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ARCHIVED - Telecom Commission Letter Addressed to Distribution List

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Ottawa, 18 November 2016

Our reference: 1011-NOC2016-0192

BY E-MAIL

Distribution

RE:  Examination of differential practices related to Internet data plans, Telecom Notice of Consultation 2016-192, as amended – Requests for disclosure of information designated as confidential

Dear Madam, Sir:

This letter addresses requests made by the Equitable Internet Coalition (the Coalition) by letter dated 15 November 2016 for disclosure of information designated as confidential in 14 November 2016 filings by Telus Communications Company (Telus), Distributel Communications Limited (Distributel) and Quebecor Media Inc. (Quebecor).

On 16 and 17 November 2016, Quebecor and Distributel disclosed the information requested by the Coalition on the public record.

With regard to its request for disclosure of information filed by Telus in confidence, the Coalition argued, among other things, that data usage information is not consistently treated as confidential by Telus; several other parties have disclosed usage information in this proceeding, and the information is in an aggregated form. The Coalition submitted that the average data usage would provide information about whether existing data caps are meeting customers’ needs, and the degree to which zero-rating will influence consumer demand.

In its response dated 17 November 2016, Telus objected to disclosure on the basis that the information has consistently been treated as confidential and disclosure could reasonably be expected to result in material financial loss to Telus or gain to another person and to prejudice its competitive position. Telus also argued that in contrast to the information provided by other parties on the public record of this proceeding, the information which Telus seeks to retain in confidence provides the actual, specific percentage of data used by customers and not an estimated amount as is the case for the other companies.

In addition, Telus argued that the Coalition cannot claim there is a public interest in this disclosure when they waited until this late juncture in the proceeding to request the information and have not made the request more broadly to all service providers. Telus submitted that should it have to disclose the requested information, as the only company to do so in a broad policy-making proceeding, additional concerns about the procedural fairness of the Coalition’s request will necessarily be raised.

Requests for disclosure of information designated as confidential are addressed in light of sections 38 and 39 of the Telecommunications Act (the Act) and sections 30 and following of the CRTC Rules of Practice and Procedure (the Rules of Procedure). In evaluating a request, an assessment is made as to whether the information falls into a category that can be designated as confidential pursuant to section 39 of the Act, 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 obtaining a fuller record. The factors considered are discussed in more detail in Procedures for filing confidential information and requesting its disclosure in Commission proceedings, Broadcasting and Telecom Information Bulletin CRTC 2010-961, 23 December 2010, as amended by Broadcasting and Telecom Information Bulletin CRTC 2010-961-1, 26 October 2012.

Commission staff has reviewed the submissions by the Coalition and Telus and considers that disclosure of the information sought by the Coalition is not necessary for parties to be able to comment meaningfully on the matters being considered in this proceeding. Further, Commission staff agree with Telus that the Coalition had an opportunity to seek this information earlier in the proceeding but chose not to do so. This suggests that the Coalition itself did not consider this information to be necessary for the purpose of making meaningful submissions.

The information in question is consistently treated as confidential by Telus and could be used by competitors to the prejudice of Telus. In the circumstances of this case, Commission staff considers that the public interest in disclosure is outweighed by the specific direct harm to Telus likely to result from disclosure. In light of the above, Commission staff considers that Telus should not be required to disclose the requested information.

Yours sincerely,

Original signed by

Andrew Falcone
Senior Manager
Strategic Planning & Research
Telecommunications Sector

c.c.: Suneil Kanjeekal, CRTC, (613) 668-6561, suneil.kanjeekal@crtc.gc.ca
Jeremy Lendvay, CRTC, (819) 997-4946, jeremy.lendvay@crtc.gc.ca
Josiane Lord, CRTC, (819) 576-2568, josiane.lord@crtc.gc.ca
Eric Macfarlane, CRTC (819) 997-4389, eric.macfarlane@crtc.gc.ca

Distribution List

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