Telecom Commission Letter addressed to Samer Bishay (Iristel Inc.) and Stephen Schmidt (TELUS Communications Inc.)
Ottawa, 29 October 2020
Our reference: 8662-J64-202005595
Mr. Samer Bishay
Chief Executive Officer
Mr. Stephen Schmidt
Vice-President, Telecom Policy & Chief Regulatory Legal Counsel,
TELUS Communications Inc.
RE: Application by Iristel Inc. to Review, Vary and Stay Telecom Decision CRTC 2020-268 & Telecom Notice of Consultation CRTC 2020-269 Staff Letter on request for disclosure
By letter dated 15 September 2020, TELUS Communications Inc. (TELUS) requested that the Commission direct Iristel Inc. (Iristel) to disclose, pursuant to ss. 33(1) and ss. 33(2) of the Rules: Footnote1
- a copy of Appendix 2 to the Application by Iristel to Review, Vary and Stay Telecom Decision CRTC 2020-268 & Telecom Notice of Consultation CRTC 2020-269 (the Application), dated 2 September 2020 and posted to the Commission’s website on 8 September 2020, in conformance with paragraph 8 of Information Bulletin 2010-961; and
- all the percentages that were abridged in paragraphs 57 and 58 of the Application or, alternatively, that Iristel release these percentages to TELUS.
TELUS also requested that the Commission extend the deadline for submitting interventions as necessary to allow TELUS at least 14 days to complete its intervention after the disclosure of the information requested.
TELUS stated that it would be reasonable for Iristel to redact the content of Appendix 2 so that the names of Commission staff and the staff of Iristel’s customers are not revealed. However, the name of any customer (direct or indirect) must not be redacted if it is a customer that has been identified on the public record in the proceedings which led to Telecom Decision 2017-456 Footnote2 (TD 2017-456) or Telecom Decision 2020-268 Footnote3 (TD 2020-268), nor should any telephone numbers be redacted if they have been made public in these proceedings. Additionally, dates, times and the essence of any of the conversations are information that should not be redacted.
By Commission staff letter dated 21 September 2020, pursuant to ss. 33(3) of the Rules, Iristel was allowed to file a reply to TELUS’ request for disclosure.
Iristel’s reply, dated 28 September 2020, stated that Iristel was prepared to disclose the information regarding traffic statistics found in paragraphs 57 and 58, and simultaneously filed a revised abridged version of the document that disclosed that information on the public record.
Iristel stated that the information contained in Appendix 2 is confidential correspondence between Iristel, its customer, and Commission staff. Iristel stated that, amongst other confidential information, the correspondence contains information with respect to traffic volumes that has never been placed on the public record. Iristel emphasized that its commercial agreements prohibit it from publicly disclosing such information. Iristel objected to the public disclosure of Appendix 2, arguing that any such action would harm Iristel’s relationship with its customer and would result in specific direct harm to Iristel that would not be outweighed by any public interest.
Commission Staff Analysis and Determination
As Iristel agreed in part to TELUS’s request, Commission staff’s analysis and determinations will focus on the request to disclose Appendix 2 in this section. 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 s. 39 of the Telecommunications Act (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 the information for the purpose of obtaining a fuller record. The factors considered are discussed in more detail in s. 39 of the Act and Information Bulletin 2010-961 Footnote4 .
Regarding Iristel’s opposition to disclosing correspondence between Iristel, its customer and Commission staff, Commission staff considers that this information, designated by Iristel as confidential, does not appear to fall within s. 39 of the Act and its disclosure would be required. But even if it fell within s. 39 of the Act, staff considers that it should be disclosed, as explained below.
In paragraphs 76 to 78 of theApplication,Iristel referred to the correspondence in Appendix 2, indicating that Commission staff were fully aware as to how Iristel had implemented TD 2017-456, including how Iristel had interpreted its scope. In Commission staff’s interpretation, Iristel submitted evidence in Appendix 2 in order to support its position that Commission staff was aware of, and did not object to, the steps Iristel took to comply with TD 2017-456. Commission staff considers that the evidence submitted is essential to comprehend Iristel’s argument and there is a public interest in allowing all parties to fully understand the argument in order to allow a more complete response. Commission staff considers that any specific direct harm that would likely result from the disclosure of this information is outweighed by the public interest in its disclosure.
With respect to Iristel’s opposition to the disclosure of correspondence which relates to traffic volumes and its customer’s names, Commission staff considers that this information could fall within paragraph 39(1)(c)(iii) of the Act, as its disclosure could reasonably be expected to affect contractual or other negotiations of any person. However, Commission staff considers that there is public interest in disclosing this information as Iristel relies on it as evidence supporting its Application.
With respect to Iristel’s argument that disclosure would harm its relationship with its customer, Commission staff is of the view that Iristel can redact the names of any customer (direct or indirect), customer’s staff, Commission staff or telephone number in an abridged version. Commission staff considers that these elements are not essential to comprehend Iristel’s argument. However, Commission staff considers that a name or telephone number must not be redacted if it is the name of a customer or customer’s staff or telephone number that has been identified on the public record of the proceeding which led to TD 2017-456 or TD 2020-268. Additionally, dates, times, and the essence of any conversations are information that must not be redacted.
In light of the above, Commission staff considers that the public interest outweighs any potential harm claimed by Iristel. Therefore, Commission staff concludes that Appendix 2 is to be filed with the Commission, and served on all parties, by 3 November 2020 to be disclosed on the public record.Should it see necessary to do so, Iristel can redact the content of Appendix 2 so that the names of Iristel’s customers, customer’s staff, Commission staff, and telephone numbers are not disclosed, and file an abridged version in accordance to Information Bulletin 2010-961. However, as suggested by TELUS, the name of any customer (direct or indirect) and telephone number must not be redacted if identified on the public record of the proceedings which led to TD 2017-456 or TD 2020-268. Additionally, dates, times or the essence of any of the conversations are information that should remain public.
Resumption of the Application Process
In the Commission staff letter dated 21 September 2020, the deadline for the filing of interventions and answers to Iristel’s application was suspended, until further notice, pending Commission’s staff determination on TELUS’ request for disclosure. In response to TELUS’ request regarding the delay to file of interventions, Commission staff considers that 14 days after the information requested is disclosed allows sufficient time for parties to complete and file their interventions.
Accordingly, interested parties may file interventions on Iristel’s Application, serving a copy on Iristel, 14 days after the redacted version of Appendix 2 is posted on the Commission’s website.
Iristel may file a reply within 10 days after the deadline for intervening in the proceeding, serving a copy on interested parties.
Original signed by
Director, Dispute Resolution and Regulatory Implementation
c.c.: Tacit Law Regulatory, email@example.com
John Lawford, Public Interest Advocacy Centre, firstname.lastname@example.org
Geoff White, Competitive Network Operators of Canada, email@example.com
Howard Slawner, Rogers Communications Canada Inc., firstname.lastname@example.org
Stephen Schmidt, TELUS Communications Inc.,email@example.com
Marc Lange, firstname.lastname@example.org
Baruch Herzfeld, ZenoRadio email@example.com
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