006
B1
English
All material copyright Bell Globemedia Publishing Inc. or its licensors.
All rights reserved.
It could be the most costly piece of punctuation in Canada.
A grammatical blunder may force Rogers Communications Inc. to pay an
extra $2.13-million to use utility poles in the Maritimes after the
placement of a comma in a contract permitted the deal's cancellation.
The controversial comma sent lawyers and telecommunications regulators
scrambling for their English textbooks in a bitter 18-month dispute that
serves as an expensive reminder of the importance of punctuation.
Rogers thought it had a five-year deal with Aliant Inc. to string
Rogers' cable lines across thousands of utility poles in the Maritimes
for an annual fee of $9.60 per pole. But early last year, Rogers was
informed that the contract was being cancelled and the rates were going
up. Impossible, Rogers thought, since its contract was iron-clad until
the spring of 2007 and could potentially be renewed for another five years.
Armed with the rules of grammar and punctuation, Aliant disagreed. The
construction of a single sentence in the 14-page contract allowed the
entire deal to be scrapped with only one-year's notice, the company argued.
Language buffs take note --- Page 7 of the contract states: The
agreement "shall continue in force for a period of five years from the
date it is made, and thereafter for successive five year terms, unless
and until terminated by one year prior notice in writing by either party."
Rogers' intent in 2002 was to lock into a long-term deal of at least
five years. But when regulators with the Canadian Radio-television and
Telecommunications Commission (CRTC) parsed the wording, they reached
another conclusion.
The validity of the contract and the millions of dollars at stake all
came down to one point --- the second comma in the sentence.
Had it not been there, the right to cancel wouldn't have applied to the
first five years of the contract and Rogers would be protected from the
higher rates it now faces.
"Based on the rules of punctuation," the comma in question "allows for
the termination of the [contract] at any time, without cause, upon
one-year's written notice," the regulator said.
Rogers was dumbfounded. The company said it never would have signed a
contract to use roughly 91,000 utility poles that could be cancelled on
such short notice. Its lawyers tried in vain to argue the intent of the
deal trumped the significance of a comma. "This is clearly not what the
parties intended," Rogers said in a letter to the CRTC.
But the CRTC disagreed. And the consequences are significant.
The contract would have shielded Rogers from rate increases that will
see its costs jump as high as $28.05 per pole. Instead, the company will
likely end up paying about $2.13-million more than expected, based on
rough calculations.
Despite the victory, Aliant won't reap the bulk of the proceeds. The
poles are mostly owned by Fredericton-based utility NB Power, which
contracted out the administration of the business to Aliant at the time
the contract was signed.
Neither Rogers nor Aliant could be reached for comment on the ruling. In
one of several letters to the CRTC, Aliant called the matter "a basic
rule of punctuation," taking a swipe at Rogers' assertion that the comma
could be ignored.
"This is a classic case of where the placement of a comma has great
importance," Aliant said.
The comma conflict
The disputed sentence: "This agreement shall be effective from the date
it is made and shall continue in force for a period of five (5) years
from the date it is made, and thereafter for successive five (5) year
terms, unless and until terminated by one year prior notice in writing
by either party."
How Rogers reads it: The contract is good for five years and is
automatically renewed for successive five-year terms. The deal can not
be terminated within the first five-year term.
How Aliant reads it: The contract can be cancelled at any time provided
one-year notice is given.
What the experts say: The presence of the second comma means the
conditions of cancelling the contract apply to both the initial
five-year term and subsequent five-year terms.
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