Search

Telecom Order CRTC 2022-184

PDF version

Ottawa, 7 July 2022

Public record: 8740-B2-202103993

Bell Canada – Disaggregated Broadband Service

Summary

The Commission finds that the Common Language Location Identifier code and the address of a central office (CO) enabled for Disaggregated Broadband Service (DBS) should remain confidential. The Commission further finds that, when a competitor requests this location information from Bell Canada, Bell Canada can require the competitor to sign a non-disclosure agreement (NDA) before providing the requested information.

The Commission denies TekSavvy Solutions Inc.’s request to include the NDA in Tariff Notice (TN) 7632 for review and comments. For TN 7632 and the associated DBS-enabled CO, the Commission determines that the start date of the three-year transition period was 13 August 2021, eight weeks after the publication of TN 7632.

For future Bell Canada TNs that update the list of DBS-enabled COs, the Commission determines that the three-year transition period will start two weeks after the publication of the TN.

Background

  1. In Telecom Regulatory Policy 2015-326 (the Regulatory Policy), the Commission determined that aggregated wholesale high-speed access (HSA) services would be phased out for each incumbent carrier in the geographic markets where the disaggregated HSA service is in service. In order to provide competitors sufficient time to invest in, migrate to, or negotiate appropriate alternatives, the Commission determined that there should be a three-year phase-out period once the disaggregated service is implemented.
  2. However, the Commission did not specify how competitors would be informed that the disaggregated HSA service has been implemented at a specific head-end or central office (CO) and that the phase-out period has therefore started at that particular location.

Application

  1. On 16 June 2021, Bell Canada filed Tariff Notice (TN) 7632 in which it proposed changes to its Access Services Tariff 7516 – Item 151 – Disaggregated Broadband Service (DBS) to add a list of COs where DBS (Bell Canada’s name for its disaggregated wholesale HSA service) is now in service.
  2. In its proposed tariff pages, Bell Canada identified a single CO enabled for DBS. The company provided the name of the city in which DBS would be in place and the effective in-service date (5 May 2021) on the public record. The company filed the Common Language Location Identifier (CLLI) code and address of the CO in confidence. Bell Canada proposed to provide the confidential CO location information upon demand to competitors that have signed a non-disclosure agreement (NDA) with the company.
  3. TekSavvy Solutions Inc. (TekSavvy) submitted an intervention to this TN on 19 July 2021.
  4. The Commission approved on an interim basis the application in Telecom Order 2021-241, dated 27 July 2021.
  5. Bell Canada filed its reply on 29 July 2021.
  6. The Commission issued requests for information (RFIs) to both TekSavvy and Bell Canada on 24 August 2021. Responses were received on 9 September 2021. 
  7. Bell Canada filed its reply to the RFI responses on 16 September 2021 and TekSavvy filed its reply on 23 September 2021.

TekSavvy’s intervention

  1. TekSavvy submitted that, since TN 7632 is the first filing of a notice that DBS is in service at a specific geographic market, it will form a precedent as disaggregated high-speed access is brought into service by other incumbent carriers across Ontario and Quebec. As such, the Commission should provide guidance for the following:
    • what can be claimed as confidential;
    • what is sufficient notice for this and future TNs, and;
    • what role, if any, should NDAs play?
  2. TekSavvy specifically requested that, when incumbents file TNs updating their existing tariffs to reflect where DBS is in service, the location of where DBS is in service be made public. TekSavvy added that the three-year transition period established in the Regulatory Policy should begin when the TN is published on the Commission’s website.
  3. If, however, the Commission determines that incumbents can file the location where DBS is in service in confidence and that this location information can be limited to those parties that sign an NDA, TekSavvy submitted that the Commission should start the three-year transition period eight weeks after the publication of the TN. This approach would allow interested parties to sign the NDA and possibly still have a full three-year transition, as required by the Regulatory Policy.
  4. TekSavvy requested that the Commission provide guidance on the requests it has made about this TN for all incumbents in Ontario and Quebec. The Commission finds that, since TN 7632 is an application filed by Bell Canada that deals with disaggregated HSA service in Bell Canada’s COs, the Commission’s determinations will only apply to Bell Canada.

Issues

  1. The Commission has identified the following issues to be addressed in this order:
    • Should the location of the DBS-enabled CO be disclosed on the public record or be kept confidential, with Bell Canada allowed to require competitors to sign an NDA to obtain the information?
    • What should be the start date of the three-year transition period for this tariff application and for future Bell Canada tariff applications that update the list of DBS-enabled COs?

