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Telecom - Commission Letter adressed to the Distribution list

Ottawa, 14 December 2021

Our reference:  1011-NOC2020-0366

BY EMAIL

Distribution list

RE: Telecom Notice of Consultation CRTC 2020-366, Call for comments regarding potential regulatory measures to make access to poles owned by Canadian carriers more efficient, as modified by Telecom Notice of Consultation 2020-366-1 – Disclosure of information designated as confidential

Dear recipients,

This letter addresses requests for disclosure of certain information designated as confidential by Bell Canada (Bell), Saskatchewan Telecommunications (SaskTel) and TELUS Communications Inc. (TELUS) in their responses to a request for information (RFI) issued by Commission staff as part of the proceeding initiated by Telecom Notice of Consultation 2020-366 (TNC 2020-366).

The RFI subject to the requests for disclosure was issued on 26 April 2021. Bell, SaskTel, and TELUS responded to the RFI on 7 June 2021.

On 28 June 2021, the Commission received requests for disclosure of information designated as confidential from Québecor Média Inc. (Québecor), Rogers Communications Canada Inc. (Rogers) and TekSavvy Solutions Inc. (TekSavvy).

On 12 July 2021, Bell, SaskTel, and TELUS filed a reply to the submitted requests with the Commission.

General principles

Requests for disclosure of information designated as confidential are addressed in light of sections 38 and 39 of the Telecommunications Act (the Act) as well as sections 30 to 34 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure.

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 section 39 of the Act. An assessment is then made as to whether disclosure of particular information is in the public interest; regard is generally had to whether the disclosure would 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 the information is more important to the ability of the Commission to obtain a full and complete record on which to make its decision. Further information regarding the general procedures and the factors considered may be found 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 made determinations with respect to each of the requests, which are considered in turn below.

Commission staff determinations

Bell(CRTC)26Apr21-1
SaskTel(CRTC)26Apr-1
TELUS(CRTC)26Apr21-1

Rogers and TekSavvy requested the disclosure of all information filed in confidence by Bell, SaskTel and TELUS regarding the total number of poles owned or managed by the ILECs, by province, and the number of these poles that are subject to a joint-use agreement. Commission staff considers this information to be eligible to be designated as confidential, as it falls within one or more categories under section 39(1) of the Act.

With respect to specific direct harm, Bell and SaskTel indicated that the disclosure of this information would permit current and future competitors to estimate the network footprint or relative coverage area of infrastructure in certain geographic regions, which would allow them to formulate more effective network or marketing strategies. Bell also indicated that the disclosure of the breakdown of the number of poles subject to joint-use agreements could permit current and future joint-use agreement holders to ascertain their bargaining power against Bell, while TELUS claimed that it would allow counterparties to have insight into TELUS’ alternatives to a negotiated agreement. TELUS also indicated that the disclosure would allow competitors to benchmark their own support structure assets against TELUS’ and enable them to develop business and network deployment strategies, causing them specific direct harm. Further, TELUS stated that it has several commercially negotiated agreements with electric utilities which contain confidentiality clauses that prohibit the public disclosure of the information being requested.

With respect to the public interest in disclosure, TekSavvy argued that the disclosure would allow intervenors to assess the scale of the support structure access issues that have been identified in this proceeding and determine the proportion of ILEC managed poles that are subject to the support structure access issues that are unique to poles subject to joint-use agreement. Rogers also stated that information should be available on telecom poles given that they are public goods, the duplication of which is not in the public interest.

Commission staff is of the view that disclosure of this information could result in some of the specific direct harm cited by Bell, SaskTel and TELUS. Commission staff also notes the comments made by TELUS regarding the confidentiality clauses in some of their agreements, which speak to the confidential nature of this information. However, Commission staff is also of the view that there is strong public interest in the disclosure of this information. Specifically, disclosing the total number of telecom poles and the number of poles subject to joint use agreements would allow parties to assess and provide submissions on the impacts in each province of measures that the Commission could potentially adopt. It would also provide insights into regional dynamics and into the extent to which joint-use agreements contribute to specific issues related to pole access in each province. The information is also highly aggregated within the provinces and contains no geospatial information on the specific location of ILECs poles.

Commission staff therefore considers that the public interest outweighs the likelihood of specific direct harm to the ILECs. The ILECs are to provide the information on the public record by 17 January 2022.

