Telecom - Staff Letter addressed to Crawford G. Smith (Lax O’Sullivan Lisus Gottlieb LLP)
Ottawa, 29 May 2023
Reference(s): 8622-V3-202302040
BY E-MAIL
Crawford G. Smith
Lax O'Sullivan Lisus Gottlieb LLP
Suite 2750, 145 King St W
Toronto ON M5H 1J8 Canada
T 416 598 1744 F 416 598 3730
www.lolg.ca
csmith@lolg.ca
Subject: Request by Lax O'Sullivan Lisus Gottlieb LLP’s - Rogers - Vidéotron MVNO Rate - Final offer Arbitration - on behalf of Rogers for Commission orders
Dear Crawford G. Smith,
On 25 May 2023 the Commission received a letter, filed in confidence, from Lax O'Sullivan Lisus Gottlieb LLP (external counsel), on behalf of Rogers Communications Inc. (Rogers), in the context of final offer arbitration regarding mobile virtual network operator (MVNO) access rates (the FOA). In this letter, Rogers asks that the Commission issue orders for Vidéotron to produce #
#.
In support of the request, Rogers stated that it believes these orders are necessary to ensure the procedural and substantive fairness of the proceeding by ensuring that the Commission has a full and fair factual record in making its decision, and that the orders are necessary to ensure that Rogers knows the case against it and has an opportunity to respond to Vidéotron’s case.
Rogers also added that these orders and the resulting analysis and submissions would not cause delays in the FOA process. It was submitted that the type of disclosure requested was consistent with that which took place during the aforementioned proceeding before the Competition Tribunal.
Further, staff notes that as it was finalizing this letter, Québecor and Rogers submitted an answer and a reply respectively on 26 May 2023.
As a preliminary matter, Commission staff notes that any #
# is not on the record of this FOA proceeding. As such, we consider that this part of external counsel’s request is not one for disclosure of confidential information, per se, but rather a request for discovery. The Commission’s practice does not generally provide parties with a procedural right to seek discovery of information. While some exceptions have been made, these are generally restricted to broad proceedings initiated by the Commission. No arguments have been raised or, at least, substantiated, as to why the established procedures, which do not contemplate a discovery phase, are inadequate. In this regard, staff notes that one of the underlying objectives of FOA proceedings is to deal more expeditiously with certain matters. While Rogers alleges that approval of its requests would not delay the conduct of this proceeding, staff considers this to be unrealistic.
With regard to the request for disclosure of information that is on the record of this proceeding, staff considers that Rogers’ allegations of procedural fairness have not been sufficiently justified and that its assertions regarding its inability to know the case it has to meet or to meaningfully respond to are unsubstantiated.
Furthermore, staff notes that the letter from external counsel does not, in relation to its disclosure request, engage with the confidentiality/disclosure regime set out in the Telecommunications Act nor with the related Information Bulletin.
In light of the foregoing, Commission staff is of the view that the case for the requested orders has not been made out and that a decision to issue such orders would cause delays to the conduct of the proceeding - and thus the implementation of MVNO service between the parties to this proceeding - and is therefore not in the public interest.
Finally, staff notes that parties did not provide an abridged version of their letters for the public record and therefore asks that abridged versions of the documents submitted on 25 and 26 May 2023 be provided within 5 days of receiving this Letter.
Yours sincerely,
Original signed by
Michel Murray
Director, Dispute Resolution and Regulatory Implementation
Telecommunications Sector
c.c. Philippe Nadeau, CRTC, Philippe.nadeau@crtc.gc.ca
Leila Wright, CRTC, leila.wright@crtc.gc.ca
Peggy Tabet, Vidéotron, tabet.peggy@quebecor.com
Howard Slawner, Rogers, Howard.Slawner@rci.rogers.com
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