ARCHIVED - Telecom Commission Letter - 8663-C12-200614439

Letter

File Number: 8663-C12-200614439

Ottawa, 14 June 2007

By Electronic mail

To: Interested Parties List - PN 2006-14

Re: Review of regulatory framework for wholesale services and definition of essential service - Telecom Public Notice CRTC 2006-14

This letter addresses requests for disclosure of information filed in confidence with the Commission and for further responses to interrogatories to interested parties filed in the above noted proceeding.

On 18 May 2007, the Commission received requests for further responses to interrogatories and for disclosure of information filed in confidence from Bell Aliant Regional Communications, Limited Partnership (Bell Aliant), Bell Canada, Saskatchewan Telecommunications (SaskTel) and Télébec, société en commandite (Télébec) (collectively, Bell et al.), the Competition Bureau, Cybersurf Corp. (Cybersurf), MTS Allstream Inc. (MTS Allstream) Primus Telecommunications Canada Inc. (Primus) and Globility Communications Corp. (Globility), la Coalition Québécoise des Fournisseurs d'Accès à Internet (QCISP), Rogers Communications Inc. (Rogers), TELUS Communications Company (TCC), and Télécommunications Xittel inc. (Xittel).   On 12 June 2007 , the Commission received a subsequent request from Rogers .

On 5 June 2007, responses to the 18 May 2007 requests were received from Access Communications Co-operative Limited (Access), Agilis Networks (Agilis), Atria Networks LP (Atria) and SCBN Telecommunications Inc. (SCBN), Bragg Communications Inc. carrying on business as EastLink (EastLink), Bell et al., Cogeco Cable Inc. (Cogeco), the Competition Bureau, Cybersurf, Distributel Communications Limited (Distributel), ENMAX Envision Inc. (ENMAX), EPCOR Utilities Inc. (EPCOR), Execulink Telecom (Execulink), FCI Broadband, Hydro One Telecom Inc. (Hydro One), Maxess Networx (Maxess), MTS Allstream, Primus, Quebecor Media Inc. (QMI), Rogers, Shaw Communications Inc. (Shaw), TCC, Telecom Ottawa Limited (Telecom Ottawa), Toronto Hydro Telecom (Toronto Hydro), and Yak Communications (Canada) Corp. (Yak).

Requests for public disclosure are addressed in Part I, below, and in Attachment 1 to this letter, while requests for further responses are addressed in Part II and in Attachment 2 to this letter.

Unless otherwise expressly indicated, parties are to file with the Commission all information to be provided pursuant to this letter by 22 June 2007 , serving a copy on all interested parties by the same date.   These submissions must be received, not merely sent, by that date.

As well, in responding to requests for disclosure of information and further responses to interrogatories, some parties undertook to provide further information for the purposes of this roceeding.   Such parties are expected to fulfill such undertakings and file the information with the Commission by 22 June 2007 , serving a copy on all interested parties by the same date.   These submissions must be received, not merely sent, by that date.   For that reason, where undertakings were made they are not specifically addressed in the Attachments.

Some parties also referred to information provided in confidence to the Commission, for example data provided as input to the Commission's telecommunications industry data collection system and cable capacity reports.   This information will be relied upon as appropriate.

Part I - Requests for Disclosure

Requests for disclosure of information for which confidentiality has been claimed are addressed in light of sections 38 and 39 of the Telecommunications Act and section 19 of the CRTC Telecommunications Rules of Procedure (the Rules).   In evaluating a request, an assessment is made as to whether there is any specific harm likely to result from the disclosure of the information in question.   Further, in order to justify a claim of confidence, any such harm must be sufficient as to outweigh the public interest in disclosure.   In making this evaluation, a number of factors are taken into consideration, including the following:

The degree of competition that exists in a particular market or that is expected to occur is an important consideration in assessing requests for disclosure.   All things being equal, the greater the degree of actual or expected competition, the greater the specific harm that could be expected to result from disclosure.

Another factor in assessing the extent of harm is the expected usefulness of the information at issue to parties in furthering their competitive position.   In this regard, an important consideration is the degree to which the information at issue is disaggregated.   Generally speaking, the more aggregated the information, the less likelihood that harm will flow from its disclosure.

