Telecom Commission Letter addressed to Various Parties Interested

Ottawa, 13 November 2019

Our references:  8660-C12-201000116, 8000-C12-201909780

BY EMAIL

Mr. Philippe Gauvin
Assistant General Counsel
Bell Canada
Floor 19
160 Elgin St.
Ottawa, Ontario K2P 2C4
bell.regulatory@bell.ca

Ms. Michelle Dupuis
Senior Regulatory Legal Counsel
TELUS Communications Inc.
215 Slater Street,
Ottawa, Ontario K1P 0A6
michelle.dupuis@telus.com

Ms. Natalie MacDonald
Vice President - Regulatory Matters
Bragg Communications Incorporated (Eastlink)
6080 Young Street, Suite 801
Halifax Nova Scotia B3K 5L2
regulatory.matters@corp.eastlink.ca

Mr. Howard Slawner
Vice President - Regulatory Telecom
Rogers Communications Canada Inc.
350 Bloor Street East
Toronto Ontario M4W 0A1
rwi_gr@rci.rogers.com

Re:  Responses to Request for Information regarding major telecommunications disruptions – Request for disclosure on the public record of certain information filed in confidence

On 13 September 2019, Canadian Radio-television and Telecommunications Commission (CRTC) staff sent a letter to Bell Canada (Bell), TELUS Communications Inc. (TELUS), Bragg Communications Incorporated (Eastlink) and Rogers Communications Canada Inc. (Rogers) (collectively, the companies) requesting information on major telecommunications disruptions in Atlantic Canada as a result of hurricane Dorian. On 18 September 2019, Bell and TELUS provided confidential and abridged versions of their responses, while Eastlink and Rogers provided only confidential responses to the request for information (RFI).

On 30 September 2019, Mr. Marc Nanni requested disclosure of certain information filed in confidence by the companies in their responses.
On 1 October 2019, Commission staff sent a letter to the companies, setting out 10 October 2019 as the reply date for the request for disclosure.

On 10 October 2019, the companies filed their replies to the request for disclosure, taking the position that no additional information should be disclosed.

In requesting disclosure of the RFI replies and corresponding attachments, Mr. Nanni submitted, generally, that the companies’ requests for confidentiality were blanket statements; that much of the data is available from Statistics Canada, census data and other third party sources; and that the information designated as confidential does not match the types of information that the Commission accepts as confidential, due to the degree of aggregation of the information.

Mr. Nanni also submitted that the public interest in the RFI replies directly informs key issues brought up in past proceedings; key issues in future proceedings in regards to how the services are sold; various objectives under section 7 of the Telecommunications Act (the Act) such as reliability, quality and responding to the social requirements of the people they serve; or future funding in Nova Scotia, Newfoundland & Labrador. Mr. Nanni further argued that disclosure of the RFI replies would allow the public to become better informed and to make better informed decisions when purchasing services.

In its reply to Mr. Nanni’s request, Bell claimed confidentiality pursuant to subsections 20(1)(b) and (b.1) of the Access to Information Act, as well as section 39 of the Act, arguing that Mr. Nanni’s request should be denied as release of the information would lead to specific and direct harm, while offering no discernable contribution to the public interest. The company submitted that the data provided in its responses represents sensitive, competitive information regarding its customers in these provinces as well as internal information concerning its network performance, the disclosure of which could heighten the risks to its networks.

With regard to Mr. Nanni’s assertion that the confidential information is standard marketing and demographic data, Bell argued that this is incorrect as Statistics Canada and the Commission's Communications Monitoring Report do not publish any of the data for which confidentiality was claimed. Bell argued that the provinces were kept well-informed about the impact of any service outages in their regions, and therefore, disclosure of the information would provide them with no incremental value. Finally, Bell submitted that Mr. Nanni's argument that the information could inform issues considered in past Commission proceedings or in some unspecified and unplanned future Commission proceeding was irrelevant or should be rejected as the Commission would have the ability to request information at that time.

TELUS submitted that its confidential information falls within the requirements of subsection 39(1) of the Act, and that Mr. Nanni’s disclosure request should be dismissed for several reasons. First, TELUS submitted that a disclosure order is not in the public interest, which is to ensure that the Commission has the best and most complete information regarding the network outages caused by hurricane Dorian. Second, TELUS asserted that Mr. Nanni’s vague assertions that the information may inform future proceedings is insufficient to warrant disclosure.  Third, TELUS argued that Mr. Nanni does not represent the public affected by the outages in Atlantic Canada, and has failed to explain why the disclosure is in their interest. Fourth, the specific and direct harm it would suffer outweighs the public interest in disclosure of the confidential and competitively sensitive information sought.

