Telecom - Commission Letter addressed to Bram Abramson (Principal, 32M) and (Lixo Investments Limited)
Ottawa, 20 January 2023
Reference(s): 1011-NOC2022-0268
BY EMAIL
Bram Abramson
Principal, 32M
Box 563, Station P
Toronto, Ontario, M5S 2T1
bram@32M.io
Lixo Investments Limited
Suite 33, 70 Yorkville Avenue
Toronto, Ontario, M5R 1B9
lixoproperties@gmail.com
Subject: Disclosure Request by Lixo concerning RCCI’s confidential response to CRTC Request for Information regarding intervention filed under NOC 2022-268 and Lixo’s October 17th proposal to Rogers for access to 70 Yorkville (“RFI”)
Dear recipients:
This letter addresses a request for disclosure of certain information designated as confidential by Rogers Communications Canada Inc. (RCCI) in its response to a Commission staff request for information (RFI) dated 25 November 2022 as part of the proceeding initiated by Telecom Notice of Consultation 2022-268 (NOC 2022-268).
On 6 December 2022, the Commission received a request from Lixo Investments Ltd. (Lixo) that sought “disclosure of six paragraphs of Response to CRTC(Rogers)25-11-22, excluding dollar-figure information, excluding identification of the technical problem, and excluding the description of the item on which Rogers says it has conceded’’. Lixo submitted that the content of the confidential paragraphs in RCCI’s response relate to issues of Multi Dwelling Unit (MDU) fees that could be charged to a telecommunications service provider (TSP), as per the MDU access framework outlined in Telecom Decision 2003-45, and are therefore directly relevant to the Commission’s regulatory responsibilities.
RCCI filed a reply to Lixo’s disclosure request on 7 December 2022, where it stated that the confidential information was shared directly with Lixo and further detailed their rationale for requesting confidentiality. Specifically, RCCI submitted that the information relates to ongoing commercial negotiations with Lixo and the proposed terms and conditions that are being discussed by the parties are financial, commercial and/or technical information that is confidential. Further, RCCI noted that disclosure of that information could reasonably be expected to affect the contractual or other negotiations of RCCI that will take place in the future, consistent with subparagraph 39(1)(c)(iii) of the Telecommunications Act (the Act).
General principles
Requests for disclosure of information designated as confidential are addressed in light of sections 38 and 39 of 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.
Analysis and Commission staff determinations
Commission staff notes that the information contained in the six paragraphs of RCCI’s RFI response that was designated as confidential relates to the ongoing commercial negotiations between RCCI and Lixo, which may be designated as confidential pursuant to paragraph 39(1)(b) of the Act. Consistent with subparagraph 39(1)(c)(iii) of the Act, Commission staff considers that the public disclosure of information relating to the details of a commercial bilateral negotiation could result in specific harm to RCCI, given the highly competitive nature of telecommunications service delivery in MDUs.
Specifically, the paragraphs designated as confidential by RCCI relate to the negotiation of terms and conditions in a commercial agreement, including fees. Commission staff believes that public disclosure of these ongoing commercial negotiations would likely affect RCCI’s future negotiations with other parties by divulging negotiation details, operational requirements or other traditionally confidential business information, thereby affecting RCCI’s ability to compete effectively in the delivery of telecommunications services.
In addition to the harm that the disclosure could have for RCCI, Commission staff also believes that it would have limited benefits to the public. As per requirements found in paragraph 175 of Telecom Decision 2003-45, TSPs have an obligation to make MDU access agreements publicly available, reducing the benefits of disclosing information regarding the terms being negotiated between RCCI and Lixo. The final access agreement that will result from the negotiations between RCCI and Lixo will be disclosed to the public on RCCI’s website, which, in Commissions staff’s view, will adequately inform the public.
In light of the above, Commission staff considers that the public interest in disclosure is outweighed by the likelihood of specific direct harm. No further disclosure of information is required.
Yours sincerely,
Original signed by
Michel Murray
Director, Dispute Resolution and Regulatory Implementation, Telecommunications Sector
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