Telecom - Commission Letter addressed to Dean Proctor (SSi Canada)

Ottawa, 28 February 2022

Our reference: 8646-N1-202108175

BY E-MAIL

Dean Proctor
Chief Development Officer
SSi Canada
356B Old Airport Road
Yellowknife, NT 
X1A 3T4
regulatory@ssimicro.com

Re:      Part 1 application filed by Northwestel Inc. dated 6 December 2021 – Response to SSi Canada’s Request for Disclosure dated 4 February 2022

Dear Dean Proctor:

On 11 January 2022, Commission staff issued a Request for Information (“RFI”) to Northwestel Inc. (“Northwestel”).

On 21 January 2022, Northwestel responded to the RFI. In its response, it designated certain information as confidential.

On 25 January 2022, Commission staff issued a letter establishing a timeline for interested parties to request disclosure of information designated as confidential in response to its RFI.

On 4 February 2022, the Commission received a letter from SSi Micro Ltd., doing business as SSi Canada (“SSi”). With respect to Northwestel’s response to question 3 of the RFI, SSi noted that:

• Northwestel had redacted several paragraphs with no indication given as to what material had been redacted, nor of its relationship to the question that was posed by the Commission; and
• Without any indication of what information had been withheld, it was impossible for an interested party to address the question of whether the information withheld is so relevant to the proceeding that the public interest in disclosure outweighs any specific direct harm to Northwestel.

The letter, therefore, requested that the Commission:

• Either disclose the information that had been redacted; or
• Direct Northwestel to provide a new abridged version of their response that clearly indicates the subject of the redacted material and how its disclosure will cause specific direct harm to Northwestel that outweighs the public interest in its disclosure.On 14 February 2022, Northwestel responded to SSi’s letter with additional details regarding the information designated as confidential.

Regulatory context

Sections 30 to 34 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the “Rules”) and sections 38 and 39 of the Telecommunications Act (the “Act”) set out a process by which parties to Commission proceedings governed by the Act may file information on the record of a public proceeding in confidence.

To clarify this process, the Commission has issued an information bulletin: 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 (“Bulletin 2010-961”).

Bulletin 2010-961 describes the obligations of a party that files information with the Commission and designates it as confidential at paragraphs 4-10. Commission staff notes the following obligations as relevant to the issue raised by SSi:

• At the time that the party files the information it designates as confidential, it must provide an abridged version of the document along with an explanation of how the information falls into a category of information listed in section 31. ^Footnote1 The party must provide a detailed rationale to explain why the disclosure of the information is not in the public interest.
• In articulating these reasons, parties must address the test for disclosure. ^Footnote2 Generic statements such as “the release of this information to competitors would result in specific, direct harm to the company” are not sufficient.
• Parties must provide sufficient reasons to allow meaningful analysis by the Commission or another party who may wish to request disclosure of the information. Parties will generally not be permitted to provide additional reasons in their reply to such a request.
• However, to make the process for designating information more efficient, the Commission will generally accept as reasons a statement that the information is of a type listed in the appendix to this information bulletin. Parties doing so must keep in mind that this list is only a guideline. If the Commission or another party requests disclosure of the information, the party must be prepared to explain in its reply why the disclosure of the information is not in the public interest in the context of the particular proceeding.

Description and explanation of information Northwestel claimed as confidential

Commission staff notes that Northwestel’s original RFI response to question 3 received by the Commission on 21 January 2022, includes the following description and explanation relating to the information designated as confidential (at the top of page 1):

We are submitting certain information contained in this response in confidence. In particular, the information which we have provided in confidence represents strategic internal business planning and competitive response information and is of a type which the Commission has indicated should be treated as confidential. We consistently treat such information as proprietary and confidential. Release of this information on the public record would provide existing or potential competitors with invaluable competitively-sensitive information that would not otherwise be available to them, and which would enable them to develop more effective business strategies. Release of such information could prejudice our competitive position resulting in material financial loss and cause specific direct harm. The abridged version of this response is provided for the public record.

In Northwestel’s response to SSi’s disclosure request, it provided the following updated description of the information claimed as confidential:

The information that was filed in confidence provides an example of various competitive strategies that illustrate the need for flexibility in addressing the competitive threat of Starlink in the North, as discussed in the remainder of our response. As the strategies set out could form part of our potential competitive response to Starlink and includes confidential detailed cost information, the information is of a type that the Commission has specifically identified as properly filed in confidence with the Commission pursuant to TIB 2010-961.

Until such initiatives launch publicly in-market, we consistently treat such information as competitively sensitive and proprietary. The release of specific competitive business strategies that we may be contemplating in-market would provide current and future competitors with invaluable competitively-sensitive information that would not otherwise be available to them, and which would enable them to develop more effective business strategies. Release of such information could prejudice our competitive position, reduce or eliminate the effectiveness of such strategies, and result in material financial loss and cause specific direct harm.

Commission staff’s analysis

Commission staff notes that, while Northwestel did not explicitly reference which category or categories under section 39(1) of the Act the redacted information may fall under, its original response provided sufficient description and explanation to indicate that the redacted information could fall under sections 39(1)(b) and/or 39(1)(c) of the Act. Northwestel also provided arguments as to how the release of the information claimed as confidential could cause it specific direct harm. With respect to that specific direct harm, Commission staff further notes that Northwestel indicated that release of the information would: provide existing and potential competitors with invaluable, competitively-sensitive information that would not otherwise be available to them; would enable them to develop more effective business strategies; and could, therefore, prejudice Northwestel’s competitive position, resulting in material financial loss.

In light of the above, Commission staff considers that: 1) Parties had sufficient information upon which to make meaningful submissions with regard to disclosure on the basis of Northwestel’s original response to the RFI and the abridged version that was provided, and none did so within the timeline established by Commission staff; and 2) The information claimed as confidential by Northwestel is commercially-sensitive in nature, disclosure of which would result in specific direct harm to Northwestel. Commission staff considers that this harm outweighs the public interest in disclosure, as no arguments were made as to why disclosure of the information would be in the public interest in this case.

Accordingly, Commission staff considers that no further action is required on the part of Northwestel in relation to SSi’s request.

A copy of this letter will be placed on the public record of this proceeding.

Yours sincerely,

Original signed by

Lisanne Legros
Director, Telecommunications Networks Policy
Telecommunications Sector

cc:       Nicolas Gatto, CRTC, 873-353-9280, nicolas.gatto@crtc.gc.ca
Simon Wozny, CRTC, 873-455-4630, simon.wozny@crtc.gc.ca
Salahuddin Rafiquddin, CRTC, 873-353-4706, salahuddin.rafiquddin@crtc.gc.ca
Northwestel Inc., regulatoryaffairs@nwtel.ca           

Date modified:

2022-02-28