ARCHIVED - Telecom Procedural Letter Addressed to Cynthia Khoo (OpenMedia Engagement Network) and Steven Schmidt (TELUS Communications Company)

Ottawa, 1 November 2017

Our reference:  1011-NOC2017-0112

BY EMAIL

Ms. Cynthia Khoo
External Counsel
OpenMedia Engagement Network
regulatory@openmedia.org

Mr. Steven Schmidt
Vice-President – Telecom Policy & Chief Regulatory Legal Counsel
Telecom Policy & Regulatory Affairs
TELUS Communications Company
regulatory.affairs@telus.com

Re:  Development of the Commission’s broadband funding regime, Telecom Notice of Consultation 2017-112 Supplementary Filing of OpenMedia Engagement Network

Dear Madam, Sir:

This letter is in response to OpenMedia Engagement Network’s (OpenMedia) procedural request, received 18 August 2017, to file supplementary comments in order to remedy a gap in its intervention, dated 28 June 2017. This request drew attention to reported struggles that the Village of Kaslo, British Columbia, faced in obtaining high-speed broadband Internet access, involving both Kaslo infoNet (KiN), an Internet Service Provider (ISP), and purportedly TELUS Communications Company (TELUS). OpenMedia explained that it had expected that KiN would intervene on its own behalf in order to provide the Commission, and record, with substantiating details regarding such reported struggles, but learned after the first intervention deadline that KiN had not intervened.

In response, by letter dated 23 August 2017, TELUS submitted that the allegations that OpenMedia makes in its intervention in paragraphs 26 and 30 are profoundly improper as they are based on mere “common knowledge” and multiple degrees of hearsay that are often anonymous, and are thus highly unreliable.

TELUS requested that the Commission make an order striking paragraphs 26 and 30 of OpenMedia’s original intervention and denying leave to OpenMedia to file its supplementary submission, including the redacted email from KiN to Kaslo Village Council regarding TELUS’ activities. TELUS submitted that to the extent that the Commission determines not to strike this evidence from the record, these statements should in any event be given no weight. In the alternative, TELUS requested that it be given 45 days to file a response to these allegations as TELUS anticipates that it will take a significant amount of time to investigate these allegations because many of them are anonymous or based on “common knowledge” and are over a decade old.

In a letter dated 25 August 2017, in response to OpenMedia and TELUS’ request, Commission staff indicated that a Commission determination would be forthcoming with respect to the above procedural request and, if necessary, additional process would follow.

By letter dated 29 August 2017, OpenMedia submitted that upon realizing that there was an unexpected and unintended deficiency in the record, OpenMedia made all reasonable efforts to remedy the issue. OpenMedia argued that KiN’s statement and evidence are materially relevant to issues central to the broadband funding proceeding. Specifically, they have argued that the statement illustrates potential roadblocks that local, small, non-profit, community, and/or municipal broadband initiatives may encounter and provides the Commission with an opportunity to act to remove or prevent them, or otherwise provide for such possibilities in its broadband funding regime design, to ensure that these players can access funding and deploy networks on an equal playing field unhindered. OpenMedia submitted that if the Commission accepts OpenMedia’s supplementary filings, providing TELUS with an opportunity to respond will cure concerns of prejudice and ensure procedural fairness.

OpenMedia requested that the Commission:

1. Accept OpenMedia’s supplemental filing;
2. Deny TELUS’ request to strike paragraphs 26 and 30 from OpenMedia’s intervention;
3. Accept and retain the confidentiality of Exhibit B in KiN’s statement (KiN’s email to Kaslo Village Council); and
4. Provide TELUS with a reasonable opportunity to respond, within the timeline of the current proceeding, whether in the form of requests for information or otherwise.

OpenMedia’s position, as set out in paragraphs 25 to 32 of its intervention, is that the broadband funding regime should not reward “bad behavior” such as where “market forces have impeded alternatives”. In paragraph 26 of its intervention, OpenMedia has provided an anecdote regarding historical interactions between KiN and TELUS in order to support its broad statement that “reports and anecdotes abound regarding various community or municipal ISPs’ battles with the incumbent ISPs in their respective regions.” In paragraph 30 of its intervention, OpenMedia then characterizes the behavior of “private sector, profit-motivated ISPs” that “devote resources towards actively hindering or impeding communities’ self-driven efforts to respond to these business decisions with their own solutions” as “unconscionable”.

With respect to TELUS’ request that the Commission strike paragraphs 26 and 30 from OpenMedia’s intervention, the Commission considers the details of the alleged interactions between TELUS and KiN to be anecdotal in nature and that the Commission can receive such evidence, giving it the weight it deserves. Therefore, to the extent that these paragraphs provide limited anecdotal evidence to support OpenMedia’s general position as set out in paragraph 32^Footnote1, paragraphs 26 and 30 should remain on the record.

With respect to OpenMedia’s supplemental filing, given that the further details provided regarding the alleged interactions between TELUS and KiN are also anecdotal and unsubstantiated, the supplemental filing therefore does not add to the record and is not required to further support OpenMedia’s general position as set out in paragraph 32.

Accordingly, the Commission denies TELUS’ procedural request to strike paragraphs 26 and 30 from OpenMedia’s intervention and denies OpenMedia’s supplemental filing, including KiN’s email to Kaslo Village Council.

Yours sincerely,

Original signed by

Scott Hutton
Acting Secretary General

c.c.:  Kim Wardle, CRTC, 819-997-494, kim.wardle@crtc.gc.ca

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Date modified:

2017-11-01