ARCHIVED - Telecom Commission Letter addressed to various parties interested in the review of wholesale mobile wireless services, Telecom Notice of Consultation 2014-76 – Request to review and vary determinations regarding the requirement to disclose certain information filed in confidence

Ottawa, 16 September 2014                                                   

File number: 8620-C12-201401489

BY EMAIL

To: distribution list

Re: Review of wholesale mobile wireless services, Telecom Notice of Consultation 2014-76^{Footnote 1} – Request to review and vary determinations regarding the requirement to disclose certain information filed in confidence

This letter addresses applications by Bell Mobility Inc., TELUS Communications Company (TCC), and NorthernTel, Limited Partnership (NorthernTel) [collectively, the applicants] dated 11, 14, and 15 July 2014, respectively, to review, vary, and rescind in part, as well as stay the Commission’s ruling in its 3 July 2014 letter, related to the disclosure of certain information filed in confidence in the proceeding initiated by Telecom Notice of Consultation 2014-76 (the Disclosure Ruling). In that letter, the Commission directed certain wireless carriers to provide on the public record the following:

• For each of the years 2009 to 2013, total wholesale wireless revenues, broken down into the following four categories:^{Footnote 2}
  1. roaming service provided to Canadian wireless carriers;
  2. tower and site sharing agreements with Canadian wireless carriers;
  3. arrangements to provide service to Canadian MVNOs and/or MVNEs; and
  4. any other wholesale service(s) provided to other Canadian wireless carriers.
• For each of the years 2009 to 2013, total wholesale wireless expenses, broken down into the following three categories:^{Footnote 3}
  1. roaming service for their customers using other Canadian carriers’ networks;
  2. tower and site sharing agreements with Canadian wireless carriers; and
  3. any other wholesale service(s) provided by Canadian wireless carriers.

Bell Mobility’s application was specific to the disclosure of revenues and expenses for roaming and other wholesale services; TCC’s application addressed the disclosure of that data, as well as the revenues and expenses for tower and site sharing agreements. NorthernTel’s application pertained only to the public disclosure of revenues and expenses for tower and site sharing agreements.

The applicants generally submitted that there was substantial doubt as to the correctness of the Commission’s decision based on their view that the information ordered to be disclosed is highly disaggregated. They argued that the specific direct harm of disclosing this highly disaggregated information outweighed the public interest, if any, in disclosure.

Bragg Communications Inc., carrying on business as Eastlink (Eastlink); Quebecor Media Inc., on behalf of Videotron G.P. (Quebecor); Vaxination Informatique (Vaxination); and the Consumers’ Association of Canada, the Council of Senior Citizens’ Organizations of British Columbia, the National Pensioners Federation,^{Footnote 4} and the Public Interest Advocacy Centre (collectively, PIAC et al.) filed interventions. The public record of this proceeding, which closed on 13 August 2014, is available on the Commission’s website at www.crtc.gc.ca or by using the file number provided above.

In Telecom Information Bulletin 2011-214,^{Footnote 5} the Commission outlined the criteria it would use to assess review and vary applications that are filed pursuant to section 62 of the Telecommunications Act (the Act). Specifically, the Commission stated that applicants must demonstrate that there is substantial doubt as to the correctness of the original decision, due to, for example, one or more of the following: i) an error in law or in fact, ii) a fundamental change in circumstances or facts since the decision, iii) a failure to consider a basic principle which had been raised in the original proceeding, or iv) a new principle which has arisen as a result of the decision.

The applicants’ positions

Bell Mobility and NorthernTel submitted that there has been a fundamental change in facts since the Disclosure Ruling, and that a new principle had arisen as a result of that ruling. In their view, the Commission’s determination not to order Mornington Communications Co-operative Limited (Mornington) to disclose its confidential information because it was not aggregated and referred to one contract related to a single site, and could consequently affect future commercial negotiations, constituted a new principle. They argued that the “Mornington principle” was equally applicable to their confidential information which the Commission had directed be publicly disclosed. TCC submitted that the Commission’s Disclosure Ruling amounts to errors in law and fact and a failure to consider the basic principle that disaggregated information should be kept confidential.