Should the location of the DBS-enabled CO be disclosed on the public record or be kept confidential, with Bell Canada allowed to require competitors to sign an NDA to obtain the information?

Positions of parties
Disclosure of location information
  1. In its TN, Bell Canada argued that the release of the location-related information would provide the public with specific information on the location of its COs that would not otherwise be available to them, which could jeopardize the company’s facilities and those of its competitors. Bell Canada argued that the release of such information could result in damage and material financial loss, as well as causing specific direct harm to the company. Instead, Bell Canada proposed to provide the location-related information to competitors that have signed NDAs with the company.
  2. TekSavvy submitted that Bell Canada did not provide sufficient evidence to justify its claim of confidentiality for the location of the CO where DBS is enabled. TekSavvy argued that it is not sufficient to assert that releasing the information on the public record would cause harm in order to justify the confidentiality of the location information.
  3. TekSavvy submitted that there is substantial public interest in the disclosure of the location where DBS is in service. TekSavvy argued that disclosure of the location information is critical for the implementation of disaggregated wholesale access since it would support the implementation of the disaggregated framework in a smooth, efficient, and effective manner with subsequent benefits for consumers.
  4. In TekSavvy’s view, any harm in disclosure is outweighed by the need to have this information on the public record. Accordingly, TekSavvy requested that the Commission require Bell Canada to provide the location of where DBS is in service, as part of the public record.
  5. In its reply, Bell Canada argued that there is real potential harm to its networks and those of its customers because of the significant role its networks play in ensuring public safety and meeting ongoing communications needs. It is consistent with industry practices to keep the CO location information confidential, except in emergency situations. Bell Canada added that it does not reveal the specific location of its COs in order to protect the integrity of its networks and to reduce potential threats.
  6. Bell Canada submitted that in the proceeding initiated by Telecom Notice of Consultation 2020-187, it treated the CLLI code, civic address, and latitude and longitude of its COs as confidential. The Commission upheld the confidentiality of this information in its letter dated 28 September 2020.  
  7. Bell Canada also argued that the exact locations of the points of interconnection for disaggregated services are not published in other providers’ tariffs, such as those of Videotron Ltd.
Use of NDAs
  1. TekSavvy submitted that it has several concerns with NDAs in the event that the Commission decides to permit their use to limit access to information regarding where DBS is in service.
  2. TekSavvy argued that NDAs are not required where confidentiality is written into agreements between incumbents and their competitors, such as a particular existing wholesale agreement between Bell Canada and TekSavvy that TekSavvy referenced in confidence. According to TekSavvy, NDAs are not required for the current application since the information at issue is already protected by the referenced agreement. 
  3. TekSavvy also submitted that the use of an NDA limits the access to information necessary to provide wholesale HSA services and represents a control of the information required to fulfill the goals of the Regulatory Policy. TekSavvy added that NDAs open the door for the privatization of the regulated wholesale access regimes. According to TekSavvy, if information necessary to provide wholesale HSA services is limited by an NDA, receipt of, or access to, that information may be subject to negotiated commercial off-tariff terms.
  4. TekSavvy further submitted that if NDAs are to be required, a draft of the NDA should be filed as a part of the TN for comment and review by competitors and the Commission.
  5. In its reply, Bell Canada submitted that TekSavvy’s justification for why existing provisions in agreements are sufficient such that an NDA is not required was filed in confidence and, as such, Bell Canada was not able to comment on TekSavvy’s justification. Bell Canada added that it believes that TekSavvy is relying on the confidentiality provisions in section 9 of the Master Communications Agreement (MCA). The information protected under the MCA only covers the information provided for under that Agreement.
  6. Bell Canada further submitted that NDAs should not be considered as commercial off-tariff agreements. Off-tariff agreements are intended for providing services that would be subject to a tariff at rates and conditions negotiated between two parties. The purpose of an NDA is to protect confidential information for security reasons. Bell Canada added that NDAs are already in use for various services including for DBS in order for DBS customers to access end-user in-service reports.
  7. With respect to having the Commission and competitors comment on an NDA, Bell Canada argued that the Commission did not see the need to review the use of an NDA for end-user in-service reports when it approved the DBS tariff. Bell Canada added that NDAs are well understood, simple, and do not require extensive revisions and multiple drafts.
Commission’s analysis
  1. The Commission 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 Canadian Radio-television and Telecommunications Commission Rules of Practice and 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 Broadcasting and Telecom Information Bulletin 2010-961.
  2. The Commission considers that the information on the location of the DBS-enabled COs is required by the competitors in order to plan their transition to the disaggregated HSA service at DBS-enabled sites. Therefore, the public interest in disclosure is high, specifically for competitors. However, the Commission considers that the disclosure of the location of the DBS-enabled COs on the public record could cause specific harm to Bell Canada. Disclosing the location increases the security risks and puts the integrity of Bell Canada’s networks at risk. Therefore, the level of harm in disclosure is also high.
  3. The Commission further notes that the CLLI codes and CO addresses have been treated as confidential in the past and that the Commission has upheld this treatment in previous proceedings.
  4. The Commission considers that disclosure of confidential information under NDAs has been used as a means to provide confidential information to parties that require it in past proceedings. For example, in Telecom Decision 2021-280, the Commission maintained the confidentiality of location information for incumbent local exchange carriers and cable carriers while allowing disclosure to intervenors under an NDA. Also, as submitted by Bell Canada, disclosure under NDAs is already used when competitors request the DBS end-user in-service reports.
  5. Accordingly, the Commission considers that the specific direct harm in disclosure outweighs the public interest and therefore determines that the CLLI codes and CO addresses of DBS-enabled COs are to remain confidential and not be released on the public record. However, given that competitors require this information to plan their transition to the disaggregated HSA service, competitors should be able to obtain this information from Bell Canada. The Commission further determines that, when a competitor requests this location information from Bell Canada, Bell Canada is to provide the location information but be allowed to require the competitor to sign an NDA before providing the requested information.
  6. With regard to TekSavvy’s assertion that the required provisions for confidentiality are included in an existing wholesale agreement, the Commission notes that Bell Canada could not comment on TekSavvy’s assertion as it was filed in confidence. In its reply, Bell Canada instead referred to the MCA, Section 9. In addition, the Commission notes that TekSavvy has not brought this argument forward for other NDAs and has, in any case, already agreed to sign the NDA associated with this TN after reviewing it. The Commission therefore finds that no further action is required regarding the assessment of the applicability of the existing wholesale agreement.
  7. The Commission considers that TekSavvy has not provided evidence to support its claims that the NDA approach (i) improperly controls information needed to fulfill the goals of the Regulatory Policy, (ii) will open the door for privatization of wholesale access regimes, or (iii) will render access to the information subject to negotiated commercial off-tariff terms. Therefore, no further action by the Commission is required regarding these concerns.
  8. With regard to TekSavvy’s request to review and approve the NDA, the Commission notes that NDAs are business agreements between two private entities and that it is not Commission practice to approve NDAs.
  9. The Commission considers that the use of NDAs for sharing confidential information is appropriate and that it is not necessary for the Commission to review the NDAs since they are standard agreements often used by telecommunications companies. The Commission denies TekSavvy’s request to include the NDA in the TN for review and comments.
  10. Further, the Commission expects that the NDAs will be strictly limited to the disclosure of CLLI codes and addresses of the DBS-enabled COs.