The expectation that specific direct harm might result from disclosure is not, by itself, sufficient to justify maintaining a claim of confidentiality.   In certain circumstances, substantial harm from disclosure may still be outweighed by the public interest in disclosure.

Finally, the treatment of confidentiality requests should not be taken as an indication of the manner in which such matters would be dealt with in the future in different circumstances.

The Competition Bureau has requested that the Commission issue an order:

• requiring parties to respond fully to the Competition Bureau's interrogatories and to provide the Competition Bureau with the information claimed to be confidential as described in its 18 May 2007 request, subject to an undertaking by the Competition Bureau to treat all such information as confidential; and
  
• stating that parties would not be required to place competitively sensitive information provided to the Competition Bureau on the public record.

To the extent that the information sought by the Competition Bureau is relevant to this proceeding, it is necessary to consider whether such a selective disclosure is, in the circumstances of this case, in accordance with the duty of procedural fairness.   One of the essential principles of procedural fairness is that the parties affected by a potential decision or action must know the case to be met and have a fair opportunity to respond to evidence and submissions alleged in opposition to their interests.

While the Competition Bureau itself is not adverse in interest to any of the other parties to the proceeding, the submissions it proposes to make based on the information it requested be provided to it will likely be in opposition to the interest of some or all of the other parties to the proceeding.   In the circumstances of this case Commission staff considers that it could be a breach of the duty of procedural fairness to allow selective disclosure to the Competition Bureau and, as such, the Competition Bureau's request for selective disclosure of confidential information submitted by parties is denied.

Having regard to the considerations set out above, the information filed under a claim of confidentiality in response to the interrogatories listed in Attachment 1 is, to the extent set out in that Attachment, to be placed on the public record of this proceeding.   In each case where full or partial disclosure is to occur, it is considered that the specific direct harm, if any, likely to be caused by disclosure would not outweigh the public interest in disclosure.

Part II - Requests for Further Responses

With regard to requests for further responses, the requirements of subsection 18(2) of the Rules apply.   The general principles enunciated by the Commission in past proceedings include the following considerations:

The major consideration is the relevance of the information requested to the matter at issue, and the merits of arguments made by requesting parties.

The availability of the information requested is also a factor, which is balanced against the relevance of the information.   If the provision of the information sought would require an effort disproportionate to the probative value of the information itself, further responses will not be required.

Another factor considered is the extent to which an interrogatory answer is responsive to the interrogatory as it was originally asked.   Generally, parties are not required to provide further information to a party that did not ask the original interrogatory.

Having regard to all of the above considerations, the parties in question are to provide further responses to the extent set out in Attachment 2 to this letter.

Yours sincerely,

Original signed by

Robert G. Martin
Senior Manager, Essential Services
Telecommunications
Tel:    819-953-3361
email:   robert.martin@crtc.gc.ca

Attachments

Attachment 1

Disclosure of Confidential Information

In various interrogatories as outlined below the Competition Bureau and Bell et al. were both asked to provide copies of documentation cited in their respective 15 March 2007 evidence.   In response to the interrogatories, these parties stated that copies could not be provided due either to copyright restrictions or documentation being designated as proprietary.

The Bureau(CRTC)12Apr07-110

1. R.W. Crandall, A.T. Ingraham and H. Singer (2004), "Do Unbundling Policies Discourage CLEC Facilities-Based Investment," The B.E. Journal of Economic Analysis & Policy 4: Issue 1 (Topics), Article 14.

2. R. Crandall and L. Waverman (2006), "The Failure of Competitive Entry Into Fixed-Line Telecommunications: Whose at Fault?" Journal of Competition Law and Economics 2.

The Bureau(MTS Allstream)12Apr07-102

1. NBI/Michael Sone Associates report entitled Canadian Local Telecom and VolP Services Market Report, 2006 Edition.

The Companies(MTS Allstream)12Apr07-111

1. IDC, Top IT Vendors in Canada , 2004, December 2005.

2. IDC, Telecom Inside Out: Canadian Telecommunications Forecast by Company Size, Industry and Region, 2005-2009, September 2005.

