ARCHIVED - Letter

Ottawa, 29 September 2009

Mr. Hank Intven

McCarthy Tétrault LLP

Box 48 , Suite 5300

Toronto Dominion Bank Tower         

Toronto , Ontario

M5K 1E6

Dear Mr. Intven

RE:   REDACTED TRANSCRIPTS: Proceeding to consider the compliance of Globalive with the ownership and control regime, Telecom Notice of Consultation CRTC 2009-429

Attached is a redacted transcript of the in camera session that took place 24 September 2009 .

The Commission has redacted any information over which confidentiality has already been claimed and granted in previous confidentiality claims by Globalive Wireless Management Corp. (Globalive).

In a letter to the Commission dated 28 September 2009 , Globalive requested that further information be redacted from the transcript.

In evaluating confidentiality claims filed pursuant to subsection 39(1) of the Telecommunications Act (the Act), an assessment is made as to whether there is any specific direct harm likely to result from the disclosure of the information in question. In making this evaluation, a number of factors are taken into consideration, including the degree of competition that exists in a particular market or that is expected to occur. All things being equal, the greater the degree of actual or expected competition, the greater the specific direct harm that could be expected to result from disclosure. Another factor is the expected usefulness of the information at issue to parties in furthering their competitive position.

Even where specific direct harm may result, this harm must be balanced against, and outweigh the public interest in disclosure, in order to qualify for confidentiality. In certain circumstances, specific direct harm from disclosure may still be outweighed by the public interest in disclosure.

Having regard to the above, the Commission has determined that no specific direct harm would likely result from disclosure, or that the public interest in disclosure outweighs any specific harm that might result from disclosure, of the information disclosed in the attached redacted transcript.

With respect to Globalive's specific claims, the Commission determines as follows:

Transcript page 11, line 5 [¶67] to page 21, line 12 [¶130]. This discussion provides information that could cause specific direct harm to Globalive in its dealings with another agency of the Government of Canada. The release of this information would also prejudice Globalive's bargaining position with respect to other suppliers of consulting services and assist competitors in understanding Globalive's consulting service procurement strategies. The same claim relates to: Transcript page 108, line 19-page 109, line 1-2[?567]Transcript page 111, line 15-18 [¶576]; Transcript page 127, line 18 [¶660] to page 128, line 5, [¶662]; Transcript page 130, line 2-4[?672] and Transcript page 132, line 15 [¶687] to page 135, line 10, [¶699].

Request granted in part. A portion of this information relates to the nature of certain relevant agreements. The harm (if any) which would result from disclosure would not outweigh the public interest in its disclosure.

Transcript page 67, line 20 [¶397] to page 91, line 12 [¶483]. The draft redactions protect some confidential portions of a long discussion on Globalive's financing efforts and plans, while disclosing other portions. While the Commission has previously ruled that information related to these financing efforts and plans were confidential, the draft now attempts to provide a ‘Swiss cheese' approach to the subject. Globalive submits that this type of piecemeal disclosure serves no useful purpose in assisting the incumbents in making their arguments on the merits of the issues. It only serves to provide them with information to speculate (perhaps accurately) about the contents of the redacted portions, and/or to provide meaningless interlocutory comments.

Request granted in part. Some of this information relates to the market positions of various incumbent corporations as well as the timeline of the reviews of Globalive by Industry Canada and CRTC, all of which is publicly known. The harm (if any) which would result from disclosure would not outweigh the public interest in its disclosure.

In another case, the information disclosed clearly relates to Globalive's business strategy, e.g. Transcript page 142, lines 14-18 [ ¶ 746]. Globalive's strategy in this regard is clearly sensitive commercial information which should not be placed on the public record.

Request granted. The harm which would result from disclosure would outweigh the public interest in its disclosure.

Transcript page 144, line 9 [¶756] to page 145, line 15 [¶765]. The draft redactions make sufficient information public to permit the incumbents and suppliers and their competitors to guess at the content of the redacted portions. The supply arrangements Globalive has with third parties are extremely sensitive competitively, to both Globalive and the suppliers, and the latter have repeatedly requested confidential treatment. Supplier arrangements (i.e. from third parties) provide a significant strategic competitive advantage which could be seriously prejudiced by public disclosure of the details of such arrangements, or by disclosure of any information which would be prejudicial when put together with other information available to competitors.

Request granted. The harm which would result from disclosure would outweigh the public interest in its disclosure.

Transcript page 154, line 18 [¶825], Transcript page 159, line 18 [¶846], Transcript page 164, line 1 [¶866], Transcript page 182, lines 8-11 [¶968]. In the first three cases, t he draft redactions make sufficient information public to permit the incumbents and others to know the maturity dates of certain financing. The latter case relates to the method of projecting forms of financing in the Business Plan. The disclosure of the maturity dates of the debt have been kept confidential elsewhere in the proposed redactions and the disclosure of these dates would both render those other redactions meaningless and would cause specific direct harm to Globalive by allowing competitors to target it specifically at a moment when loan maturities arise.

The first three requests are not granted as they relate to information which has already been made public. The last request is granted. The harm which would result from disclosure would outweigh the public interest in its disclosure.

Transcript page 183, line 18 [¶974] to page 185, line 14 [¶983]. The draft redactions proposed to treat most of the text on these pages and the subsequent pages as confidential. The remaining lines which were proposed to be disclosed relate to Globalive's financing plans and their disclosure could cause significant direct harm to Globalive's future negotiations with other potential lenders.

Request granted. The harm which would result from disclosure would outweigh the public interest in its disclosure.

Transcript page 193, line 18 [¶1020] to page 196, line 20 [¶1034]. The draft redactions disclose detailed confidential information regarding Globalive Wireless and OT's past financing efforts, which information is relevant to their future financing plans. Disclosure of such information would damage its bargaining position and materially prejudice Globalive Wireless's ability to raise debt financing in the future.

Request granted. The harm which would result from disclosure would outweigh the public interest in its disclosure.

Yours sincerely,

Original signed by

John Keogh for /

Robert A. Morin

Secretary General

Attachment (1)

c.c. Interested Parties to the Telecom Notice of Consultation CRTC 2009-429

Date modified:

2009-10-05