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Telecom - Staff Letter addressed to Distribution List

Ottawa, 1 December 2023

Our reference: 1011-NOC2023-0056

By EMAIL

Distribution List

Subject: Telecom Notice of Consultation CRTC 2023-56-2, Review of the wholesale high-speed access service framework – New intervention phase - Request for public disclosure of information designated as confidential by the Commissioner of Competition

Pursuant to the procedure set out in Telecom Notice of Consultation 2023-56-2, Review of the wholesale high-speed access service framework – New intervention phase,parties were able to file additional interventions by 16 October 2023.

The Commissioner of Competition (the Commissioner) filed an additional intervention that included data on the state of competition in the Canadian fixed wireline Internet service market. The Commissioner filed two versions of its additional intervention – an abridged version that is on the public record, and a confidential version. The confidential version contains data and information on the wireline market using data that was disclosed to the Commissioner in confidence by telecommunications service providers (TSPs) pursuant to a Commission staff letter issued on 2 June 2023.Footnote1

In a letter dated 20 October 2023, the Canadian Network Operators of Canada (CNOC) submitted requests for the public disclosure of information filed in confidenceFootnote2 by the Commissioner in its additional intervention.

This letter sets out Commission staff’s findings on the requests for public disclosure submitted by CNOC.

CNOC disclosure requests

CNOC expressed concern with the amount of information that was filed in confidence by the Commissioner. CNOC argued that, as a result, parties will be seriously interfered with in their ability to make informed submissions in this proceeding and to contribute to the development of a complete record on which the Commission may base its decisions. CNOC made numerous specific disclosure requests for information from virtually all the figures included in the Commissioner’s additional intervention. Furthermore, CNOC made several additional disclosure requests relating to information filed in confidence where it was unclear in CNOC’s view whether it identified specific TSPs.Footnote3

Comments from parties

In a Commission staff letter dated 3 November 2023, the Commission recognized that much of the information underlying the Commissioner’s confidential filings originates from information that was designated as confidential by other parties and filed with the Commissioner pursuant to paragraph 39(4)(b) of the Telecommunications Act.

On this basis, Commission staff invited the parties that disclosed information designated as confidential to the Commissioner,Footnote4 as well as the Commissioner himself, as the appropriate respondents to CNOC’s disclosure requests. CNOC was invited to file reply comments.

In its comment, the Commissioner asserted that figures 1 to 4 and 6 to 10 of its additional intervention are national figures reflecting information of multiple parties. The Commissioner noted that these figures, along with the redacting information in paragraph 18, could be publicly disclosed in this proceeding without harming competition or the competitive process.

Taking a similar position, Bell Canada did not object to disclosure of information aggregated at the national level but opposed the disclosure of regional and census metropolitan area (CMA) figures.

All parties that opposed CNOC’s requests were particularly concerned about the disclosure of information at the regional or CMA level, as information disclosed at these levels of aggregation could be deduced or reverse engineered, with higher precision than the national figures, to reveal competitively sensitive information about the underlying TSP.

Most parties that filed comments, including Cogeco, Eastlink, Quebecor, Rogers, and TELUS, opposed all CNOC’s requests. These parties argued that the information they filed in confidence is competitively sensitive and the disclosure of which, at any level of aggregation (i.e., national, regional, or CMA), could purportedly result in harm that outweighs public interest. Rogers further expressed concern that, without access to the figures in question, it is not possible to determine the ability of competitors to use the information to reverse engineer competitively sensitive data, including data aggregated at the national level.

TELUS argued that given the focus on fibre-to-the-premises (FTTP) in this proceeding, and the concentration of FTTP deployments in Canada having been undertaken by TELUS and Bell Canada, there is no feasible means of aggregating the data in a way that protects TELUS’ information.  

In light of the comments made on its initial request, CNOC submitted a reply in which it narrowed the scope of its initial request from disclosure of virtually all the figures to, at a minimum, disclosure of the figures that include information aggregated at the national level, and the associated information in paragraph 18. CNOC also requested in its reply that confidential information aggregated at the regional and CMA level should only be permitted to remain filed in confidence if its disclosure would allow parties to reverse engineer the source of the data and if the information is not already available from other public sources.

Commission staff’s assessment

Commission staff considers that while figures from the Commissioner’s additional intervention were not publicly available for respondents to assess in their comments, descriptive titles for each of the figures were publicly disclosed. In the view of Commission staff, access to the figure titles provides insight on the nature of the associated data and allowed respondents to meaningfully comment on any potential competitive harm.

As a general rule, Commission staff considers that public disclosure of information from the Commissioner’s additional intervention originating from three or more TSPs would not allow one to reverse engineer competitively sensitive data of a given party and would weigh in favour of public disclosure.

National level data

Section 3a of the Commissioner’s additional intervention includes Canada-wide competitive indicators.