Eastlink submitted that the specific questions issued to wireless service providers regarding their preparation and response to hurricane Dorian was not part of a public proceeding, but rather was a request for information to those parties who were directly impacted by the storm. The company submitted that it filed its response in confidence as the information relates specifically to the steps taken to prepare and maintain its network during power outages, and includes information that if made public could result in direct harm and hinder its efforts to maintain service during future storm events. Eastlink also submitted that as it is not a public proceeding, there is no reason for other parties to review, or comment on the information contained in its response. The company also submitted that Mr. Nanni failed to provide any justification as to why the information contained in its response should be publicly disclosed.  Eastlink further indicated that any information that is not of a confidential nature, such as communication efforts made via its website and twitter, is already public.

Rogers submitted that the information it designated as confidential clearly satisfies the requirements set out in section 39 of the Act, sections 30-34 of the CRTC Rules of Practice and Procedure and section 20 of the Access to Information Act. Rogers argued that its RFI responses contain sensitive operational and commercial information that is confidential and that is consistently treated in a confidential manner by both Rogers and the Commission. The release of this information, according to Rogers, would provide its existing and potential competitors with strategic information with regard to its operations not otherwise available to them. Rogers further indicated that, during Hurricane Dorian, it publicly shared the high level steps taken to restore its networks and the preparation before, during and after this critical event, but cautioned that the detailed information could be used to damage networks and impact public safety for Canadians.

In evaluating a request for disclosure, an assessment is first made as to whether the information falls into a category of information that can be designated as confidential pursuant to subsection 39(1) of the Act. Paragraph 39(4)(a) of the Act states that the Commission may require the disclosure of information designated as confidential submitted in the course of proceedings before the Commission if it determines, after considering any representations from interested persons, that the disclosure is in the public interest.

In conducting this assessment, consideration is given as 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 a decision.

Further information on the procedures for filing confidential information and requesting its disclosure in Commission proceedings can be found in BTIB CRTC 2010-961, which describes the four step process for filing confidential information. Commission staff has analyzed this request using those criteria.

With respect to the information filed in confidence by Bell, Commission staff considers that it falls into the categories of information that can be considered confidential under paragraph 39(1)(b) and subparagraph 39(1)(c)(ii) of the Act, as it constitutes technical information that is treated consistently in a confidential manner and the release of which could reasonably be expected to prejudice the competitive position of the company. Commission staff is of the view that the public interest in releasing this information is outweighed by the likelihood of specific and direct harm to the company and its customers. As a result, no further disclosure of information is required by Bell.

With respect to the information filed in confidence by TELUS, Commission staff considers that the majority of the information contained in its responses also falls into the categories of information that can be considered confidential under paragraph 39(1)(b) and subparagraph 39(1)(c)(ii) of the Act as it constitutes technical information that is treated consistently in a confidential manner and the release of which could reasonably be expected to prejudice the competitive position of the company. Commission staff is of the view that the public interest in releasing this information is outweighed by the likelihood of specific direct harm to the company and its customers.

However, Commission staff considers that some portions of the TELUS, Eastlink and Rogers responses to the RFI which were filed in confidence do not properly fall within one of the categories of information that can be designated confidential under subsection 39(1) of the Act. This would include, among other things, most, if not all, portions of the cover letters that have not already been released, information that has already been disclosed to the public in other contexts, the rationale for why the information was being filed in confidence, and explanatory notes, headings, tables or assumptions that do not divulge sensitive, technical or competitive information.

As a result, Commission staff request TELUS, Eastlink and Rogers to conduct a line-by-line review of their responses and release any additional information that does not fall under section 39(1) of the Act in an updated or original abridged version by no later than 22 November 2019.

Sincerely,

Original signed by

Michel Murray
Director, Dispute Resolution and Regulatory Implementation
Telecommunications Sector
c.c.: Marc Nanni, m_nanni@hushmail.com
Valerie Plaskacz, CRTC, valerie.plaskacz@crtc.gc.ca
Wendy McClintock, CRTC, wendy.mcclintock@crtc.gc.ca

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