Bell(CRTC)26Apr21-2
SaskTel(CRTC)26Apr-2
TELUS(CRTC)26Apr21-2

Québecor and Rogers requested disclosure of all information filed in confidence by Bell, SaskTel and TELUS in the tables identifying (a) the number of permit applications received; (b) the number of permit applications that were granted within certain timelines; (c) the number of permit applications denied due to lack of spare capacity; (d) the number of permit applications denied due to lack of spare capacity and where that capacity was used within 60 days of that permit application being denied; and (e) any discrepancies regarding the number of reported permit applications in a. through c. Rogers and Québecor requested the information aggregated across all attachers. TekSavvy requested the disclosure broken down by attachers, with the name of the attachers redacted. Commission staff considers this information to be eligible to be designated as confidential, as it falls within one of the categories under section 39(1) of the Act.

With respect to specific direct harm, Bell, SaskTel and TELUS noted that the disclosure of the information broken down by attacher, as requested by TekSavvy, could allow intervenors to identify certain attachers, which could provide insights into the activities of those attachers. TELUS further added that it is obligated to keep the data confidential under an agreement that was approved by the Commission, and that by approving the Support Structure Licence Agreement with a confidentiality provision, the Commission has already determined that data in respect of applications by individual licensees is confidential.

Bell is not opposed to filing the aggregated information as requested by Québecor and Rogers in territories where there are sufficient requests to allow meaningful aggregation of the data. However, SaskTel indicates that even at an aggregate level, the relatively low number of poles owned directly by SaskTel and the low number of current facilities-based competitors do not allow meaningful aggregation in Saskatchewan. TELUS indicated that even the aggregated data would cause Telus specific direct harm by giving competitors the opportunity to get a general sense of commercially sensible information, such as capital expenditures, future plans, demand for access to TELUS’ support structures and status of permit applications.

With respect to the public interest, TekSavvy indicated that the information requested in this RFI goes to the core issues that are under review in this proceeding. Disclosure of this information would allow intervenors to further scrutinize and respond during later stages of this proceeding, contributing to the development of a robust factual record. Rogers argued that this information is necessary to provide interested parties with an understanding of the over-arching statistics provided in response to this question.

Commission staff is of the view that the information disaggregated by attachers has been properly designated as confidential. Staff agrees with the statements made by Bell, SaskTel and TELUS that the disclosure of the information could result in specific direct harm.

With regards to the public interest for disclosure, staff agrees with TekSavvy’s assessment that the information from this RFI is core to the issue of the proceeding. Prolonged permit application timelines and unjustified permit denials are some of the most significant barriers raised by parties to this proceeding. Having access to sufficient details is essential for further analysis and submissions from parties. However, Commission staff considers that information aggregated across all attachers is sufficient to allow for meaningful submissions on this point.

Considering the above, Commission staff finds that the public interest outweighs the likelihood of specific direct harm where the information can be sufficiently aggregated across all attachers, as requested by Québecor and Rogers. Accordingly, the ILECs are to file on the public record the following information by 17 January 2022:

Bell(CRTC)26Apr21-4 (b)(i) and (ii)
TELUS(CRTC)26Apr21-4 (b)(i) and (ii)

Québecor, Rogers and TekSavvy requested the disclosure of the average time it takes to complete each step (1) through (4) of the general permit request process, by magnitude of less than 50 poles, and more than 50 poles. Rogers and TekSavvy further requested the disclosure of the timeline, by project magnitude, for competition of step (6). Commission staff considers this information to be eligible to be designated as confidential, as it falls within one or more of the categories under section 39(1) of the Act.

With respect to specific direct harm, Bell and TELUS indicated that disclosure could enable competitors to compare their own processes against theirs which could allow them to develop business strategies.
With respect to the public interest, TekSavvy indicated that the information about make-ready timelines is highly relevant in this proceeding, as it would allow intervenors to assess which steps of the make-ready work process account for a disproportionate amount of delays. Québecor indicated that the information is very important to be able to demonstrate what they state are abusive tactics employed by Bell and TELUS.

Commission staff consider that disclosure of this information would allow intervenors to propose targeted solutions to improve make-ready work timelines, which would provide the Commission with a more detailed and complete record. Typically, the Commission has considered that the greater the importance of the information to the ability of the Commission to obtain a full and complete record, the more likely the public interest will outweigh the potential direct harm. Commission staff also notes that the information, which mostly consists of averages, is aggregated information.

Commission staff therefore considers that the public interest in disclosure outweighs the likelihood of specific direct harm. Accordingly, Bell and TELUS are to file this information with the Commission by 17 January 2022.

Commission staff notes Rogers’ comment that Bell declined to provide average timelines for step 3 and 4 in Ontario. Bell claimed that these steps are performed by the licensee in Ontario, and therefore the information is not available. In its reply to this disclosure request, Bell provided copies of correspondence with Rogers to support its claims. Based on the foregoing, staff is satisfied that the information provided by Bell is correct and that the filing by Bell of the average timelines for steps 3 and 4 in Ontario is not required.