With respect to figures 1, 2, 4, 6A, 6B, 8, 9 and 10: the information presented in these figures is based on the aggregation of data from at least three TSPs. Public disclosure of these figures would pose minimal risk of specific or direct harm to parties that disclosed their confidential information to the Commissioner. At the same time, access to this information would allow parties to be better positioned to evaluate the Commissioner’s analysis and to contribute to a full and complete record of this proceeding.

CNOC requested public disclosure of information filed in confidence in paragraph 18 of the Commissioner’s additional intervention. Staff notes that the numbers filed in confidence in that paragraph are a description of the data contained in figure 1. For the same reasons as those discussed above, public disclosure of that information would pose minimal risk of direct harm to parties and would contribute to the development of a complete record of this proceeding.

In regard to the information in figures 3, 5, and 7: staff notes that the aggregated data originated from fewer than three TSPs. In these instances, public disclosure of this information would pose a higher risk of specific or direct harm to parties that disclosed their information in confidence with the Commissioner. Aggregated information from these national-level figures is organized in such a way that parties would likely be able to obtain insight into competitively sensitive information relating to a competitor. As a result, disclosure of this competitively sensitive information would not weigh in favour of the public interest.

Regional and CMA level data

Section 3b of the Commissioner’s additional intervention includes regional and CMA level competitive indicators.

Commission staff is of the view that disclosure of information aggregated at the regional and CMA level would pose a risk of harm to parties. Information at this lower level of aggregation originated from data from fewer than three TSPs. In these instances, parties would be able to obtain insight into competitively sensitive information relating to a specific and identifiable competitor. The resulting harm would outweigh any improvements in parties’ ability to assess or respond to the Commissioner’s submissions and meaningfully contribute to the record.

Conclusion

As a result, Commission staff:

Yours sincerely,

Original signed by

Philippe Kent
Director, Telecommunications Services Policy
Telecommunications Sector

c. c. Marianne Blais, CRTC,  marianne.blais@crtc.gc.ca
Peter Keriakos, CRTC, peter.keriakos@crtc.gc.ca
Greg Lang, CRTC, greg.lang@crtc.gc.ca
Adam Mills, CRTC, adam.mills@crtc.gc.ca
Chris Roy, CRTC, christopher.roy@crtc.gc.ca

Distribution List

Bell Canada, bell.regulatory@bell.ca;
Cogeco, telecom.regulatory@cogeco.com;
Eastlink, regulatory.matters@corp.eastlink.ca;
RCCI, regulatory@rci.rogers.com;
SaskTel, document.control@sasktel.com;
Shaw, Regulatory@sjrb.ca;
TCI (TELUS), regulatory.affairs@telus.com;
Videotron, regaffairs@quebecor.com;
CNOC, regulatory@cnoc.ca;
British Columbia Broadband Association (BCBA), regulatory@bcba.ca;
CIK Telecom Inc, jordan.d@ciktel.com;
City Wide, david@yourcitywide.com;
Community Fibre, ben@communityfibre.ca;
Comwave, legal@comwave.net;
Public Interest Advocacy Centre, jlawford@piac.ca;
TekSavvy, regulatory@teksavvy.ca;
Vaxination Informatique, jfmezei@vaxination.ca;
John Roman, johnphiliproman@gmail.com;
WaveDirect Telecommunications Limited, joanne@wavedirect.org;
Vaxxine Computer Systems Inc., president@vaxxine.com;
Truespeed Internet Services Inc., adam@truespeed.ca;
SkyChoice Communications, serge@skychoice.ca;
Securenet , info@securenet.net;
Secure by Design, kirk@secure-by-design.com;
OpenMedia, contact@openmedia.org;
Netrevolution inc., drouleau@gtvr.com;
National Capital FreeNet, execdir@ncf.ca;
IGS Hawkesbury Inc., jbogue@hawkmail.ca;
First Mile Connectivity Consortium, info@firstmile.ca;
Devtel Communications Inc., devin@devtelcommunications.ca;
CPC, campbell@campbellpatterson.com;
Canadian Anti-Monopoly Project (CAMP), keldon@antimonopoly.ca;
Beanfield, todd@beanfield.com;
Marc Nanni, mn_crtc@proton.me;
Competition Bureau, conor.parson@cb-bc.gc.ca;
Competition Bureau, crtc2023-56@cb-bc.gc.ca;
Coextro, skhandor@coextro.com;
Carry Telecom, frankw@carrytel.ca;
Manitoba Coalition (Consumers' Association of Canada (Manitoba Branch), Aboriginal Council of Winnipeg, Harvest Manitoba), chkla@legalaid.mb.ca;
Manitoba Coalition (Consumers' Association of Canada (Manitoba Branch), Aboriginal Council of Winnipeg, Harvest Manitoba), kadil@legalaid.mb.ca;
Frontier Networks, cgooey@frontiernetworks.ca;
Execulink, yasmin.charania@execulinktelecom.ca;

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