Public Mobile 1920 Yonge Street, Suite 400 Toronto, M4S 3E2

13 June 2012

Senior Director Spectrum Management Operations Spectrum Management Operations Branch Industry Canada 300 Slater Street Ottawa, Ontario K1A 0C8

[email protected]

Sent Via Email

Re: Canada Gazette, Part I, 14 March 2012, Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower and Site Sharing, DGSO-001-12

Dear Sirs / Mesdames:

1. Please accept this letter with the attached schedules as Public Mobile’s reply to the comments submitted by various interested parties related to the Department’s proposed revisions to the Conditions of Licence (COLs) respecting mandated roaming and tower and site sharing.

2. Public Mobile read with great interest the submissions of the interested parties in this roaming and tower sharing consultation process. However, in Public Mobile’s respectful submission, no party submitted any comments that detract from, or that are persuasively contrary to, the initial submissions made by Public Mobile in this consultation. Unlike the Incumbents, we have no intention of re-arguing issues that have been repeatedly discussed (and resolved) through past consultations. Our comments in this consultation attempt to build on the Department’s proposals so that the roaming, antenna tower and site sharing and arbitration processes become more efficient and transparent, as well as advance the

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Department’s policy goal of encouraging sustainable competition in the Canadian wireless industry.

3. We believe our proposals will lead to more efficient and transparent COLs for both roaming and tower sharing. Most importantly, our proposals create COLs that would be more effective in supporting the Government’s policy of sustainable wireless competition for the benefit of all Canadians. In this regard, Public Mobile would like to reiterate the ten key positions that we took in our initial comments and that we continue to advocate in the strongest possible terms.

i. Public Mobile supports the Department’s proposal to revise the COLs to mandate that Licensees provide roaming services on commercially reasonable terms indefinitely and eliminate the distinction between in-territory and out-of-territory roaming.

ii. Public Mobile submits that roaming agreements entered into under the current COLs (subsequent to the 2008 AWS auction) may be renegotiated (or arbitrated, if necessary) if requested by one of the contracting parties.

iii. Public Mobile submits that the Department should specify in detail the objectives of the revised roaming policy. Those objectives should include the economic benefits of reasonable and affordable roaming rates to consumers; extending the benefits of multi-carrier mobile voice and data competition in Canada’s more rural areas; and ensuring that Canada is competitive with other OECD jurisdictions (including the United States, the European Union and certain Asian economies) for roaming services and rates.

iv. Public Mobile believes that it must be the Government’s foremost priority to create revised roaming COLs that specify the inputs to be considered in roaming negotiations (and arbitrations, if necessary); particularly with respect to what is to be considered when reaching a decision on what is “commercially reasonable.” What is to be considered commercially reasonable should form the backbone of the revised COLs.

v. If the Department is not prepared to mandate a specific schedule or envelope of rates for domestic roaming services, the revised policy should provide clarity and guidance respecting the framework to be followed in negotiation (and arbitration, if necessary) processes, and what should be considered in such processes.

vi. Public Mobile supports the Department’s proposal that all tower information be made public. Public Mobile submits that mandated information requirements should include rates and other commercial terms and conditions of tower colocation agreements (including the requirement to file tower and site sharing agreements and documents which would be available via a transparent and accessible database repository).

vii. Public Mobile submits that Industry Canada is best suited to act as the neutral host and administrator of a tower information database. The Department already administers a database of sites; it could relatively easily expand on this functionality.

viii. Public Mobile supports the Department’s proposal that Offers to Share expire within 60 days if a Licensee has not received a response from a Requesting Operator. Public Mobile also submits if a Licensee has not responded to a Requesting Operator’s

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Proposal to Share within 60 days, the application should be deemed to be accepted and should automatically move on to the next step in the tower sharing process.

ix. Public Mobile submits that the revised COLs should require that “imminent future” tower installations be true to their name. Certain operators currently designate many antennas as “imminent futures” because they have 18 months to decide whether to use such installations. Public Mobile submits that if an antenna is actually intended for imminent use, it should be mounted on a tower within 6 months. If the antenna is not mounted within 6 months, that space on the tower should not be permitted to be used by the tower owner carrier for 6 months, and other carriers should be permitted to reserve and occupy that spot. This would create a disincentive for designating locations as “imminent futures” when they are simply being proffered as placeholders.

x. Public Mobile supports the Department’s attempt to streamline arbitration timelines; however, we feel that many of the deadlines proposed in the consultation document continue to be much longer than they need to be.

