Telecom - Commission letter addressed to Distribution List
Ottawa, 26 March 2020
Our reference: 1011-NOC2019-0057
RE: Review of mobile wireless services, Telecom Notice of Consultation CRTC 2019-57 – Commissioner of Competition’s request for disclosure of confidential undertakings
Dear Madams, Sirs:
On 18 February 2020, the first day of the public hearing, the Commission issued a series of written undertakings (Exhibit 4) for various parties to complete by 10 March 2020. The purpose of these undertakings was largely to update data and information that had been previously filed by the wireless carriers.
In a letter dated 3 March 2020, the Competition Bureau filed, on behalf of the Commissioner of Competition (the Commissioner), a request to have all confidential information filed in response to Exhibit 4 disclosed to him,Footnote1 arguing that the information sought is relevant to the competition issues in this proceeding, and that the Commission has already ordered wireless carriers to disclose substantially similar information to the Commissioner earlier in the proceeding. The letter indicated that the information would provide the Commissioner with insights into, among other things, regional differences in competition, the motivations behind the release of unlimited plans, whether spectrum and tower access are barriers preventing effective market entry, and the competitive impacts of network sharing agreements.
TELUS opposed the Commissioner’s request on the basis that it was filed out of process, in advance of any information actually being filed in confidence by parties. No other party commented.Footnote2in assessing whether to exercise its discretion to require disclosure to the Commissioner, the Commission’s practice throughout this proceeding has been to first determine whether the information being sought is relevant to competition issues and, if so, weigh the benefits of disclosure against the associated risks.
As with the Commissioner’s previous disclosure requests, the Commission is of the view that the information sought by the Commissioner is relevant to competition issues being considered in the proceeding.
In terms of benefits, the Commission’s main consideration is the fulsomeness of the record. With this in mind, the Commission is of the view that disclosure to the Commissioner at this late stage of the proceeding would not result in a meaningfully more fulsome record.
The Commissioner’s participation and contributions in this proceeding have already been extensive. On multiple occasions, the Commissioner has been granted access to a significant amount of confidential material and used that information to support an expert report (The Chipty Report) that produced a conceptual framework, a detailed methodological approach, including statistical analyses, and a comprehensive market power analysis. The Chipty Report’s findings, in turn, led the Commissioner to propose various recommendations in his Further Comments. The Chipty Report and the Commissioner’s proposed “disruptor MVNO model” were discussed at length with numerous parties, including the Commissioner himself, at the hearing.
The Commission does not consider that the updated data sought in the undertakings is likely to change the Commissioner’s conceptual or analytical approach to the market power assessment or his proposed remedies. Even if the undertaking information would further inform the Commissioner’s understanding of the market, it is not clear what additional insights or conclusions he could provide that the Commission itself could not already reach with the extensive record it has before it. Furthermore, the Commission notes that the only remaining stage of the proceeding in which the Commissioner could use any additional confidential information provided to him would be in the final comments, which generally exclude the introduction of new evidence.
In terms of risks, as with his previous disclosure requests, the risk of harm to parties in disclosing information to the Commissioner generally remains low, owing mainly to his agency’s extensive experience in handling confidential and sensitive information in its capacity as a federal law enforcement body, and the fact that he is not adverse in interest to any particular party (though his positions may conflict with the positions taken by certain parties).
However, under the circumstances, there are also risks of further procedural delays associated with this disclosure request. For instance, evidence filed in confidence by the Commissioner in his final comments that are based on any newly disclosed information belonging to third-party wireless carriers may be subject to disclosure requests by other parties, which would require additional process to resolve.
The Notice of Consultation was launched over a year ago, in February 2019, and since that time the Commission has assembled a comprehensive record on a wide range of issues. Given the considerable financial and socioeconomic stakes at play for parties and the general public alike, there is a strong public interest in not unduly or unnecessarily delaying the close the record and issuance of a decision on the matters being considered.
In this regard, the Commission notes that there have already been delays to filing dates, the hearing date, and the close of record during this proceeding.Footnote3 Given that the record is substantially complete and the benefits to be obtained from disclosing the information to the Commissioner are minimal, the Commission considers that the risks associated with granting the disclosure request, particularly in terms of additional procedural delays, outweigh any associated benefits.
As such, despite the fact that the information is relevant to the competition issues in the proceeding, the Commissioner’s request is denied.
Original signed by
Distribution list: parties to Telecom proceeding 2019-57
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