Wants independent experts to examine Competition Bureau’s confidential information
By Denis Carmel
GATINEAU – Telus has asked the CRTC to again delay the public hearing portion of its wireless policy review hearing because it says the Competition Bureau’s handling of confidential information filed with to the Commission in November is unfair to other participants.
In its November 22nd submission to the CRTC’s wireless policy review proceeding, the Competition Bureau, “makes a number of findings that directly contradict Telus’s own submissions,” reads a document sent to the CRTC on December 23. “These findings are based on data that certain providers were directed by CRTC staff to produce further to requests for information (‘RFI’). The Responding Providers produced this information in confidence,” explains the Telus submission.
“The public version of the Commissioner’s Report is significantly abridged, with all key data redacted. Without access to the unabridged Commissioner’s Report and the responses to RFIs that provide the data for it, Telus has no mechanism to test the conclusions in the report. The result is a serious and highly prejudicial denial of Telus’ right to procedural fairness.”
(Ed note: We tried our best to make sense of it here.)
So, to rectify this, Telus is proposing to give outside counsel and select independent experts retained by interested parties access to not only to the confidential information but to databases, computer code, regression logs, spreadsheets, Excel workbooks, and any other analyses and supporting materials in its native formats (e.g. Microsoft Word, Microsoft Excel, STATA, SAS, etc.) used by the consultant retained by the Bureau (Dr. Tasneem Chipty, from Matrix Economics).
They in turn would provide their own conclusions within 90 days of the disclosure of those materials.
This procedure, although never used by the CRTC, has been employed by the Competition Bureau, the FCC and other regulatory bodies across the world.
“Otherwise, the CRTC breached its duty of fairness and any decision based on the Commissioner’s Report will be invalid.” – Telus
“Should the CRTC fail to disclose the Protected Records and Supporting Materials, either through Telus’ proposed OCEEO (outside counsel and expert eyes only) order or otherwise, the CRTC must accord the Commissioner’s Report no weight. Otherwise, the CRTC breached its duty of fairness and any decision based on the Commissioner’s Report will be invalid,” Telus warns in its December 23, 2019, letter to the CRTC.
The request from Telus is not the only one the Commission must deal with. Both Bell and Rogers, for example, have requested that some information in the Bureau report should be made public. “Rogers is seeking public disclosure of the standard statistical diagnostics of individual regression results contained in the Matrix Study. These include measures of the goodness of fit (R-squared) and statistical significance of the estimates of individual coefficients of the variables in the regression results,” reads the most recent Rogers submission.
Bell is requesting “all estimated regression coefficients and all calculated marginal effects reported in Exhibits 8, 9, and 10 and all estimated percentage changes reported in Exhibits 11 and 12. (of the Matrix Report). And disclose all summary statistics that are related to Bell-specific data to Bell only in Dr. Chipty’s report.”
Of course, the Bureau has responded warning the CRTC that since it is the first time the Commission would use the disclosure procedure should consider guidance from the OECD relating such disclosure. It does agree that some disclosure of redacted information: “The regression results (e.g. coefficients) requested by Rogers, CNOC and Bell could be disclosed with low risk of revealing information that have designated as confidential.”
The Bureau concludes by indirectly alleging Telus is acting in bad faith: “The Commissioner notes that Telus is in a different position from other parties because its confidential information is incorporated to a lesser extent than other parties as a result of the shortcomings of Telus RFI’s responses,” said the Bureau.
The CRTC has added a reply phase so that parties may respond to the Commissioner’s studies before January 13, 2020. Comments are to be restricted to the contents of the Commissioner’s economic studies, including any appendices and supporting documents. Parties may comment on the methodologies employed or the appropriateness of the policy recommendations proposed by the Competition Bureau.
When the Competition Bureau began asking the CRTC to require more confidential information from wireless providers, so it could provide it own analysis, we should have known that, whatever the results would, someone would challenge its results – and because their conclusions and recommendations would be based on confidential information, their intervention would come under a cloud.
This parallel process may evolve into something more meaningful but from our perspective it still needs a little a little work… There may well be too many cooks!