4. Aside from our comments on specific proposals, Public Mobile would like to respond to Bell’s complaint that Industry Canada is proposing changes at all to the current four year old conditions of licence. In the introduction to Bell’s submission, they state that:

Parties valued and bid upon the AWS licences based on COLs known by all bidders. To change them now would fundamentally change the value of moneys bid and paid after the fact. The AWS regulatory framework, including the roaming and tower sharing COLs, should be respected and left unchanged. Doing otherwise serves only to undermine certainty and confidence in future Industry Canada auctions.1 (emphasis added)

5. The current Conditions of Licence were settled in November 2008, four months after the completion of the AWS auction. Bell willingly spent $740 million in the auction knowing full well that the COLs were still under consideration and open to change.

6. If Bell truly believes that the proposed amendments to the existing regime for mandatory roaming and tower sharing would “fundamentally change” the value of their AWS spectrum, Public Mobile would be prepared to explore freeing them from this burden by acquiring the spectrum at the price Bell paid in 2008. However, we suspect these complaints, as with their other efforts to re-open the basic issue of whether or not a mandatory roaming and tower sharing regime is beneficial to Canadians, are little more than bluster.

7. In reality, the modest changes proposed by Industry Canada, particularly with the further amendments proposed by Public Mobile and other new entrant carriers, are designed to better realize the Government’s policy objectives. All carriers, including Bell, understood these objectives and it is a little late to complain that the Department is now taking steps to address various obstructionist and delay tactics of the Incumbents.

8. What is very clear is that the status quo is not working. The Department’s proposals are generally a step in the right direction. With some modifications and increased vigilance and enforcement, the revised mandatory roaming, and antenna tower and site sharing and arbitration rules will be much more effective and will ultimately encourage sustainable competition in the Canadian wireless sector.

1 Comments, Para 3.

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9. In the schedules to this letter, please find Public Mobile’s reply comments to certain parties’ submissions on roaming, mandatory tower and site sharing and arbitration rules. Public Mobile’s failure to respond to a particular submission of any party that is or could be adverse to Public Mobile’s submissions viewed as a whole should not be taken by the Department as support of, or acquiescence to, such submissions.

Please contact the undersigned if you have any questions.

Regards, osb

Bob Boron Senior Vice President, Chief Legal & Regulatory Officer

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Schedule 1

Mandatory Roaming

Public Mobile submits that it is clear based on the submissions in this consultation, and based on countless other examples related to the COLs and spectrum, that Industry Canada can no longer trust the Incumbents to act in “good faith” and propose “commercially reasonable” terms when doing business with new entrant carriers.

TELUS argues that rollout obligations should somehow be connected to mandatory roaming.2 Public Mobile submits that this is not appropriate and this position is not supported by any supporting arguments by . It is instructive to note that TELUS itself complained to the Department in 20103 about MTS’s roaming negotiation practices. In that context, TELUS certainly did not suggest connecting roaming availability to their rollout milestones. TELUS should be willing to confer on new entrants the same benefits it argued to be conferred on it in Manitoba.

Public Mobile can confirm that negotiated roaming rates with our Canadian roaming partner carriers are substantially higher than the rates we have secured from US carriers. Our experience in this regard is very similar to Wind Mobile. Wind Mobile notes in its submission that “The best rate available to a Canadian carrier from a major US carrier should be used to establish this rate cap. Today WIND pays rates to major US carriers which are substantially lower than the rate provided for in its roaming agreement with Rogers.”4

There is no credible or commercially justifiable reason that Canadian domestic roaming rates should be higher than those offered by US carriers.

2 TELUS Communications Company Comments, Para 8. 3 http://www.winnipegfreepress.com/business/telus-seeks-level-playing-field-99923129.html 4 Wireless Management Corp. (WIND Mobile), Para 46.

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Schedule 2

Antenna Tower and Site Sharing

Incumbent carriers have adopted inherently inconsistent and patently self-serving arguments respecting Industry Canada’s tower information database proposal. On the one hand, they have argued that responding to large amounts of Preliminary Information Packages (PIP) and Proposals to Share (PTS) requests and cancellations are an onerous burden5 that exhausts both resources and personnel. On the other hand, they argue that a tower information database that could alleviate these issues is a “security concern”6 and “impractical and costly.”7

Public Mobile submits that the Incumbent’s cannot have it both ways. If new entrants are truly overburdening them with PIP and PTS requests, a tower information database will provide a real and effective solution. Clearly, the Incumbents are making arguments most convenient to them without regard for the fact that they are contradicting themselves in their own submitted comments.

Public Mobile supports processes that would have the effect of increasing the efficiency, transparency and effectiveness of the antenna tower and site sharing process. The Incumbents have and will continue to present “red herrings” regarding security or complexity concerns in an attempt to frustrate the Department’s goals to make tower sharing a worthwhile and feasible exercise. Security concerns can be overcome through confidentiality agreements, and most information related to antenna deployment is already public on the Industry Canada website.