All three companies generally submitted the data in question, which the Commission had directed to be publicly disclosed, was highly disaggregated, since the revenues and expenses were generally attributable to, and arose from, a single contract. They asserted that the information at issue is subject to confidentiality agreements and, therefore, that they consistently treat the information in a confidential manner. They further argued that the Commission has previously stated that disaggregated information would more likely result in direct harm if it was publicly disclosed. For instance, Bell Mobility submitted that release of the information could, among other things, enable competitors to price their retail offerings in such a way as to materially undermine the competitiveness of the company’s offerings, and could have adverse financial consequences for the company. The applicants further submitted that release of the information could affect future contractual and/or commercial negotiations.

TCC was also concerned about the effect of disclosing the total tower and site sharing revenues and expenses. It submitted that this information, combined with the total number of sites shared with other carriers, would provide an opportunity to calculate an average revenue per site. TCC argued that such figures could harm the company in future negotiations with other carriers, both when TCC is seeking sites to share and when it is providing site sharing.

The applicants further submitted that maintaining the confidential treatment of the information in question would not impair parties' ability to participate meaningfully in this proceeding. They argued that the impairment, if any, would be small when compared with the multiple, serious, deleterious effects of disclosure.

Interventions

Eastlink, Vaxination, and Quebecor were generally of the view that the principle used in the case of Mornington did not apply to the applicants – their information was not disaggregated since each company has agreements with more than one wireless carrier. However, regarding NorthernTel’s tower and site sharing expenses, Eastlink noted that NorthernTel reported co-locating on only one tower, such that it would be appropriate to either keep this disaggregated information confidential or aggregate it with the data of KMTS.

Eastlink and Quebecor further submitted that the applicants did not provide any new information to justify a variance of the Commission’s Disclosure Ruling.

PIAC et al. noted that in the review and vary applications, the applicants provided additional rationale for their objections to disclosure. PIAC et al. stated that, in general, they disagreed with a number of the arguments put forward against disclosure. However, PIAC et al. also noted that additional information regarding roaming caps was placed on the public record through the Commission’s letter dated 6 August 2014.^{Footnote 6} As a result, PIAC et al. stated that they did not intend to further challenge the relief sought in the review and vary applications.

Commission’s analysis and determinations

Requests for disclosure are addressed in light of sections 38 and 39 of the Act and sections 30 and following of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure. In evaluating a request, an assessment is made as to whether the information at issue falls into a category of information that can be designated as confidential pursuant to section 39 of the Act. An assessment is then made as to whether there is any specific direct harm likely to result from the disclosure of the information in question and whether any such harm outweighs the public interest in disclosure. In making this evaluation, a number of factors are taken into consideration, including the degree of competition and the importance of disclosure of the information for the purpose of allowing meaningful participation in the proceeding and obtaining a fuller record.

Roaming and other wholesale services revenues and expenses – Bell Mobility and TCC

Based on the record of this proceeding, the Commission is persuaded that the public disclosure of Bell Mobility’s and TCC’s roaming revenues and expenses and their other wholesale services revenues and expenses could have a negative impact on the companies by, among other things, prejudicing their competitive position in the market. Further, the Commission does not consider that access to this specific information is necessary in order to permit parties to meaningfully participate in the proceeding initiated by Telecom Notice of Consultation 2014-76. In this regard, the Commission considers that the ability of parties to meaningfully participate has been significantly assisted through the release, on the public record, of industry-wide average wholesale roaming caps for each of voice, text, and data.^{Footnote 7}

In light of the above, the Commission now considers that the specific direct harm likely to result from the disclosure of the information designated confidential outweighs the public interest in disclosure of this information. Accordingly, the Commission finds that there is substantial doubt as to the correctness of its direction to Bell Mobility and TCC to disclose the roaming revenues and expenses and the other wholesale services revenues and expenses. Therefore, the Commission approves Bell Mobility’s and TCC’s requests to vary the Commission’s Disclosure Ruling as it relates to this information.

Tower and site sharing agreements – TCC

The Commission considers that there are numerous factors that are taken into consideration in developing rates for tower and site sharing, including location, tower type, and antenna type. The Commission notes that the company’s revenues and expenses have been aggregated across several provinces. As a result, the Commission is of the view that public disclosure of this aggregated information would not likely have a material impact on TCC’s future commercial negotiations with third parties. At the same time, the Commission considers that there is a strong public interest in disclosure of this information, since the question of the appropriateness of greater regulatory oversight for wholesale wireless services, which could include the regulation of rates, is a key issue in the proceeding. Maintaining confidential treatment of this information would limit the ability of parties to effectively participate and provide meaningful comments on the state of the market and any need for greater regulatory oversight regarding tower and site sharing services.

