Telecom - Staff Letter addressed to the Distribution list

Ottawa, 22 November 2024

Our reference: 8000-C12-202400282, 8663-T66-202402246

BY EMAIL

Distribution list

Subject: TELUS Communications Inc., Part 1 Application to propose long-term connectivity options in three regions in British Columbia – PIAC’s request for disclosure of information designated as confidential & TELUS’s requests related to the Commission’s procedural practices

Dear recipients:

This letter addresses a request for disclosure of certain information designated as confidential by TELUS Communications Inc. (TELUS) in its response to a request for information (RFI) issued by Commission staff as part of the proceeding initiated by TELUS Part 1 Application (8663-T66-202402246). It also addresses requests raised by TELUS’s regarding the Commission’s procedural practices.

The RFI subject to the request for disclosure was issued on 5 November 2024. TELUS responded to the RFI on 8 November 2024.

On 13 November 2024, the Commission received a request for disclosure from the Public Interest Advocacy Centre (PIAC).  

On 18 November 2024, TELUS filed a letter with the Commission responding to PIAC’s request for disclosure of information designated as confidential. In its letter, TELUS also raised concerns about two new interventions^Footnote1 placed on the record of the proceeding by Commission staff and requested additional documentation and examination of staff related to these interventions.

Request for disclosure of information designated as confidential

Background

In its response to an RFI issued by Commission staff on 16 October 2024, TELUS stated that it is in early discussions with satellite providers to explore potential wholesale arrangements that could reduce retail rates for satellite Internet services in the communities impacted by the turndown of the SR500 System.

On 5 November 2024, Commission staff issued a follow-up RFI to TELUS seeking further detail on the arrangement being explored, including with respect to types of retail services TELUS could offer, estimated timelines, and affordability of services.

On 8 November 2024, TELUS submitted a response to the RFIs, including an abridged version for publication, in which it designated certain information as confidential. TELUS indicated that public disclosure of this information would provide existing and potential competitors with sensitive commercial insights, including detailed information about existing wholesale agreements and the identities of companies with whom TELUS is discussing potential wholesale agreements. TELUS added that competitors would be able to use this sensitive information to inform their strategic plans and unfairly compete. In its 13 November 2024 comments, PIAC sought full disclosure of TELUS’s response, as discussed further below.

General principles

Requests for disclosure of information designated as confidential are addressed in light of sections 38 and 39 of the Telecommunications Act (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

PIAC sought public disclosure of TELUS’s response in its entirety with respect to its potential wholesale arrangements for satellite services. Commission staff considers this information to be eligible for confidentiality, as it falls within the categories under section 39(1) of the Act.

With respect to specific direct harm, TELUS submitted that the information in question comprises sensitive commercial and technical details that TELUS does not publicly disclose. TELUS added that disclosure of this information would enable competitors to unfairly compete, resulting in material financial loss to TELUS. Further, disclosure of this information would result in TELUS being in breach of non-disclosure agreements related to commercial negotiations.

With respect to public interest in disclosure, PIAC submitted that the issue raises significant public interest concerns that outweigh any commercial considerations and must be examined as such, in line with telecommunications policy objectives. PIAC added that the potential wholesale arrangement for satellite services could also reduce the retail rates, which is a critical concern for consumers. In response, TELUS submitted that PIAC does not require the disclosure of information in question to be able to submit comments to the Commission about retail rates that it might consider affordable, or its views on a potential subsidy. TELUS also highlighted that, if an arrangement was in place, it would have made this information known so that PIAC and interested parties could comment on its feasibility.

Commission staff is of the view that the disclosure of this information could result in the specific direct harm cited by TELUS, as it may result in financial loss to TELUS as well as compromise the outcomes of the potential arrangement. Commission staff also considers that it is not necessary to disclose this information in order for parties to provide meaningful comments in this proceeding. Further, the wholesale arrangements that TELUS referred to in its RFI responses are in the early stages of discussions and consideration of potential outcomes would therefore be speculative.

Therefore, Commission staff considers that the likelihood of specific direct harm in disclosure outweighs the public interest, and that no further disclosure of information is required at this time.

Requests related to the Commission’s procedural practices

Background

TELUS raised concerns with respect to the Commission staff letters of 29 October 2024 and 5 November 2024, which notified parties that two new interventions had been added to the record. The new interventions are summaries of Commission staff discussions with representatives of two regional districts^Footnote2 that are impacted by TELUS’s turndown of the SR500 System.

TELUS submitted that the summaries represent an “extremely unusual” development in the proceeding, which raises significant questions about the fairness of the process. TELUS states that viva voce evidence was given in an in camera session, without notice to the parties or a determination by the Commission as to the necessity for such a process, and that the Commission has effectively positioned itself as a witness in this matter. In TELUS’s view, the Commission’s actions suggest preferential treatment for certain viewpoints and raises a reasonable apprehension of bias.

TELUS requested: 1) that the Commission make available verbatim transcripts of the calls so that parties can adequately assess and respond to them, and 2) an opportunity to examine, under oath in an official examiner’s office, the CRTC staff member involved in the outreach in order to clarify details about the comments placed on the public record.

Analysis

Commission staff notes that the Commission has a public duty to ensure its proceedings are as accessible as possible. To this end, the Commission aims to explore ways to ensure that diverse voices are represented on the public record, and minimize the burden on interested parties to provide their views. Allowing parties to submit their views over the phone to staff, with a summary of their submission placed on the record, can achieve these goals. Commission staff notes that the summaries of discussions with representatives of the regional districts were shared with both of the intervenors, who provided confirmation of accuracy and approval for placing them on the public record.

Further, Commission staff notes that the following factors, in accordance with Supreme Court precedent on the scope of the duty of procedural fairness, all suggest a limited scope to the duty owed to TELUS in this context:

• The nature of the decision being made here and the process used to make it are both more administrative/consultative than judicial/adversarial;
• Both Commission and judicial remedies are available to TELUS under the Actshould it be unsatisfied with the final decision reached; and
• The Commission has broad authority and statutory flexibility with respect to its own proceedings.

Commission staff also notes that the discussions with representatives of the regional districts occurred at the staff level. As a result, and unlike the situations in the cases on bias cited by TELUS, the decision-makers in this proceeding (i.e. the Commissioners) will only have access to the summaries that were placed on the public record to make their decisions. In fulfilment of the duty of procedural fairness owed to them, TELUS has been provided, and taken advantage of, notice of these additions to the public record and an opportunity to comment on this information (or persuade the decision-makers that it is of limited value) that will be presented to the decision-makers in this proceeding.

Commission staff therefore considers that no further action is required with respect to the requests made by PIAC and TELUS. Commission staff re-affirms its commitment to ensuring public proceedings are managed in a manner that upholds the principles of transparency, accessibility, and efficiency, and to continuing to seek ways to foster participation of interested parties and a robust public record.

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

c.c.:     Simon Wozny, CRTC, (873) 455-4630, simon.wozny@crtc.gc.ca
Loïc Yves Abena Fouda, CRTC, loicyves.abenafouda@crtc.gc.ca
Rebecca Hume, CRTC, rebecca.hume@crtc.gc.ca
Iva Jurisic, CRTC, iva.jurisic@crtc.gc.ca
Jordan Wegner, CRTC, jordan.wegner@crtc.gc.ca

Attachment (1) distribution list

Distribution list:

TELUS: regulatory.affairs@telus.com; priya.bains@telus.com; molly.samuelson@telus.com
PIAC: gwhite@piac.ca; piac@piac.ca; jlawford@piac.ca

Date modified:

2024-11-22