Clearly, information will be much easier to access through a database which includes relevant tower information such as deployment plans and rates charged to other carriers. A tower sharing database with rates for shared facilities included will be a disincentive to the continued false loading of towers, and stricter rules regarding futures with real “teeth” like the potential to lose a reserved height if antennas are not mounted within a timeframe, will ensure that those rules are taken seriously and adhered to.

Public Mobile supports TELUS’s emphasis on “prioritizing sites”8. This is something that carriers should already be doing to facilitate sharing. However, with the creation of a database, the significance of proposals such as these will be minimal as all information will be available to interested parties without the need for time-consuming PIP requests.

Rogers proposes to charge an upfront fee of $500 for all PIP requests, a $2500 fee for all PTS requests and $500 for any revisions to a request.9 Public Mobile would like to remind the Department that this is not the first time Rogers has attempted to impose unjustifiable fees on new entrants through the antenna tower and site sharing process. In November of 2009, Rogers attempted to charge Public Mobile (and others) a “One-Time Documentation Preparation charges” for various steps in the antenna tower and site sharing process. These charges were reported to the Department, and the Department ruled that these charges violated the COLs. Rogers’ continued attempts to charge carriers these fees is another example of the bad faith that Incumbents approach the antenna tower and site sharing process with. Public Mobile

5 Bell Mobility Comments, Para 38-40. 6 Bell Mobility Comments, Para 33. 7 Partnership Comments, Para 2. 8 TELUS Communications Company Comments, Para 48. 9 Rogers Communications Partnership Comments, Para 80-3.

6 further submits that if a database is implemented, there would be no need to charge these arbitrary and unsupportable fees. Such information would be posted and accessible without the necessity of resources from each carrier to respond to requests.

Public Mobile supports ’s submission that rates for tower sharing must be tied to the offered antenna height. Public Mobile agrees with and supports Mobilicity’s statement that “For example the height on the tower may determine a premium or discount based on the coverage permitted by the height. One would presume a lower height with lesser wireless coverage permitted should result in a lower rate.”10

We further agree with the amendment Mobilicity proposes to s.8(a) of the COLs as outlined in the Mobilicity submission.11

10 Data & Audio-Visual Enterprises Wireless Inc., dba Mobilicity, Comments Para 84. 11 Data & Audio-Visual Enterprises Wireless Inc., dba Mobilicity, Comments Para 86.

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Schedule 3

Arbitration

Public Mobile disagrees with Bell’s assertion that there is no need to change the current arbitration rules as there is no evidence that they are not working.12 The reason there have been very few arbitration proceedings is entirely because the current process is unnecessarily lengthy, and it is extremely burdensome to a company that is resource constrained and which is focused on tight timelines for market delivery. In this environment, to a new entrant, delay is tantamount to denial.

Public Mobile submits that the significant disagreement between parties on key issues in this consultation (with Incumbents on one side of the arguments and new entrants on the other side) is very clear evidence that all is not well with roaming and tower and site sharing arbitration rules. This is not a case of “if it ain’t broke, don’t fix it.”

Public Mobile, with other parties, has identified very specific and acute issues and examples related to the frustration of the mandatory roaming and tower and site sharing negotiation processes. Public Mobile feels it is disingenuous to claim “...stakeholders have no evidentiary basis for changing rules when there is no evidence the current rules are broken.”13 If Public Mobile had unlimited resources to conduct arbitrations on all of the roaming and tower and site sharing issues that we have encountered over the last two years, there would be plenty of evidence. However, we would not have been able to build a wireless network and launch wireless service in a timely fashion; as our resources would have been diverted to arbitration and not focused on the development of our wireless network. As we have said many times, for new entrants focused on building a network, delay is tantamount to denial, and delay works only to the benefit of Incumbents who do not wish to see competition brought to the markets they dominate.

Public Mobile agrees with TELUS’ submission that “It is efficient for parties to use key arbitration decisions to guide their future commercial dealings. A rule that so clearly negates these possibilities should be refined.” Arbitration decisions should be available to interested parties to guide future commercial agreements, without being binding on such future agreements. Individual negotiations, and the disputes that arise in such negotiations, will be distinguishable from others. However, it is Public Mobile’s submission that a revised arbitration process will produce commercially reasonable decisions that can in turn be used to help shape future commercial dealings to the benefit of the Government’s policy objective to encourage sustainable competition.

12 Bell Mobility Comments, Para 41. 13 Bell Mobility Comments, Para 41.

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