What should be the start date of the three-year transition period for this tariff application and for future Bell Canada tariff applications that update the list of DBS-enabled COs?

Positions of parties
  1. TekSavvy submitted that if the location of a CO where DBS is in service is to be disclosed on the public record, the three-year timeline for the transition period should start when the incumbent files the TN with the location information of the DBS-enabled CO.
  2. TekSavvy further submitted that if the location is not made publicly available, the Commission should start the three-year transition period eight weeks after the publication of the TN. The additional eight weeks will provide sufficient time to competitors to obtain the location information after signing the NDA and allow for the required full three-year transition period.
  3. TekSavvy argued that, if the location of the in-service DBS-enabled CO is not made publicly available, competitors will only be able to determine the location of the in-service DBS-enabled CO after the countdown for the transition plan has already begun. The three-year transition period is required to provide competitors sufficient time to invest in, migrate to, or negotiate appropriate alternatives to aggregated wholesale HSA services.
  4. TekSavvy submitted that TN 7632 is the only notice received by the competitors according to which a CO had been DBS-enabled and by extension that the three-year transition period had been triggered at that specific CO. TN 7632 indicated that DBS was in-service at a Toronto CO as of 5 May 2021. Bell Canada is therefore obligated to provide aggregated wholesale HSA services at that CO until 5 May 2024.
  5. TekSavvy noted that TN 7632 was filed on 16 June 2021, six weeks after the Toronto CO was DBS-enabled on 5 May 2021. The lapse between the DBS in-service date and the date on which the tariff notice was filed represents time lost (42 days) with respect to the three-year period for competitors to prepare for the transition. Shortly after the publication of the TN, TekSavvy requested the location information for the DBS-enabled CO from Bell Canada. The time required for execution of the NDA process to obtain the location information further reduced the transition period.
  6. Bell Canada submitted that the date it enables DBS at a CO is the correct starting point for the three-year transition period. However, if the Commission determines otherwise, the date should be, at a minimum, the date the TN is filed.
  7. TekSavvy responded that Bell Canada’s submission does not address the potentially significant amount of time between the date on which the TN was filed and the date on which the competitor will have all the information it needs about the location at which the three-year transition period has started. TekSavvy noted that for the current TN, this included the time required for Bell Canada to send TekSavvy the NDA after requesting it and the time required by TekSavvy to review the language in the NDA to identify the risks, if any, it created.
  8. According to Bell Canada, the NDA in this situation is simple and does not need extensive reviews from either party. Therefore, TekSavvy’s internal process delays should not impact the three-year timeframe for the phase-out period.
  9. In an RFI response, Bell Canada argued that, now that the NDA document has been created,Footnote 1 signing the NDA for future CO locations should be a matter of a few business days after publication of the TN. Bell Canada submitted that it would typically provide the NDA within two business days of a customer’s request and the address information within two business days of receiving the signed NDA. The review, signature, and return of the NDA to Bell Canada are under the customer’s control. After the initial NDA is signed, customers can receive all future updates for the term of the NDA upon request, during the NDA’s contemplated five-year term, without having to sign a new one. Bell Canada submitted it would not be opposed to extending the term of the NDA for a longer period of time.
  10. According to Bell Canada, there is no need for TekSavvy’s proposed eight-week addition to the three-year phase-out period. TekSavvy’s request for such an extension is excessive and constitutes a review and vary of the Commission’s determinations in the Regulatory Policy that TekSavvy has not justified.
Commission’s analysis
  1. In the Regulatory Policy, the Commission determined that, when a CO or head-end was enabled to support the disaggregated HSA service, there would be a three-year phase-out period to allow competitors sufficient time to plan their migration from the aggregated service to the disaggregated service. The Commission did not specifically address regulatory obligations or guidelines on how the information on the location information for enabled COs or head-ends should be relayed to competitors and the process surrounding the relaying of information.
  2. Under Bell Canada’s approach, competitors are informed through a TN that DBS has been enabled at a CO in a particular exchange on a specified date (the in-service date), but the specific location of the CO is kept confidential and will be made available to competitors that request the information and sign an NDA. As a result, a process is required for competitors to gain access to the location information after a TN has been submitted. TN 7632 is the first such TN that Bell Canada has filed, but the company indicated that it would provide updates to the list of DBS-enabled COs through future TNs.