Bell(CRTC)26Apr21-18 (a), (b), and (c)
TELUS(CRTC)26Apr21-18 (a) and (b)
SaskTel(CRTC)26Apr21-18 (b)

Rogers requested the full disclosure of the information filed in confidence by Bell, SaskTel and TELUS relating to (a) the identification of all electric utilities with whom the ILEC has a joint-use agreement, (b) the number of poles under each of such agreement and (c) whether any of the agreements grant the ILEC priority or preferential access, while Québecor requested that TELUS disclose their response to (a) and Bell to (a) and (c). Bell has filed its responses to (a), (b) and part of (c) in confidence. TELUS has filed its responses to (a) and (b) in confidence. SaskTel has filed its response to (b) in confidence.

Rogers argues that the information provided in (a), (b) and (c) is not competitively sensitive information and therefore has not been properly designated as confidential. Rogers argues that all of this information is known to the electric utilities with whom the ILECs have joint-use agreements. Rogers adds that it is well known that ILECs have joint-use agreement with electric utilities. Given that competitors do not generally own poles or negotiate with electric utilities, Rogers considers that the disclosure would not result in the harm claimed by the ILECs.

With respect to (a), Commission staff considers this information to be eligible to be designated as confidential. As indicated by Bell in their reply, the disclosure of the names of the electric utilities with whom the ILECs have joint-use agreement could give competitors insights into the ILECs footprints and expansion plans. This can reasonably be expected to prejudice their competitive position. Therefore, the information falls within one or more of the categories under section 39(1) of the Act.

With respect to (b), Commission staff considers this information to be eligible to be designated as confidential. TELUS and SaskTel both noted that the commercially negotiated agreements with the electric utilities would not allow the disclosure of the information requested on the public record without the consent of the utilities in question. Bell and TELUS further added that publicly disclosing details on their joint-use agreements with utilities would interfere with current and future negotiations and could provide insights into their business plans. This can be reasonably expected to prejudice their competitive position and affect their contractual negotiations. Therefore, the information falls within one or more of the categories under section 39(1) of the Act.

With respect to (c), Commission staff considers this information to be eligible to be designated as confidential. Bell noted that the disclosure of the names of the electric utilities with whom Bell has agreements with priority or preferential access terms could affect their ability to renegotiate similar terms or enable utilities to request more concessions in negotiations. This can reasonably be expected to affect their contractual negotiations. Therefore, the information falls within one or more of the categories under section 39(1) of the Act.

As a result, staff considers all information provided in response to this question to be eligible to be designated as confidential, and an assessment will be made on whether the disclosure of the information is in the public interest and whether it could cause specific direct harm.

With respect to specific direct harm, as indicated above, Bell claimed that the disclosure of the names of electric utilities with which Bell has negotiated joint-use agreements could give competitors valuable competitive insight into Bell’s footprint and network, as well as their expansion plans, thereby permitting competitors to develop more effective business strategies or even modify their own plans based on this insight. Bell and TELUS also indicated that disclosure would compromise their negotiating position with utilities and other joint-use partners. Bell added that the disclosure of whether the agreements contain clauses which grant priority or preferential access could affect their ability to negotiate or renegotiate similar terms in the future or enable utilities to request more concessions in negotiations.

SaskTel and TELUS also indicated that the joint-use agreements are commercially negotiated agreements which contain confidentiality clauses, and therefore release of any aspect of these agreements including the number of poles subject to the agreement would require the consent of the electrical utility.

With respect to the public interest in (a), Québecor claimed that the public interest favors disclosure given the harmless nature of the information requested. With respect to the public interest in (c), Québecor indicated that the fact that Bell has priority or preferential access to poles subject to joint-use agreements is deeply unfair, and that this is one of the most important issue to be addressed by the proceeding.

Québecor indicated that such disclosure would contribute significantly to the development of a full and comprehensive public record, and added that parties would be hampered in their ability to conduct in-depth analysis without this information.

Commission staff is of the view that the ILECs provided legitimate reasons as to why the release of this information is likely to prejudice their competitive and negotiating position. Commission staff also notes the disaggregated nature of the requested information. Commission staff is not convinced that this level of detail is necessary in order for parties to make submissions or propose regulatory solutions.  
Commission staff therefore considers that the likelihood of specific direct harm outweighs the public interest in disclosure. No further disclosure of the information is required.

