GATINEAU – A Competition Bureau request for the CRTC to facilitate a big data dump from Canadian wireless service providers has flummoxed the Commission and caused at least one carrier to accuse the Bureau of attempting to “hijack” the CRTC’s recently announced review of Canada’s mobile wireless services market.
On March 8, the Competition Bureau filed a procedural request with the CRTC under the proceeding, saying it planned to conduct three of its own analyses of the Canadian wireless market, but in order to do so, it needs the CRTC to demand Canadian wireless service providers file detailed data, some dating back to 2008.
“To assist the CRTC in making a determination on key issues related to competition the Commissioner would like to provide the CRTC with objective economic evidence,” reads the Bureau’s request.
For example, the Competition Bureau has asked (among many other things) the CRTC to force wireless carriers to file: “For the period 2008 to 2015 for all of Canada, for the Company’s residential wireless services, provide monthly data on: revenues; ARPU; new subscriber incentives and customer acquisition costs; average usage of data, minutes, and text; number of subscribers; gross subscriber additions; and net subscriber additions, broken down as follows:
a) By Company brand, including all brands separately;
b) By pre-paid vs. post-paid;
c) By plan;
d) By province/territory; and
e) If maintained, based on when and how customers were acquired (e.g., all customers in the time period, for only gross additions in the time period, for switching customers in the time period).”
In a March 25th reply letter to Matthew Boswell, the Commissioner of Competition, the CRTC seemed perplexed by the Bureau’s detailed request, noting that there is already much data on the public record and that if it were to grant such a request from the Bureau, the entire review would likely be significantly delayed.
“Commission staff notes that the Commission’s last in-depth review of mobile wireless services took place in 2015. A principal purpose of the current proceeding is to review changes to the state of mobile wireless services since that time. Accordingly, it may be appropriate that the Commissioner explore ways to further tailor the information sought; for example, by focusing on information that is more recent,” reads the letter to Boswell from Philippe Kent, the CRTC’s director, competition and emergency services policy.
“Commission staff therefore respectfully requests that the Commissioner review the procedural request with a view to refining the information sought in order to ensure that the information is unconditionally necessary for the Commissioner to effectively address the competition issues relevant to this proceeding.” – Philippe Kent, CRTC
“Commission staff therefore respectfully requests that the Commissioner review the procedural request with a view to refining the information sought in order to ensure that the information is unconditionally necessary for the Commissioner to effectively address the competition issues relevant to this proceeding.
“In the alternative, Commission staff respectfully requests that the Commissioner elaborate on how the information being sought, as currently framed, is reasonably necessary to allow the Commissioner to ‘provide the CRTC with important economic evidence to assist it in assessing the state of competition across various Canadian wireless markets and how certain policy changes would likely affect outcomes in those markets’,” it added, quoting the Bureau’s March 8 request.
The CRTC has asked for a response from the Bureau by Friday, April 5.
In the meantime, both Bell Canada and Rogers Communications last week sent their own letters to the CRTC strenuously objecting to the Competition Bureau’s request for data, saying 10-year-old data is meaningless, given how consumers use devices now as compared to 2008, that the companies just don’t have some of the data requested, that each company’s internal datasets may count things differently than the others, that the Bureau’s request oversteps legal boundaries and if the CRTC does grant the Bureau’s demand, will delay this review by up to a year.
“Rogers submits that the Bureau should not be permitted to hijack this process by establishing its own timeline and the right to seek information from WSPs and the ability to file detailed new economic evidence at the same time as other interested parties submit further comments in response to intervener evidence,” reads the letter from RCI’s SVP Regulatory, David Watt.
“The Bureau RFI is unnecessarily broad and akin on its face to a fishing expedition.” – David Watt, Rogers Communications
“The Bureau RFI is unnecessarily broad and akin on its face to a fishing expedition.”
According to Bell, what the Competition Bureau is asking “would transform what is supposed to be a telecommunications policy proceeding into the type of inquiry tailored to the review of a specific merger,” and furthermore, “granting the Bureau's request would be inappropriate for jurisdictional and confidentiality reasons,” continues the Bell response.
“Under section 11 of the Competition Act, the Bureau can compel the production of data and documents when, among other things, it is undertaking an inquiry under section 10. Such inquiries can be conducted in respect of a merger or of conduct that is subject to civil or criminal review under the Competition Act. However, the power to compel production specifically does not extend to the Bureau's mandate under section 125, which permits the Bureau to make representations to boards and tribunals and is the basis for its participation in this proceeding.
“By asking the Commission to issue on its behalf RFIs equivalent to a section 11 request (which the Bureau's own request confirms is what is being done ), the Bureau is effectively circumventing statutory limitations on its powers to compel the production of information,” says the Bell letter from SVP regulatory and government relations, Rob Malcolmson.
Bell also noted that one of the experts which the Bureau proposes to use to analyze the data, The Brattle Group, can’t be used because it was retained by Bell to help it purchase MTS in 2016 and there remains “a contractual obligation that prevents the Brattle Group from acting potentially adversely to Bell in relation to that work.”
We’ll file more on this if the Competition Bureau responds to the CRTC on Friday.
