ARCHIVED - Decision CRTC 2001-635

Decision CRTC 2001-635

Ottawa, 3 October 2001

Mr. Mark Kolesar
Assistant Vice-President
Regulatory and Public Policy
TELUS Communications Inc.
421, 10020 100 Street NW
Edmonton, ALTA
T5J 0N5

Dear Mr. Kolesar:

Subject: TELUS' application to review and vary Decision CRTC 2001-582

Please find below the text of the Commission's ruling, delivered orally on 3 October 2001, at the Price Cap Review public hearing:

The following is the ruling of the Commission on the application, dated 21 September 2001, by TELUS Communications Inc. (TELUS), seeking to review and vary a portion of Decision CRTC 2001-582. The Commission has considered the application, as well as the opposing comments filed by AT&T Canada Corp. ("AT&T") and GT Group Telecom Services Corp. ("Group Telecom") dated 27 September 2001, and the reply filed by TELUS dated 28 September 2001.

For the reasons that follow, the Commission hereby denies the review and vary application. The Commission, therefore, finds it unnecessary to make a determination on TELUS' request for an interim stay of that decision.

Background

In Interrogatory Response TELUS(CRTC)26 Jun01-1302 (Interrogatory 1302), TELUS filed in confidence information in support of its position regarding the state of competition in Canada. Decision 2001-582, among other things, ordered TELUS to make public information which it had filed in confidence in its answer to Interrogatory 1302.

AT&T and Group Telecom requested disclosure of the information in question, and TELUS filed a reply, opposing the requests.

By letter dated 8 August 2001, Commission staff said that Tables 1, 2 and 3 of Interrogatory 1302 were to be provided on the public record.

By letter dated 13 August 2001, TELUS advised the Commission that it would not be placing the information on the public record because:

[t]he information in question (analyses developed by NBI/Sone & Associates and by Lemay-Yates & Associates) is protected by copyright. TELUS does not have permission of the copyright holders to release this information to the public. Public disclosure of this information, as directed in the Staff Letter, will infringe the rights of the copyright holders.

Because the Staff Letter does not have the effect of a Commission ruling, TELUS may be liable for infringing the rights of the copyright holders without having recourse even to the potential defense that the disclosure was compelled by the order of a court or tribunal of competent jurisdiction. TELUS is therefore asking for a Commission ruling on this matter.

On 10 September 2001, the Commission issued Decision 2001-582. Regarding Interrogatory 1302, the Commission stated:

The Commission considers that the information filed in confidence in response to interrogatory TELUS(CRTC)26Jun01-1302 (local competition market analyses developed by NBI/Sone & Associates and by Lemay-Yates Associates) is relevant to this proceeding, and that it would be appropriate for all parties to have an opportunity to review and respond to it. Accordingly, TELUS is directed to file, on the public record, the requested information in the response to interrogatory TELUS(CRTC)26Jun01-1302.

Subsequently, TELUS revised its answer to Interrogatory 1302, by removing Table 3. TELUS, not having removed Tables 1 and 2, filed a review and vary application with respect to those Tables.

TELUS' arguments

TELUS submits that there is substantial doubt as to the correctness of the Commission's determination for the following reasons: (1) the Commission erred in law in not providing adequate reasons for its decision; and (2) the Commission erred in law by failing to consider all of the factors in exercising its discretion.

TELUS noted the Commission's statement that the information filed in confidence was relevant to the proceeding and that it would be appropriate for all parties to have an opportunity to review and respond to it.

According to TELUS, the Commission did not provide "adequate reasons for its determination that the public interest in revealing the proprietary information of NBI/Michael Sone & Associates outweighs the specific direct harm that would accrue to TELUS and to NBI/Michael Sone & Associates". As part of its submissions, TELUS suggested, among other things, that disclosure would result in harm to itself and NBI/Michael Sone & Associates.

The Commission notes that the onus is on an applicant to demonstrate that there is substantial doubt as to the correctness of the decision that it seeks to review and vary.

The Price Cap Review proceeding is a significant public proceeding in which the Commission will be determining the future regulatory framework for TELUS and the other large telephone companies. The information the Commission required TELUS to disclose had been filed by the company, in that proceeding, to buttress its position on the state of competition. The state of competition is an issue in the proceeding because it is relevant to the degree of pricing flexibility that should be accorded to TELUS and the other telephone companies.

The Commission notes that in Decision 2001-582 it found that the information in question was relevant to the proceeding and the Commission also found that it would be appropriate for all parties to have an opportunity to review and respond to that information. These reasons supported the Commission's determination that in the circumstances any specific direct harm was not sufficient to outweigh the public interest in disclosure of the information upon which TELUS was relying.

With regard to TELUS' argument that requiring disclosure of the information in question may foreclose the use of third party information in future proceedings, the Commission notes that in the past the Commission has, where appropriate, required disclosure of third party information. Furthermore, to not require disclosure on the basis of an agreement between TELUS and a third party would create an opportunity for abuse and impair the Commission's ability to conduct open and transparent public proceedings.

The Commission notes, in passing, that the fact that it came to a conclusion with which TELUS disagrees does not amount to a failure to consider relevant factors or to provide adequate reasons.

In light of the above, the Commission considers that TELUS has failed to demonstrate that the Commission has committed an error of law. Accordingly, the Commission finds that there is no substantial doubt as to the correctness of Decision 2001-582 and therefore dismisses TELUS' application to review and vary that Decision. If TELUS no longer wishes to rely on the information in question it can revise its answer to Interrogatory 1302 by withdrawing Tables 1 and 2. Otherwise, pursuant to Decision 2001-582, TELUS must place the information in question on the public record by the close of the hearing on 4 October 2001.

Yours sincerely,

Ursula Menke
Secretary General

cc. Interested parties, PN 2001-37

Date Modified: 2001-10-03