Bell(CRTC)26Apr21-19 (a) and (g)

Rogers requested the disclosure of the joint-use agreement between Bell and NB Power as well as the list of projects for which pole attachers requested and completed installation on NB Power poles, filed in confidence by Bell in response to Bell(CRTC)26Apr21-19 (a) and (g).

Rogers argues that the information provided in (a) and (g) is not competitively sensitive information and therefore has not been properly designated as confidential. With respect to (a), Rogers indicated that the mere fact that joint-use agreements are commercial agreements do not make all of their terms confidential. With respect to (g), Rogers indicated that the information is not commercially sensitive due to the historical nature and the absence of any requirement to identify location or proponents associated with each projects.
With respect to (a), Commission staff considers this information to be eligible to be designated as confidential. Bell indicated that the agreement has been consistently treated in a confidential manner. Bell also indicated that since joint-use agreements are periodically renewed and renegotiated, the disclosure could have an adverse effect in their negotiations. Therefore, the information falls within one or more of the categories under section 39(1) of the Act. However, staff also notes Rogers’ assertion that the agreement should be filed on the public record with the confidential information redacted. In Broadcasting and Telecom IB 2010-961, the Commission indicated that at the time a party files an information as confidential, it must provide an abridged version on the public record, which must omit only the confidential information in the document. Staff is of the view that Bell should provide an abridged version of the agreement on the public record.

With respect to (g), Commission staff considers this information to be eligible to be designated as confidential. As indicated by Bell, the disclosure of this information could allow parties to extrapolate the activities of other attachers in New Brunswick. This can reasonably be expected to prejudice the attachers’ competitive positions. Therefore, the information falls within one or more of the categories under section 39(1) of the Act.

As a result, with regards to (a), Bell Canada is to file an abridged version on the public record by 17 January 2022. With regards to (g), the information is eligible to be designated as confidential, and an assessment will be made on whether the disclosure of the information is in the public interest and whether it could cause specific direct harm.

With respect to specific direct harm, Bell indicated that the information requested in (g) is highly disaggregated and would allow competitors in New Brunswick to extrapolate the commercial activities of other attachers in the province, thereby conferring on the competitors an undue advantage which could reasonably be foreseen to cause specific harm to other parties operating in New Brunswick.
With respect to the public interest, Rogers did not provide arguments to justify how the information requested is in the public interest.  

Commission staff therefore considers that the likelihood of specific direct harm outweighs the public interest in disclosure. No further disclosure of the information requested in (g) is required.

Further processes

Further processes will be announced via procedural letters and/or updates to the notice at future dates.
Sincerely,

Original signed by

Lisanne Legros
Director, Telecommunications Networks Policy
Telecommunications Sector

c.c.      Julien Bernier, CRTC, julien.bernier@crtc.gc.ca

Attachment: Distribution List

Distribution List for NOC 2020-366

grant.logan@me.com
mlebourdais@cariboord.ca
Kristine.bienert@bcuc.com
dfell@eorn.ca
metaviews@gmail.com
cbbcregulatory@ourtrust.org
langdeau.philippe-etienne@hydroquebec.com
info@canwisp.ca
economic.development@rdbn.bc.ca
bchydroregulatorygroup@bchydro.com
david.urbach@zayo.com
rtagami@ubcm.ca
ben@communityfibre.ca
regulatory@cnoc.ca
warren@rmalberta.com
caroline@connexionmatawinie.org
info@firstmile.ca
regulatory@bcba.ca
howard.randell@gov.bc.ca
jdemers@fqm.ca
francois.bureau@mcc.gouv.qc.ca
mcaron@mrctemis.ca
bell.regulatory@bell.ca
cedwards@ccsaonline.ca
mcarriere@argenteuil.qc.ca
regulatoryconsultations@fcm.ca
document.control@sasktel.com
c.melancon@eeyou.ca
carl.macquarrie@corp.xplornet.com
regulatory.matters@corp.eastlink.ca
kent@electricity.ca
stephen.scofich@tbaytel.com
regulatory@rci.rogers.com
jonathan.holmes@itpa.ca
Regulatory.Affairs@TELUS.COM
kim.miller@telus.com
christopher.ewasiuk2@sjrb.ca
regulatory@sjrb.ca
dennis.beland@quebecor.com
leonard.eichel@cogeco.com
jlawford@piac.ca
regulatory@teksavvy.ca
regulatory@beanfield.com
regulatory@iristel.com
regulatoryaffairs@nwtel.ca
regulatory@ssimicro.com
jdumoulin@iristel.com
office@newnorth.ca
support@archtechcomputers.ca
support@tnwcorp.com

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