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Telecom Procedural Letter addressed to Natalie MacDonald (Eastlink) and David Pothier (City Wide Communications Inc.)

Ottawa, 10 July 2020

Our reference:  8662-E17-202002731

BY EMAIL

Ms. Natalie MacDonald
Vice-President, Regulatory Matters
Eastlink
6080 Young Street, 8th Floor
Halifax, Nova Scotia B3K 5L2
Regulatory.Matters@corp.eastlink.ca

M. David Pothier
President
City Wide Communications Inc.
140 Joseph Zatzman Drive
Dartmouth, Nova Scotia B3B 1M4
david@yourcitywide.com

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 of information

Dear Madam, Sir:

This letter addresses a request by City Wide Communications (City Wide), dated 4 June 2020, for disclosure of information filed in confidence by Bragg Communications Inc., carrying on business as Eastlink (Eastlink) to review and vary Telecom Order 2020-60 (TO 2020-60).

City Wide submitted that the public disclosure of the information by Eastlink is necessary to ensure a complete record in the application. City Wide claimed that the undisclosed information relates to “new circumstances” that Eastlink has allegedly faced since the issuance of TO 2020-60 and was used as justification to review and vary TO 2020-60 and allow Eastlink to impose credit limits on its wholesale customers. According to City Wide, in order to respond to those claims, interested parties must be able to understand these alleged new circumstances.

On 8 June 2020, Eastlink responded to City Wide’s request for disclosure of information agreeing that it 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 2020, City Wide requested that the Commission rule upon the original request submitted by City Wide on 4 June 2020, with respect to the disclosure of information from Eastlink.

On 12 June 2020, Commission staff issued a letter stating that a selective disclosure to City Wide would be unfair to other interveners and 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. It requested that Eastlink file a complete response to City Wide’s original request for disclosure, on the public record, of information filed in confidence.

On 19 June 2020, Eastlink submitted that nothing it had filed in confidence prevents interveners from commenting on its application and the information in question is competitively sensitive financial information, relates to its operations and customers, and would not otherwise be available to its competitors. Eastlink mentioned that specific conversations it has with its wholesale customers with respect to payment issues or other concerns are confidential, regardless of whether the specific customer is named, and the information filed in confidence in a specific paragraph of its application relates to the current Covid-19 pandemic and CNOC’s public request that wholesale customers be given financial relief from paying their monthly invoices. Eastlink also stated that the monthly recurring charges filed in confidence are not hypothetical, but are based on the end-user and capacity charges received from one unnamed wholesale customer, and Eastlink consistently treats this kind of information as confidential.

On 26 June 2020, City Wide reiterated its request that Eastlink be ordered to disclose on the public record any information that Eastlink filed in confidence in its application that did not identify specific wholesale customers. It noted a contradiction in Eastlink’s statement that the information filed in confidence in a specific paragraph of its application related to the Covid-19 pandemic and a request made by CNOC, while that same statement was precluded by Eastlink’s reference to specific conversations it had with its wholesale customers on payment issues or other concerns. With respect to the monthly recurring charges specific to a wholesale customer, City Wide believes that Eastlink should make a selective disclosure to the wholesale customer who is allegedly incurring those monthly recurring charges. City Wide also requested that Commission staff clarify when disclosure of information filed in confidence to only select parties would be appropriate.

Commission staff notes that requests for disclosure of information designated as confidential are addressed in light of sections 38 and 39 of the Telecommunications Act (the Act) and sections 30 and following of the CRTC Rules of Practice and Procedure (the Rules of Procedure). In evaluating a request, an assessment is 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 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 the degree of competition and the importance of disclosure of the information for the purpose of obtaining a fuller record. The factors considered are discussed in more detail in 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.

Commission staff has reviewed the request filed by City Wide as well as Eastlink’s response and considers that, based on the specific circumstances of this particular case, Eastlink must disclose on the public record some of the information it originally designated as confidential.

As a first step, Commission staff analyzed the information that Eastlink designated as confidential and assessed that it qualifies for confidential treatment under section 39 of the Act because it consists of financial and commercial information that is confidential and that Eastlink consistently treats in a confidential manner.
As a second step, Commission staff assessed the information that qualifies for confidential treatment. Commission staff is of the view that, with the exception of certain references alluding to customer and financial or commercial information, the information must be publicly disclosed as specified in the appendix to this letter. Such disclosure would enable other parties to better understand some of the arguments supporting Eastlink’s review and vary application and intervene meaningfully in the proceeding. The disclosure would also allow the Commission to make a more transparent and coherent decision that is informed by a comprehensive public record. Commission staff considers that, given the nature of the information to be disclosed, such disclosure is unlikely to result in specific direct harm to Eastlink or its wholesale customers and that any possible direct harm does not outweigh the public interest in disclosure.

With regards to City Wide’s request for clarification regarding selective disclosure, Commission staff considers that the information that Eastlink is instructed to disclose on the public record is sufficient to meet the disclosure requirements in this particular case.

Based on all of the above, Commission staff requests Eastlink to disclose the information specified in the appendix to this letter by filing with the Commission a revised abridged version intended to be placed on the public record, by 17 July 2020.

Given that all interveners, or potential interveners, would benefit from additional time to respond to the new information to be added to the public record, Commission staff considers it appropriate to extend the deadline for submission of interventions in the proceeding. Therefore, Commission staff modifies the deadline to submit interventions in the proceeding from 13 July 2020 to 24 July 2020. Eastlink may reply to any interventions by 31 July 2020.

Sincerely,

Original signed by

Lyne Renaud
Director, Competitor Services and Costing Implementation
Telecommunication Sector

c.c.: Distribution List:

Abderrahman El Fatihi, CRTC, (819) 953-3662, abderrahman.elfatihi@crtc.gc.ca
Shaw Communications Inc. regulatory@sjrb.ca
Quebecor Media Inc. (Videotron): regaffairs@quebecor.com
Canadian Network Operators Consortium (CNOC), regulatory@cnoc.ca

APPENDIX – DISCLOSURE OF INFORMATION DESIGNATED AS CONFIDENTIAL

Eastlink is to file with the Commission a revised abridged version of its 13 May 2020 application intended to be made available to the public, by 17 July 2020. The revised abridged version must disclose:
In paragraph 28 – All the information included in the original unabridged version, except:

In paragraph 29 – The entire paragraph, as it appears in the original unabridged version.
In paragraph 30 – Nothing (this paragraph is to remain the same as in the original abridged version).
In paragraph 31 – All the information included in the original unabridged version, except:

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