Telecom Commission Letter addressed to the Distribution List

Ottawa, 16 August 2019

Our reference: 1011-NOC2019-0057

BY EMAIL

Distribution

RE:  Telecom Notice of Consultation CRTC 2019-57, Review of mobile wireless services – Requests for disclosure of information designated as confidential and for further responses to requests for information

This letter addresses requests for further responses to requests for information (RFIs) issues by the Commission on 24 May 2019 as part of the proceeding initiated by Telecom Notice of Consultation 2019-57. Footnote1 This letter also addresses requests for disclosure of certain information designated as confidential in responses to the above-referenced RFIs and sets forth additional requests for disclosure.

On 10 July 2019, Bell Mobility Inc. (Bell Mobility), the Canadian Network Operators Consortium Inc., Cogeco Communications Inc, on behalf of its subsidiary Cogeco Connexion Inc., and EMF-OFF! filed submissions requesting disclosure of certain information filed in response to Commission issued RFIs and for which confidentiality had been claimed and further responses with respect to the responses of certain parties to these RFIs

On July 22 2019, the following parties responded to the above requests for disclosure and further responses: Bell Mobility, Bragg Communications Inc., carrying on business as Eastlink (Eastlink), Québecor Média inc. on behalf of Vidéotron Ltd. (Vidéotron), Rogers Communications Canada Inc. (Rogers), Saskatchewan Telecommunications (SaskTel), Shaw Communications Inc. (Shaw), TbayTel, and TELUS Communications Inc. (TELUS).

Further responses to requests for information

Commission staff has reviewed the RFI responses and is of the view that some of the responses are deficient. There were instances where parties provided incomplete or partial responses, including instances where the party simply stated that the requested information was “not available”, while providing little or no justification or explanation as to why. 

As such, parties are to file with the Commission all information set out in Attachment 1 by 30 August 2019. If a party is unable to provide the required information for any questions identified in the attachment, the company is to provide a detailed justification as to why it is not possible for it to comply with the Commission’s directives.

Requests for disclosure of information designated as confidential

Requests for disclosure of information designated as confidential are addressed in light of sections 38 and 39 of the Telecommunications Act (the Act) as well as sections 30 – 34 of the CRTC Rules of Practice and Procedure (The Rules of Procedure).

In evaluating a request, an assessment is first made as to whether the information 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 disclosure of particular information is in the public interest. In conducting this assessment, regard is had to whether the disclosure would likely result in specific direct harm and whether that harm outweighs the public interest in disclosure. Harm may be more likely to outweigh the public interest where the information is more disaggregated or where the degree of competition is greater. Conversely, the public interest may be more likely to outweigh any harm where disclosure of the information is more important to the ability of the Commission to obtain a full and complete record on which to make its decision. Further information regarding the general procedures and the factors considered may be found in Broadcasting and Telecom Information Bulletin CRTC 2010-961. Footnote2

Having regard to the above, parties are to file with the Commission all pertinent information as set out in Attachment 2 by 30 August 2019.

With respect to requests for disclosure submitted by EMF-OFF!, the organization did not explicitly identify which parties were subject to its requests and it appears that EMF-OFF! did not serve its requests to the parties requested to disclose this information, contrary to section 33(2) of the Rules of Procedures.

The submissions made by EMF-OFF! in support of its requests for public disclosure were grounded in the concept of privilege. This is a substantive rule of the law of evidence and, in particular, “an exception to the general principle that all relevant evidence is admissible.” Footnote3 Privilege recognizes that, in certain instances, public policy reasons can justify the exclusion of what would otherwise be probative evidence from the trial setting. 

These arguments are misplaced as the doctrine of privilege finds no application in the present circumstances. The Commission is undertaking a broad review of its policy framework for wireless services and is not bound by the formal rules of evidence applicable in the trial setting. Further, in designating information as confidential pursuant to section 39 of the Act, the relevant parties have not sought to shield the information from admissibility. To the contrary, the evidence in question has already been admitted to the record of the proceeding for consideration by the Commission.  