  3. With respect to Bell Canada’s argument that TekSavvy’s requests regarding the start date for the three-year transition constituted a review and vary of the Regulatory Policy, the Commission notes that in Telecom Information Bulletin 2011-214, the Commission outlined the criteria it would use to assess review and vary applications filed pursuant to section 62 of the Act. Specifically, the Commission stated that applicants must demonstrate that there is a substantial doubt as to the correctness of the original decision, for example due to (i) an error in law or in fact, (ii) a fundamental change in circumstances or facts since the decision, (iii) a failure to consider a basic principle which had been raised in the original proceeding, or (iv) a new principle which has arisen as a result of the decision.
  4. The Commission notes that Bell Canada has not filed any evidence supporting its argument. In the Regulatory Policy, the Commission made no determination on exactly how locations of DBS-enabled COs would be disclosed to the competitors.
  5. The Commission considers that TekSavvy did not submit that there is substantial doubt, but rather is just seeking clarity. TekSavvy is not suggesting that the length of the transition period of three years determined in the Regulatory Policy be modified. Instead, TekSavvy is proposing to set a specific date for the start of the transition period.
  6. Although not explicitly stated in the Regulatory Policy, the Commission considers that the intent of the determination regarding the three-year phase-out period was to provide competitors with a full three years to transition once the existence of a newly enabled CO location was known to them.
  7. The Commission determines that the three-year phase-out period begins only after competitors have had reasonable time to execute the NDA process with Bell Canada in order to learn which new location is enabled.
  8. The Commission notes that Bell Canada filed TN 7632 on 16 June 2021 with a proposed 5 May 2021 in-service date for the DBS-enabled CO. If the three-year phase-out period was to begin on the proposed in-service date, competitors would not have the full three-year period to transition to disaggregated HSA service at that CO.
  9. The Commission notes that after TN 7632 was published, there were significant delays in carrying out the NDA process initiated by TekSavvy for obtaining the location information for the DBS-enabled CO from Bell Canada.
  10. The Commission further notes that both companies played a role in the delays surrounding the process. Following TekSavvy’s request for the location information, Bell Canada required several weeks to send the NDA to TekSavvy. The Commission notes that this delay should not reoccur for future TNs now that an NDA has been utilized and that Bell Canada has filed a simplified NDA template in this proceeding. TekSavvy then required a number of weeks to review the NDA before signing it.
  11. Given the date that TekSavvy subsequently received the location information of the DBS-enabled CO, the Commission determines that 13 August 2021 was the appropriate start date of the three-year transition period.
  12. With respect to future TNs that provide amendments to the list of DBS-enabled COs, the Commission notes that there would be two scenarios for competitors: those that have not signed an NDA for an earlier TN, and those that have previously signed an NDA.
  13. For competitors that have not signed an NDA, the Commission notes that, as a result of requests for location information regarding TN 7632, the NDA process has been successfully executed, at least between TekSavvy and Bell Canada. Bell Canada has filed a sample of the NDA with the Commission and it is publicly available for other competitors to peruse. Accordingly, the Commission expects that the process for obtaining updated information related to DBS-enabled CO locations for future TNs will be quicker than in the case of TN 7632.
  14. For future Bell Canada TNs that update the list of DBS-enabled COs, the Commission considers that a two-week period provides sufficient time for a competitor that has not already signed an NDA to send the request to Bell Canada, receive, review, sign, and send the NDA, and receive the information from Bell Canada. This takes into consideration that at least one NDA has been successfully executed and a sample NDA was filed in the TN 7632 proceeding.
  15. The Commission further considers that, for competitors that have not already signed an NDA, the two-week period for the NDA process is to begin at the time the TN is published. The three-year transition period will then start at the end of the two-week period. This approach provides competitors that have not signed an NDA a reasonable period of time to carry out the NDA process to learn the location of any newly-enabled CO and allows them the full three-year period to transition to the disaggregated HSA service.
  16. Competitors that have previously signed an NDA for CO location information will be able to obtain the location information for newly DBS-enabled COs by making a request without signing any additional NDAs during the term of the NDA. The Commission notes Bell Canada’s submission that there would be a minimum delay of two business days for those competitors to obtain the requested information.
  17. For future Bell Canada TNs that update the list of the DBS-enabled COs, the Commission considers that, in line with the above for competitors that have not signed an NDA, it would be administratively efficient to maintain a two-week period after the publication of the TN for competitors that have already signed an NDA to obtain the location of the newly enabled COs.
  18. In light of the above, for future Bell Canada TNs that update the list of DBS-enabled COs, the Commission determines that the three-year transition period for all competitors shall start two weeks after the publication of such TNs.