As a result, the Commission is not persuaded that the public interest in disclosure of this information is outweighed by any specific direct harm that may result from disclosure of the information. Accordingly, the Commission finds that there is no substantial doubt as to the correctness of its direction to TCC to disclose its tower and site sharing revenue and expense information. Therefore, the Commission’s denies TCC’s request to vary the Commission’s Disclosure Ruling as it relates to this information.

Tower and site sharing agreements – NorthernTel

The Commission notes that there are six towers and sites owned by NorthernTel that are shared with other wireless carriers. As noted above, many factors are taken into consideration in developing rates for tower and site sharing. Therefore, disclosure of the tower and site sharing revenue information, aggregated at the level of an average revenue per site, would not likely have a material impact of NorthernTel’s future negotiations with third parties. Further, the Commission is of the view that maintaining confidential treatment of this information would limit the ability of parties to effectively participate and provide meaningful comments on the issues in the proceeding.

The Commission therefore is not persuaded that any specific direct harm that may result from disclosure outweighs the public interest in disclosure of this information. Accordingly, the Commission finds that there is no substantial doubt as to the correctness of its direction to NorthernTel to disclose its tower and site sharing revenue information. Therefore, the Commission denies NorthernTel’s request to vary the Commission’s Disclosure Ruling as it relates to this information.

With respect to the tower and site sharing expense information, the Commission notes that there is only one site that NorthernTel uses through a sharing arrangement. As a result, the Commission considers that disclosure of this information could result in specific, direct harm to the company. Therefore, the Commission now considers that the specific direct harm likely to result from the disclosure outweighs the public interest in disclosure of this information. Accordingly, the Commission finds that there is substantial doubt as to the correctness of the direction to NorthernTel to disclose its tower and site sharing expenses. Therefore, the Commission approves NorthernTel’s request to vary the Commission’s Disclosure Ruling as it relates to this information.

Filing Requirements

The Commission therefore directs TCC and NorthernTel to file on the public record of the proceeding initiated by Telecom Notice of Consultation 2014-76 all information to be disclosed pursuant to this letter. This information is to be filed by 22 September 2014 [letter + 5 days].

Parties are reminded that, if a document is to be filed or served by a specific date, the document must be actually received, not merely sent, by that date.

Designations of confidentiality

Pursuant to Broadcasting and Telecom Information Bulletin 2010-961^{Footnote 8}, when parties file information designated as confidential, they must provide detailed rationale to explain why the disclosure of the information is not in the public interest. In that information bulletin, the Commission stated that “generic statements such as ‘the release of this information to competitors would result in specific, direct harm to the company’ are not sufficient. Parties must provide sufficient reasons to allow meaningful analysis by the Commission or another party who may wish to request disclosure of the information.”

The Commission is seriously concerned that several parties, in particular Bell Mobility and TCC, relied on generic statements and failed to put forward fulsome rationale when filing information designated as confidential. Instead, they only provided substantive submissions during the review and vary proceeding. This approach has undermined the interrogatory and disclosure process, and resulted in undue process and unnecessary time and effort by the Commission and other parties. These delays and additional work could largely have been avoided had the parties concerned provided, in the first instance, fulsome rationale as to why disclosure of the information was not in the public interest.

The Commission reminds all parties that any requests to designate information as confidential must be supported by detailed rationale that is specific to the issue at hand. Further, the Commission fully expects parties to participate responsibly in its proceedings, including with respect to procedural matters, so that it can effectively and efficiently discharge its mandate in a timely manner.

Yours sincerely,

Original signed by

John Traversy,
Secretary General

cc: John Macri, CRTC, (819) 997-4595, john.macri@crtc.gc.ca
Christine Bailey, CRTC, (819) 997-4557, christine.bailey@crtc.gc.ca
Kim Wardle, CRTC, (819) 997-4945, kim.wardle@crtc.gc.ca

Date modified:

2014-09-16