3. IDC, Consumer Market in Flux: New Services and Perspectives on Canadian Youth and Immigration, March 2006.

4. IDC, Holding Steady: Canadian Telecom Service Provider Capex Budgets 2005 2006, May 2006.

5. IDC, Who's Who 2006, October 2006.

6. IDC, Canadian Telecommunications Services 2006-2010, Forecast Telecom Inside Out, December 2006.

7. IDC, Wireless Wars 2: Canadian Wireless Forecast and Analysis, 2005-2009, November 2005.

8. IDC, Canadian Wireless Services 2006: Forecast and Analysis: Wireless Wars 3.

9. IDC, Canadian Information Communications and Technology 2006-2010 Forecast Summary, May 2006.

10. IDC Canada , Predictions 2007, Competitive Realities Increasing, January 11, 2007 .

11. LYA Canadian Consumer Telecom & Cable TV Market Forecasts 2006, February 2006.

12. NBI/Michael Sone Associates, Canadian Long Distance IXC/Resale Market Report, 2006 Edition.

13. NBI/Michael Sone Associates, Canadian Local Telecom and VoIP Services Market Report, 2006.

14. NBI/Michael Sone Associates, Canadian Internet Service Providers Market Report - 2006 Edition.

15. NBI/Michael Sone Associates, Canadian Mobile Wireless Communications Services, Market Report - 2006 Edition, December 2006.

16. NBI/Michael Sone Associates, Canadian Data Communications Services Market Report, 2006 Edition.

17. Ovum RHK, NA Enterprise Ethernet Services Will Ramp Strongly, August 2005

18. UBS, Let the Bundle Race Begin, 13 June 2005 .

19. Yankee Group, Enterprises Give Cautious Nod to IP Telephony in Canada , May 2006.

The Companies(MTS Allstream)12Apr07-138

1. 2005 Frost and Sullivan report.

The Companies(MTS Allstream)12Apr07-141

1. Standard and Poors "Industry Surveys:   Telecommunications:   Wireline".

The Companies(MTS Allstream)12Apr07-165

1. The February 2006 Merrill Lynch Report.

2. Modest WiMAX Market Grows Despite Uncertainty, Yankee Group Research, January 2007.

If the Competition Bureau and/or Bell et al. wish to rely on the information contained in these reports to support their respective positions with respect to this proceeding, then these parties are to file copies of the reports on the public record.

Alternatively, the Competition Bureau and/or Bell et al. may choose to withdraw all references to the reports from their submissions of 15 March 2007 .

The Competition Bureau and Bell et al. are to advise Commission staff of their respective decisions with respect to this matter no later than noon on 20 June 2007 .   If the Competition Bureau and/or Bell et al. wish to rely upon these reports to support their positions, these parties are to file the reports on the public record no later than 22 June 2007 .

Attachment 2

Further Responses to Interrogatories:

Parties are to provide further responses as set out below.   Parties may file information that is confidential in nature with the Commission, and provide an abridged version for the public record with an explanation for why the claim for confidentiality has been made.

Access(The Companies)12Apr07-24 part c)    Access is directed to provide a complete response to part c) of this interrogatory.

Bell  Canada (TELUS)12Apr07-2    Bell   Canada is directed to provide a complete response to this interrogatory.

Cogeco(The Companies)12Apr07-27    Cogeco is directed to provide a complete response to this interrogatory.

Cogeco(The Companies)12Apr07-28    Cogeco is directed to provide a complete response to this interrogatory.

Cogeco(Primus)12Apr07-4    Cogeco is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the names of the wholesale services sold to competitors in 2006.

Cogeco(Primus)12Apr07-7    Cogeco is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the wholesale services purchased from ILECs in 2006 by name.

Globility(The Companies)12Apr07-3 part a)    Globility is directed to provide a complete response to part a) of this interrogatory.

Globility(TELUS)12Apr07-2 parts a) and b)    Globility is directed to provide complete responses to parts a) and b) of this interrogatory.

MTS Allstream(Bureau)12April07-2 parts a) and b)    MTS Allstream is directed to provide a complete response to parts a) and b) of this interrogatory.

MTSAllstream(Rogers)12Apr07-16 part a)    MTS Allstream is directed to provide a complete response to part a) of this interrogatory.

