ARCHIVED - Broadcasting Commission Letter Addressed to the Distribution List
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Ottawa, 16 August 2017
Subject: Broadcasting Notice of Consultation 2017-160 - Request for production of documents and disclosure of responses designated as confidential
In letters dated 22 and 23 June 2017, Mr. Marc Nanni requested that the following documents be produced for the record of the Broadcasting Notice of Consultation 2017-160 proceeding:
- a letter from the Office of the Privacy Commissioner of Canada referenced by TELUS in its 17 March 2017 response to a CRTC request for further information;
- a non-completed Numeris survey sent to the set-top-box working group (STB WG) members referenced by several broadcasting distribution undertakingsFootnote1 (BDUs) in their responses to a CRTC request for further information; and
- a December 2016 survey/questionnaire from the STB WG and the replies by parties to the survey referenced in STB WG Progress Report dated 16 June 2017.
In the 22 June 2017 letter noted above, Mr. Nanni also requested the disclosure of certain responses provided for the record of the above-noted proceeding that were designated by respective BDUs as confidential. In particular, Mr. Nanni requested the following:
- disclosure by Eastlink of its confidential responses dated 17 March 2017 to questions 2, 2.1, 2.2, 3, 3.1, 3.2 and 4;
- disclosure by Rogers of the confidential portions of its responses dated 31 March 2017. In particular, paragraphs 24 to 27, and 29 to 31; and
- disclosure by TELUS of the confidential portions of its responses dated 17 March 2017 to questions 2, 2.1, 3, 3.1, 4, 4.1 and 4.2.
Mr. Nanni submitted that the documents and answers noted above pertain to the privacy of Canadians and that the public has a right to know and understand how their information is and will be used by BDUs and broadcasters. Mr. Nanni argued that meaningful engagement by the public cannot occur when pertinent information is not available to the public. Mr. Nanni added that being transparent and open would allow the Commission to openly discuss these issues during the process, and allow the public to follow and understand the issues.
On the issue of information filed by BDUs in confidence, Mr. Nanni submitted that aside from generic statements, no specific reasons were provided by BDUs to demonstrate how the information is confidential or why the disclosure would not be in the public interest. Mr. Nanni questioned, moreover, why some BDUs would designate as confidential, information that other BDUs provided on the public record.
Overall, Mr. Nanni is of the view that the public interest in having the above-noted documents disclosed for the record of the proceeding outweighed the potential harm it would cause to BDUs.
In a letter dated 18 July 2017, it was noted that while Mr. Nanni requested that Eastlink, Rogers and TELUS disclose the confidential portions of several of their responses that were provided in confidence, no requests for disclosure were made of other BDUs that provided portions of their responses to the same questions in confidence. To be fair and consistent, Commission staff requested that Bell and Shaw also respond to the request for disclosure.
BDU’s original requests for confidentiality
When the BDUs filed their responses to the requests for information, they included their reasons for asking that certain information within those responses be kept confidential. In general, BDUs submitted that the information filed in confidence has not been publicly disclosed and has consistently been treated in a confidential manner. They argued that disclosure of the information would provide competitors with valuable data that could reasonably be expected to result in material financial loss, significantly prejudice their competitive positions or interfere with contractual or other negotiations. The BDUs raised the following additional points:
- Eastlink submitted that information regarding subscribers numbers, service/package penetration levels, and present and future capabilities of hardware is highly confidential;
- Shaw submitted that it had kept in confidence the names of certain third parties that have not provided their consent for disclosure; and
- Shaw added that it would be strongly opposed to disclosing information about early experimentation with STB data to unlicensed competitors that already operate with several advantages in the area of advanced advertising.
The BDUs argued that the potential harm of disclosure is not outweighed by any public interest.
Replies to the requests for the production of documents and for the disclosure of information filed in confidence
- Production of documents
In a letter from the STB WG dated 25 July 2017, the letter from the Office of the Privacy Commissioner of Canada dated 3 December 2015 was provided for the public record of proceeding.
In letters dated 25 July 2017, Bell MTS, Eastlink, Rogers, SaskTel, Shaw, TELUS and Videotron confirmed that they would no longer be relying on the survey as part of their responses to the Commission requests for information. The survey in question will, therefore, not be considered part of the record of the proceeding.
- Disclosure of information filed in confidence
Eastlink submitted that public disclosure of the confidential data is not likely to add any incremental benefit to the existing safeguards in place to ensure that privacy issues are addressed. Eastlink submitted, further, that disclosing information relating to the penetration of its STBs and the technical capabilities of its hardware could enable its competitors to develop more effective business and marketing strategies that would affect Eastlink’s competitive position within these markets.
