Telecom Commission Letter addressed to Eastlink and City Wide Communications Inc.
Ottawa, 12 June 2020
Our references: 8662-E17-202002731
Ms. Natalie MacDonald
Vice-President, Regulatory Matters
6080 Young Street, 8th Floor
Halifax, Nova Scotia B3K 5L2
M. David Pothier
City Wide Communications Inc.
140 Joseph Zatzman Drive
Dartmouth Nova Scotia B3B 1M4
RE: Bragg Communications Inc., operating as Eastlink - Application to Review and Vary Telecom Order CRTC 2020-60 - Terms and conditions of access to the cable carriers’ aggregated wholesale high-speed access services – Disclosure and deadline extension
Dear Madam, Sir:
The Commission is in receipt of the Part 1 application submitted on 13 May 2020 by Bragg Communications Inc., carrying on business as Eastlink (Eastlink) to review and vary Telecom Order 2020-60 - Terms and conditions of access to the cable carriers’ aggregated wholesale high-speed access services (the proceeding). Specifically, Eastlink requested that the Commission permits the company to establish credit limits for wholesale customers and to include such provision in its tariff.
In a letter dated 4 June 2020, City Wide Communications (City Wide) submitted a request for disclosure of information filed in confidence by Eastlink to review and vary Telecom Order 2020-60. City Wide submitted that the public disclosure of the information by Eastlink is necessary to ensure a complete record in the application. Further, City Wide requested that the Commission delay the date for the filing of interventions in the proceeding until two weeks after the date on which either the Commission denies City Wide's disclosure request or Eastlink files any information that the Commission orders Eastlink to disclose.
On 8 June 8 2020, Eastlink responded to City Wide’s request for disclosure of information agreeing that is was appropriate to provide some of the information filed in confidence directly to City Wide. Eastlink proposed that the abridged version of the application that was filed on 13 May 2020, remain on the public record.
On 9 June 9 2020, City Wide requested that the Commission rule upon the original requests submitted by City Wide on 4 June 4 2020, with respect to the disclosure of information from Eastlink and the extension of the deadline to file interventions prior to 15 June 2020.
Whether Selective Disclosure is Appropriate in the Proceeding
Commission staff notes that, in its 8 June 2020 reply, Eastlink did not respond directly to City Wide’s arguments. Instead, the company stated that it considered it appropriate to provide some of the information filed in confidence directly to City Wide, while leaving on the public record the original abridged application that Eastlink had filed on 13 May 2020. By letter dated 9 June 2020, City Wide acknowledged that Eastlink disclosed to it some of the information that Eastlink had filed in confidence.
The Telecommunications Act (Act) does not provide for the possibility of making a selective disclosure of information that has been designated as confidential, in the context of the proceeding. Further, neither the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (Rules), nor the Procedures for filing confidential information and requesting its disclosure in Commission proceedings, Broadcasting and Telecom Information Bulletin CRTC 2010-961, 23 December 2010, as amended by Broadcasting and Telecom Information Bulletin CRTC 2010-961-1, 26 October 2012 (Info Bulletins), include provisions or give direction regarding a selective disclosure regime. Although the Commission has allowed selective disclosure in rare cases, that mechanism is not warranted in the proceeding.
Commission staff considers that allowing selective disclosure would impact fairness in the proceeding. Procedural unfairness would result from City Wide having access to more information than that held by any other potential intervener, as the duty of procedural fairness owed in the proceeding requires that each intervener be treated the same. Further, as one of Eastlink’s TPIA customers, City Wide has a direct interest in the outcome of the proceeding and should not be granted any special status regarding access to confidential information.
In addition, Commission staff considers that a selective disclosure to City Wide would have a negative impact on the perceived integrity and transparency of the proceeding, as doing so would effectively allow City Wide to rely on information that is not on the public record.
Given all of the above, Commission staff is of the view that Eastlink cannot rely on a selective disclosure regime in the proceeding. Further, City Wide should not make submissions in the proceeding based on confidential information that only that company received and which is not part of the public record. Should City Wide make any such submissions, the Commission may decide whether to admit them as evidence.
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 Act and sections 30 and following of the Rules. In evaluating a request, an assessment is made as to whether the information falls into a category of information that can be designated confidential pursuant to section 39 of the Act.
An assessment is then made as to whether there is any specific direct harm likely to result from the disclosure of the information in question and whether any such harm outweighs the public interest in disclosure. In making this evaluation, a number of factors are taken into consideration, including whether information could be reasonably aggregated and the competitive sensitivity of the information itself. The factors considered are discussed in more detail in the Info Bulletins.
In its 4 June 2020 letter, City Wide requested the public disclosure of information that has been designated as confidential by Eastlink. In particular, City Wide made submissions as to why public disclosure of the information requested would not result in any significant specific direct harm to Eastlink as well as why any such specific direct harm would be outweighed by the significant public interest in disclosure.
Eastlink did not respond to such arguments. Instead, it made a partial disclosure of the information to City Wide only. As noted above, Commission staff considers that the selective disclosure regime is not warranted in the proceeding. Further, Eastlink’s full responses to all of City Wide’s submissions would assist Commission staff in evaluating whether information designated as confidential ought to be disclosed on the public record.
In light of all of the above, Commission staff requests Eastlink to file a complete response to City Wide’s original request for disclosure, on the public record, of information that has been designated as confidential, by 19 June 2020. City Wide may reply to such response, by 26 June 2020.
In its 4 June 2020 letter, City Wide requested that the date for the filing of interventions in the proceeding be delayed until two weeks after the date on which either the Commission denies City Wide’s disclosure request or Eastlink files any information that the Commission orders Eastlink to disclose. Eastlink took no position on City Wide’s extension request.
Given that Eastlink made a selective disclosure, which Commission staff considers to be unwarranted in the proceeding; Eastlink’s complete response would assist Commission staff in making a determination in relation to City Wide’s disclosure request; and all potential interveners would benefit from additional time to respond to any possible new information on the public record, Commission staff considers it appropriate to extend the deadline for submission of interventions in the proceeding.
Keeping the above in mind, and regardless of whether the disclosure request is approved or denied, Commission staff modifies the deadline to submit interventions in the proceeding from 15 June 2020 to 13 July 2020.
Original signed by
Director, Competitor Services & Costing Implementation
c.c.: Lyne Renaud, CRTC, email@example.com
Abderrahman El Fatihi, CRTC, firstname.lastname@example.org;
Lori MacLean : email@example.com
Stewart Cattroll: firstname.lastname@example.org
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