PIAC(TELUS)12Apr07-4    PIAC is directed to provide a complete response to this interrogatory.

PIAC(TELUS)12Apr07-5    PIAC is directed to provide a complete response to this interrogatory.

QMI(Bureau)12April07-2 parts a) and b)    QMI is directed to provide a complete response to parts a) and b) of this interrogatory.

QMI(Bureau)12April07-4    Since QMI has referred to information submitted to the Commission in relation to other proceedings as its response to this interrogatory, QMI is directed to submit such information to the Commission on the record of this Public Notice 2006-14 proceeding.

QMI(The Companies)12Apr07-1    Since QMI has referred to information submitted to the Commission in relation to other proceedings as its response to this interrogatory, QMI is directed to submit such information to the Commission on the record of this Public Notice 2006-14 proceeding.

QMI(The Companies)12Apr07-21 part b)    QMI is directed to provide a complete response to part b) of this interrogatory.

QMI(The Companies)12Apr07-22    Since QMI has referred to information submitted to the Commission in relation to other proceedings as its response to this interrogatory, QMI is directed to submit such information to the Commission on the record of this Public Notice 2006-14 proceeding.

QMI(Cybersurf)12Apr07-6    QMI is directed to provide a complete response to this interrogatory.

QMI(Primus)12Apr07-3    QMI is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the names of the wholesale services sold to competitors in 2006.

QMI(Primus)12Apr07-6    QMI is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the wholesale services purchased from ILECs in 2006 by name.

QMI(Primus)12Apr07-8    Since QMI has referred to information submitted to the Commission in relation to other proceedings as its response to this interrogatory, QMI is directed to submit such information to the Commission on the record of this Public Notice 2006-14 proceeding.

QMI(Primus)12Apr07-12    QMI is directed to provide a complete response to this interrogatory.

QMI(TELUS)12Apr07-2    Since QMI has referred to information submitted to the Commission in relation to other proceedings as its response to this interrogatory, QMI is directed to submit such information to the Commission on the record of this Public Notice 2006-14 proceeding.

QMI(TELUS)12Apr07-3    QMI is directed to provide a complete response to this interrogatory.

QMI(TELUS)12Apr07-6 part b)    QMI is directed to provide a complete response to part b) of this interrogatory.

Rogers (Primus)12Apr07-4    Rogers is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the names of the wholesale services sold to competitors in 2006.

Rogers(Primus)12Apr07-7    Rogers is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the wholesale services purchased from ILECs in 2006 by name.

Shaw(Primus)12Apr07-4    Shaw is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the names of the wholesale services sold to competitors in 2006.

Shaw(Primus)12Apr07-7    Shaw is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the wholesale services purchased from ILECs in 2006 by name.

TELUS(Bureau)12April07-2 parts a) and b)    TCC is directed to provide a complete response to parts a) and b) of this interrogatory.

TELUS(Cybersurf)12Apr07-6    TCC is directed to provide a complete response to this interrogatory.

TELUS(Primus)12Apr07-3    TCC is directed to provide a complete response to this interrogatory, including disclosure, on the public record, of the names of affiliates that make no use of TCC provided services in its ILEC serving territory, and the names of affiliates that do use such services along with the names of such services.

TELUS(Primus)12Apr07-10    TCC is directed to provide a complete response to this interrogatory.

TELUS(Primus)12Apr07-11    TCC is directed to provide a complete response to this interrogatory, on the basis that the issue of net neutrality would only be evaluated within the terms of determining how it might affect the question of determining the essentiality of wholesale services.

Vonage(The Companies)12Apr07-1 part b)    Vonage is directed to provide a complete response to part b) of this interrogatory.

Xittel(The Companies)12Apr07-1    Xittel is directed to provide a complete response to this interrogatory.

In addition to the above, the following parties are directed to file their responses to other parties' interrogatories with the Commission no later than 22 June 2007 , serving a copy on all interested parties by the same date:

Enersource Telecom Inc.
Halton Hills Fibre Optics Inc.
Hamilton Hydro Services Inc.
Persona Communications Corp.
Oakville Hydro Communications operating as Blink Communications Inc.