Rogers submitted that disclosure of the sections in question would allow competitors to identify the success or failure of initiatives that were undertaken to use aggregated STB information to gain a competitive advantage in the market or otherwise interfere with contractual negotiations with third parties. Rogers argued, in addition, that disclosure would frustrate the non-disclosure agreements it has entered into with third parties (including with CRTC staff).
Shaw submitted that placing its confidential information on the public record in this case – without a request by a third-party demonstrating public interest – would be improper. Shaw argued that there is limited public interest that would be served by disclosing the confidential portions of its responses. Shaw was of the view that abridged responses provide interested third-parties with the ability to form a sufficient understanding of Shaw’s collection and use of STB data in order to meaningfully participate in this proceeding.
Requests for documents and requests for disclosure are considered in accordance with sections 29 to 34 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (Rules of Procedure) and Procedures for filing confidential information and requesting its disclosure in Commission proceeding, Broadcasting and Telecom Information Bulletin CRTC 2010-961.
- Production of documents
Section 29 of the Rules of Procedure states that a party may request any other party to produce any document that has been referred to in a document that the other party has filed with the Commission.
As noted above, of the requests made for the production of documents, the letter from the Office of the Privacy Commissioner was provided for the public record and parties that referred to the Numeris survey submitted that they would not rely on the survey as part of its responses to the Commission requests for information.
The third document requested, a December 2016 survey/questionnaire from the STB WG, was not referred to by any party to this proceeding. This survey was referenced in the 16 June 2017 report filed by the STB WG to the Commission. The 16 June 2017 report was placed on the record of this proceeding by the Commission. Commission staff is of the view that the information on the public record of this proceeding provides a more current view of the issues concerning the implementation of a STB audience measurement system than does the December 2016 survey and is sufficient for the public to fully participate in the proceeding. Consequently, there is no need that the December 2016 survey/questionnaire be placed on the public record of this proceeding.
- Disclosure of information filed in confidence
Section 32(1) requires that the party that designates information as confidential must provide reasons, as well as any supporting documents, why the disclosure of the information would not be in the public interest, including why the specific direct harm that would likely result from the disclosure would outweigh the public interest.
In evaluating whether the disclosure of certain information on the public record of this proceeding would cause specific direct harm to a party, factors taken into consideration include: whether the information has been made public in other contexts; whether the information would generally be known to competitors within the industry; whether the information has been provided on the public record by other parties within the same proceeding; and whether the information includes specific details that would frustrate ongoing non-disclosure agreements.
In regard to these specific disclosure requests, where one party provided an answer on the public record to a particular request for information that other parties chose to file in confidence, and where the information filed in confidence was not markedly different than what was provided on the public record by other parties, we are requiring that the information be disclosed. Where information was provided in confidence regarding how a party uses set-top box information internally or if it is shared with third parties, with the exception of some information that may be the subject of a non-disclosure agreement or the specific names of third parties, we are requiring that the information be disclosed.
Based on the above, it has been determined that the following documents must be provided for the public record by no later than 28 August 2017:
- With the exception of the numbers of deployed set-top boxes, Eastlink, Rogers, TELUS and Shaw are required to disclose for the public record, complete answers to requests for information 2, 2.1, and 2.2;
- Eastlink and TELUS are required to disclose for the public record, complete answers to requests for information 3, 3.1, 3.2, 4, 4.1 and 4,2;
- Rogers is required to disclose for the public record, paragraphs 24 and 25 of its 31 March 2017 response ; and
- With the exception of the name of the third party and the second last paragraphFootnote2 , Shaw is required to disclose for the public record its answer to the request for information 4.1.
Note that where a party is required to provide revised answers for the public record, it may also be necessary to file a revised abridged version.
As a result of the above, parties will have until 12 September 2017 to provide interventions concerning the new materials put on the public record and BDUs will have until 18 September 2017 to provide replies to any new interventions filed.
Television Policy and Applications
Mr. Mark Nanni
Avocate principale – affaires réglementaires, Bell
Vice-présidente, affaires réglementaires, Eastlink
Vice-présidente, affaires réglementaires, Rogers
W.N. (Bill) Beckman
Directeur principal – affaires réglementaires, SaskTel
Vice President, Regulatory Affairs, Shaw
Vice-présidente, Politique de radiodiffusion et affaires réglementaires, TELUS
Vice-présidente, affaires réglementaires, radiodiffusion, Vidéotron
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