The matter under consideration at this stage of the proceeding is whether this information ought to be publicly disclosed. Section 39 of the Act sets out the regime governing this process and provides the Commission with the discretion to disclose or require the disclosure, publicly, of information that has been designated as confidential if it would be in the “public interest” to do so. As indicated above, in Broadcasting and Telecom Information BulletinCRTC 2010-961, the Commission has articulated its general approach to exercising this discretion. EMF-OFF has not directly addressed the Commission’s disclosure framework.

Commission staff is, however, of the preliminary view that it would be in the public interest to disclose certain information identified by EMF-OFF! as well as certain information that has not been the subject of a disclosure request. This information is set out in Attachment 3 to the present letter.

Commission staff considers that some of this information is publically available and should therefore not be treated as confidential. Footnote4 Furthermore, and in any event, the information under consideration is historical and aggregated at the company-wide level. Commission staff considers that disclosure of this information would assist parties in gaining a better understanding of the competitive landscape and the economic dynamics that shape retail mobile wireless offers.

While Commission staff recognizes that information relating to capital expenditures, data overage and data usage is not information that would generally be publically disclosed, it considers that public disclosure of certain data relating to these matters would be in the public interest.

With respect to capital expenditures attributed to mobile wireless networks, the information requested is at the company-wide level and would therefore not provide competitors with information about specific network deployment projects. Commission staff considers that this information has direct bearing on a number of matters at issue in this proceeding. In this regard, a number of parties have raised concerns with respect to the impact of potential regulatory measures on continued network investments. Commission staff considers that access to this information would assist parties in ascertaining the impact of past regulatory measures on investment and allow for a better assessment of any potential regulatory measure on future network investments.

With respect to data overage information, Commission staff notes that the information under consideration is aggregated at the provincial/territorial level and considers that access to this information would allow parties to gain a better appreciation of the impact that overage charges can have on consumers and assist them in evaluating the pertinence and advisability of adopting potential regulatory measures.

Finally, with regards to the data usage information reflected in Attachment 3, Commission staff considers that its public disclosure would provide parties with a better ability to gain an understanding of consumers’ data consumption behaviour. Access to this information would assist parties in assessing whether there are differences in consumption behaviour across provinces/territories and to make submissions as to what would explain any such differences.

In order to provide parties with an opportunity to appropriately address these additional requests for disclosure, parties are to either file the requested information as set out in Attachment 3 on the public record of this proceeding, or provide a response as to why this information should not be filed on the public record, by 30 August 2019. Determinations regarding these disclosure requests will be issued at a later date.

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. Parties are also reminded that, pursuant to Telecom Decision 2019-277, Footnote5 they are also to disclose to the Commissioner of Competition all responses filed in confidence in relation to the Commission’s 24 May 2019 RFIs.

Sincerely,

Original signed by

Philippe Kent
Director, Policy
Telecommunications Sector

Distribution List: All parties to 2019-57

Attach. (3)

Attachment 1

FURTHER RESPONSES TO INTERROGATORIES

Parties identified below are to provide the information requested, or to provide a detailed justification as to why it is not possible for the company to provide the requested information.

(CRTC)5April2019-102

(CRTC)5April2019-103

(CRTC)5April2019-104

(CRTC)5April2019-105

(CRTC)5April2019-202

(CRTC)5April2019-203

(CRTC)5April2019-205

(CRTC)5April2019-206

(CRTC)5April2019-208

(CRTC)5April2019-209

(CRTC)5April2019-210

(CRTC)5April2019-211

(CRTC)5April2019-212

(CRTC)5April2019-213

Attachment 2

DISCLOSURE OF INFORMATION DESIGNATED AS CONFIDENTIAL

Parties identified below are to provide on the public record the requested information.

(CRTC)5April2019-101

(CRTC)5April2019-102

(CRTC)5April2019-104

(CRTC)5April2019-105

(CRTC)5Apr2019-202

(CRTC)5April2019-204

Attachment 3

REQUEST FOR DISCLOSURE OF ADDITIONAL INFORMATION

Parties identified below are to provide the requested information on the public record, or to provide detailed rationale as to why the requested information should not be provided on the public record.

(CRTC)5April2019-103

(CRTC)5April2019-205

(CRTC)5April2019-208

(CRTC) 5April2019-209

(CRTC)5April2019-211

(CRTC)5April2019-212

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