Conclusion

  1. The Commission finds that the CLLI codes and addresses of COs enabled for DBS remain confidential and should not be released on the public record.
  2. The Commission finds that, when a competitor requests the location information from Bell Canada, Bell Canada can require the competitor to sign an NDA before providing the requested information.
  3. The Commission denies TekSavvy’s request for the Commission to include the NDA in the TN for review and comments.
  4. For TN 7632 and the associated DBS-enabled CO, the Commission determines that the start date of the three-year transition period was 13 August 2021.
  5. For future Bell Canada TNs that update the list of DBS-enabled COs, the Commission determines that the three-year transition period will start two weeks after the publication of the TN.

Policy Directions

  1. The 2019 Policy DirectionFootnote 2 states that the Commission should consider how its decisions can promote competition, affordability, consumer interests, and innovation.
  2. The Commission has reviewed the application in light of the 2019 Policy Direction and has considered its aspects to the extent necessary, using measures that are efficient and proportionate to their purpose.
  3. In compliance with subparagraph 1(b)(i) of the 2006 Policy Direction,Footnote 3 approval of this application advances the policy objective set out in paragraph 7(f)Footnote 4 of the Act.
  4. Accordingly, a timely and more efficient implementation of disaggregated wholesale HSA services better promotes affordability and consumer interests.

Secretary General

Related documents

Date modified: