Before the Canadian Radio-Television and Telecommunications Commission

BEFORE THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

IN THE MATTER OF AN APPLICATION BY THE PUBLIC INTEREST ADVOCACY CENTRE AND THE CONSUMERS ASSOCIATION OF CANADA

(APPLICANTS)

PURSUANT TO PART I OF THE CRTC RULES OF PRACTICE AND PROCEDURE AND SECTIONS 24, 25, 27, 29, 32, 33, 35, 40, 47, 55, 56 and 72 OF THE TELECOMMUNICATIONS ACT DIRECTED TO

ROGERS COMMUNICATIONS INC. AND CHATR WIRELESS INC. (RESPONDENTS)

AND TO

GLOBALIVE WIRELESS MANAGEMENT CORP., OPERATING AS WIND MOBILE

TO REVIEW AND VARY TELECOM DECISION CRTC 2011-360, GLOBALIVE WIRELESS MANAGEMENT CORP., OPERATING AS WIND MOBILE – PART VII APPLICATION REGARDING ROAMING ON ROGERS COMMUNICATIONS PARTNERSHIP’S WIRELESS NETWORK

30 AUGUST 2011

John Lawford Counsel Public Interest Advocacy Centre One Nicholas Street, Suite 1204 Ottawa, Ontario K1N 7B7

(613) 562-4002 x.25 [email protected] Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

Table of Contents

Nature of the Application ...... 2 Test for Review and Variance ...... 3 Errors in Law or in Fact ...... 4 Previous rulings on discrimination and preference ...... 10 Seamless Roaming ...... 12 Conclusions ...... 13 List of Parties Served...... 15 Notice ...... 16

1 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

Nature of the Application

1. The Public Interest Advocacy Centre (PIAC) and the Consumers' Association of Canada (CAC) by their counsel the Public Interest Advocacy Centre ("PIAC/CAC") file this Application pursuant to Section 62 of the Telecommunications Act, R.S.C. 1993, c.38 ("the Act") and under Part I of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR/2010-277) to review and vary Telecom Decision CRTC 2011-360, Globalive Wireless Management Corp., Operating As Wind Mobile – Part VII Application Regarding Roaming on Rogers Communications Partnership’s Wireless Network (3 June 2011) (the "Decision").

2. PIAC/CAC submit that the Commission erred in law and in fact in dismissing the original application in the Decision.

3. In particular, PIAC/CAC submit that the Commission applied the wrong legal test under s. 27(2) of the Telecommunications Act and ask the Decision be rescinded and re-heard on a proper legal basis.

4. PIAC/CAC therefore request that the Commission:

1. Rescind the Decision; 2. Re-hear the application on the appropriate legal standard, with an opportunity to both original parties to file new evidence in support or opposition to the application; 3. Allow interventions by any interested parties in the re- hearing; 4. Consider wireless roaming rules in a future proceeding; 5. Grant their reasonable costs of making this application.

2 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

Test for Review and Variance

5. The Commission has quite recently restated its Revised guidelines for review and vary applications under the new CRTC Rules of Practice and Procedure.1

6. According to the revised Guidelines, the test for an application brought under s. 62 of the Telecommunications Act is:

[. . .] that there is substantial doubt as to the correctness of the original decision, for example due to

(i) an error in law or in fact; (ii) a fundamental change in circumstances or facts since the decision; (iii) a failure to consider a basic principle which had been raised in the original proceeding; or (iv) a new principle which has arisen as a result of the decision.

7. PIAC/CAC note that the Guidelines also state in para. 6 that: "there may be instances where [the Commission] will first decide whether a review is warranted – for example, where it considers there was a procedural error – and only then conduct a proceeding to determine whether to vary the decision." PIAC/CAC submit that there are no circumstances that should influence the Commission not to undertake this review and vary application and indeed that the public interest in fair and open wireless competition militates towards hearing of the application.

1 Telecom Information Bulletin CRTC 2011-214, Revised guidelines for review and vary applications (25 March 2011).

3 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

8. Finally, it has always been permitted for a party that is affected by the Commission's decision or order to make an application for review and variance even if that party was not named, or did not intervene in the original application. This openness is continued under the new Guidelines and reflects the language of s. 62 of the Act.

Errors in Law or in Fact

9. PIAC/CAC submit that in making the Decision, the Commission erred in law and in fact in several respects. The focus of most of these errors was in the Commission's interpretation of subs. 27(2) of the Telecommunications Act, which reads:

No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.

10. PIAC/CAC submit that the leading authority on the interpretation of subs. 27(2) remains the Commission's decision in Challenge Communications Ltd. v. Bell Canada, Telecom Decision CRTC 77-16 (23 December 1977) ("Challenge").2

11. That decision yielded the following two-part test under subs. 321(2) of the Railway Act, R.S.C. 1970, c. R-2 [now subs. 27(2) of the Telecommunications Act]:

In order for claims under s. 321(2) to succeed, two essential elements must be present. The first is discrimination, preference,

2 Reported at [1977-78] 3 C.R.T.C. 489. Affirmed on this point on appeal: Bell Canada v. Challenge Communications Limited, [1979] 1 F.C. 857; (1978), 86 D.L.R. (3d) 351; 22 N.R. 1 (C.A.).

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advantage, prejudice or disadvantage in the circumstances specified in s. 321(2)(a), (b) and (c); and the second is the absence of justification as provided for in the concluding part of s. 321(2). The burden of proof with respect to the first element rests with the Applicant, and the second with the Respondent.3

12. The Commission found that Globalive (WIND Mobile) failed to demonstrate a preference, as required by the first stage of the Challenge test (Decision, paras. 25 and 26).

13. In making this finding, the Commission stated it was relying upon the fact there was " insufficient evidence" of a preference (para. 26).

14. In so doing, however, the Commission misdirected itself on the law. Both subs. 27(2) and Challenge only require that the applicant show at the first stage that there is any difference in treatment of companies or of customers and that either difference is the "result or consequence of any corporate policy, act or omission" of the respondent.4

15. Challenge also noted that the terms (preference, advantage, prejudice or disadvantage) in s. 321(2) of the Railway Act: "all relate to the comparative treatment by the company of different persons [. . .] who may consequentially benefit or suffer from such treatment, whether intentionally or otherwise."5 Therefore intention of the respondent is irrelevant.6 Only the effect of the treatment on the applicant is relevant.

16. Finally, Challenge established that: "the terms advantage and disadvantage refer to the nature, extent and result of favourable or

3 [1977-78] 3 C.R.T.C. 489 at 495. 4 [1977-78] 3 C.R.T.C. 489 at 496. 5 [1977-78] 3 C.R.T.C. 489 at 496. 6 [1977-78] 3 C.R.T.C. 489 at 496: "The result or consequence of any corporate policy, act or omission would be a sufficient basis for a finding of discrimination, advantage or disadvantage."

5 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

unfavourable treatment by the company. The term discrimination refers to differential treatment by the company of different persons who are under substantially similar conditions." In other words, there are two separate grounds upon which an applicant may rely under the now subs. 27(2): disadvantage or discrimination.

17. The tests for disadvantage and discrimination are different. Disadvantage focuses on "the nature, extent and result of favourable or unfavourable treatment by the company", that is, the type, scope and the effect of the respondent's actions on others. There is no requirement of similarly situated customers or companies. The focus of the inquiry is on the actions of the respondent vis-a-vis the party complaining.

18. By contrast, the test for discrimination requires differential treatment of customers or companies that are "under substantially similar conditions" (which can include the company complained of favouring itself). Thus a comparison of relative positions of customers or companies vis-a-vis the respondent is required.

19. PIAC/CAC submit that the first stage of the Challenge test presents a threshold that is particularly low; in effect, applicants must show only a difference in effective use, control or enjoyment that is within the control of the respondent; also, as noted, intent is irrelevant.

20. In fact, the Commission itself found as a fact that there had been a difference in effect upon customers of WIND (and in relation to Rogers) as compared to customers of Chatr (and in relation to Rogers):

The Commission also notes that, while Chatr customers do not experience dropped calls when they travel from a Chatr

6 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

zone to an Out of Chatr zone on the Rogers network, WIND customers’ in-progress calls are dropped when they transit from WIND’s network to Rogers’ network.7

21. The advantage (looked at from Chatr customer point of view) is to have a call continue with no transmission problem despite the Rogers (Chatr) customer transiting out of a all-in pricing zone to a per-minute pricing zone. A further advantage is that these zones are largely congruent with a WIND customer's all-in pricing zone, except for the major, glaring disadvantage for the WIND customer that the in- progress call will be dropped when transiting to transiting out of a all-in pricing zone to a per-minute pricing zone. The Commission found this difference in fact in para. 23 of the Decision.

22. The Commission however immediately examined the circumstances of how the difference arose and how it was presented: namely that the roaming agreement negotiated by Rogers and Globalive did not require seamless roaming; and that the main consequence of this lack of seamless roaming was, according to Globalive's characterization, that Chatr appeared in advertisements to be "more reliable":

The Commission notes that WIND’s claim was based on Rogers’ multimedia campaign. Given this, and the fact that the terms and conditions of the roaming agreement negotiated between WIND and Rogers do not require seamless roaming, the Commission is not persuaded that WIND has demonstrated the existence of a preference in the circumstances of this case.8

7 Telecom Decision 2011-360, at para. 23. 8 Telecom Decision 2011-360, at para. 25.

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23. However, the first part of the unjust discrimination test only requires a showing of "the nature, extent and result of favourable or unfavourable treatment by the company". Whether there was an agreement between the carriers9 or whether the advertising unduly affected WIND is not relevant at this stage of the inquiry.

24. With respect, the only task of the Commission at this stage (subs. 27(2)) is to determine if there is any preference or (dis)advantage. The Commission clearly found and described the nature, extent and result of the unfavourable treatment in para. 23 of the Decision.

25. That is a factual finding of disadvantage or preference. Therefore the Commission's statement in para. 26 that "there is insufficient evidence that Rogers has granted itself a preference" is in error and contradictory as it has just made this finding that there is evidence of a preference or disadvantage in para. 23.

26. The Commission's further inquiry into reasons for the difference, at this stage of the inquiry into preference or advantage, is a legal error.

27. This conflation of the two steps would be less serious a legal error were it not for the burden shift which is expressed in subs. 27(4): the party that creates the advantage or disadvantage is required to adduce evidence that the advantage or preference is not undue. This burden was never laid upon Rogers, which is a further legal error.

9 Existence of an agreement, whether approved by the Commission or not, while potentially relevant to a determination of undueness under subs. 27(4), is not relevant at the stage of determining if there is a preference or advantage in fact under subs. 27(2). See Superior Wireless, infra, and Telecom Decision CRTC 92-18, MARITIME TELEGRAPH AND TELEPHONE COMPANY LIMITED - REVIEW OF SERVICE AGREEMENTS WITH THE ISLAND TELEPHONE COMPANY LIMITED AND WITH MT&T MOBILE INC. (5 October 1992). Online: http://www.crtc.gc.ca/eng/archive/1992/DT92-18.HTM

8 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

28. With respect, this collapsing of the inquiry under the first part of the unjust discrimination/undue preference test effectively reads subs. 27(4) out of the Telecommunications Act and with it, a statutory protection of customers and competitors that has been on all telecommunications services providers from the earliest days of telecommunications and public utilities law.

29. Subsection 27(4) reads:

The burden of establishing before the Commission that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the Canadian carrier that discriminates, gives the preference or subjects the person to the disadvantage. [Emphasis added.]

30. If the inquiry into unjustness or undueness were to occur under subs. 27(2), then subs. 27(4) and the wording "any discrimination" and "any preference or disadvantage" would be redundant. Principles of statutory interpretation state that meaning should be given to all sections of an Act, where possible.

31. Without this burden shift, and the evidence that consequently must be adduced by the respondent, any potential appeal from the Commission to the Federal Court of Appeal is extremely difficult. The appellant in this case would have no "law" upon which to argue, that is, the appellant would not have the Commission's legal interpretation of undueness based on the explanation of the respondent.

9 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

Previous rulings on discrimination and preference

32. The Commission has also, in the past, ruled on very similar applications to the present one by applying the two-part discrimination test properly.

33. In Part VII application by Superior Wireless Inc. against TBayTel alleging unjust discrimination (25 May, 2006), Telecom Decision CRTC 2006-33,10 the Commission found that that while TBayTel did discriminate against Superior's customers when it unilaterally deactivated digital roaming, the discrimination was not unjust, in part because the two companies' networks overlapped and because analogue roaming was still possible.

34. However, in Superior Wireless, the Commission went to great pains to separate the two stages of the discrimination inquiry under s. 27:

22. In the following analysis, the Commission addresses whether TBayTel's actions amounted to discrimination within the meaning of section 27 of the Act and, if so, whether such discrimination was unjust.

23. The Commission disagrees with TBayTel's submission that Superior and its customers are not the subject of discrimination in the circumstances of this case because there are no comparable businesses or customers that are being treated more favourably or differently by TBayTel. The Commission considers that TBayTel's definition of discrimination is unduly narrow.

10 Online: CRTC http://www.crtc.gc.ca/eng/archive/2006/dt2006-33.htm (Superior Wireless).

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24. The Commission considers that because other wireless service providers' customers are permitted to roam on TBayTel's digital network in area Tel-24, while Superior's customers are not, Superior and its customers are subject to discrimination by TBayTel within the meaning of section 27 of the Act. At the same time, the Commission notes that discrimination in and of itself is not contrary to the Act.

35. Thus in Superior Wireless, the Commission found, as was also noted in Challenge, that the services compared need not be exactly the same service to constitute the basis of the discrimination or preference.

36. Yet, in Decision 2011-360 the Commission appeared to consider the different nature of the roaming underlying Chatr and WIND at this early stage of the decision.11 As such, the Commission has made it much harder for applicants to cross the intentionally low hurdle of discrimination, preference or advantage in subs. 27(2) of the Act.

37. In the circumstances of this Decision, PIAC/CAC submit that the Commission's own interpretation of the definition of discrimination or preference is unduly narrow and constitutes again a legal error, based on its previous views in similar applications under subs. 27(2).

38. Likewise in Telecom Decision CRTC 2003-26, Application by Microcell regarding alleged contraventions of section 27(2) of the Telecommunications Act by Rogers Wireless and Bell Mobility (28 April 2003),12 the Commission found discrimination against Microcell by Bell and Rogers by their making exclusive offers only to Microcell customers but also found that the discrimination was not undue due to

11 See Decision 2011-360 at paras. 16-21, esp. the summary of Rogers' argument at para. 20. 12 Online: http://www.crtc.gc.ca/eng/archive/2003/dt2003-26.htm (Microcell).

11 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

"rivalrous behaviour" in the "robustly competitive circumstances of the wireless market" (at paras. 57-8).

39. In that decision, Bell Mobility had argued that Microcell would have to demonstrate "that Bell Mobility had unjustly discriminated against Microcell in relation to a telecommunications service provided by Bell Mobility to Microcell". The Commission rejected this interpretation of subs. 27(2) as too narrow.

40. The Microcell decision shows the Commission concerned at the customer level of the effect of the preference, discrimination or advantage. Here, WIND has shown, and the Commission has accepted in para. 23 that at the customer level, WIND customers have dropped calls and Chatr customers do not, when they are traversing largely the same areas.

41. PIAC/CAC therefore submit that the Commission has carefully preserved the two stages of the test in other subs. 27(2) applications, in part by keeping the initial test of disadvantage or discrimination low and its ambit broad, both in services to be compared and in effect upon all the players, customers included, of the actions complained of.

42. As a result, PIAC/CAC contend the Commission misinterpreted and misapplied the law with respect to subs. 27(2) and subs. 27(4) in the Decision and that the Decision should be rescinded and reheard.

Seamless Roaming

43. The Commission has declared in the Decision that now is not the time to consider seamless roaming arrangements:

12 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

in view of the fact that there is insufficient evidence on the record to make a finding of preference under subsection 27(2) of the Act, it would be inappropriate to deal with the issue of mandating seamless roaming. The Commission notes, however, that the parties are free to negotiate any seamless roaming arrangement in good faith.13

44. We beg to differ. Now is precisely the time the Commission should consider seamless roaming and indeed all roaming arrangements across the wireless industry as a necessary step towards creating a level playing field for all wireless competitors and consumer choice.

45. PIAC/CAC note that the issue has arisen in the context of several FCC decisions where it has been discussed as a key component of negotiated voice and data roaming agreements.14

46. PIAC/CAC submit that in order to stay competitive in the North American market, and to reflect the importance of roaming to consumers and as a condition of competition in wireless, that the Commission should undertake a public Notice of Consultation in relation to roaming in any event of the instant Decision.

Conclusions

47. In summary, the Consumer Groups submit that the Commission erred in law in its interpretation and application of the proper test for disadvantage, discrimination or preference in the Decision.

13 Para. 27. 14 In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, FCC 11-52, WT Docket No. 05-265 (April 7, 2011). Online: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-52A1.pdf See also Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, FCC 07-143, WT Docket No. 05-265, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15817, 15818 ¶ 1 (2007). Online: http://www.qsiconsulting.com/pdf/Roaming_WT_Dkt_05-265_8-16-07.pdf

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48. PIAC/CAC therefore request that the Commission:

49. All of which is respectfully submitted, this 30th day of August, 2011.

14 Part I Application by PIAC/CAC to Review and Vary Telecom Decision 2011-360 August 30, 2011

List of Parties Served

1. Rogers Communications Inc.: David Watt [[email protected]] 2. Chatr Communications Inc.: Ken Englehart [[email protected]] 3. Globalive Wireless Management Corp., operating as Wind Mobile: Simon Lockie [[email protected]]

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Notice

This application is made on behalf of The Public Interest Advocacy Centre and The Consumers' Association of Canada, c/o John Lawford, Counsel, Public Interest Advocacy Centre, One Nicholas Street, Suite 1204, Ottawa, Ontario K1N 7B7, on behalf of PIAC/CAC.

TAKE NOTICE that pursuant to section 25, and, as applicable section 26 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR/2010-277), the respondent or intervener is required to mail or deliver or transmit by electronic mail his answer to this application to the Secretary General of the Canadian Radio-television and Telecommunications Commission, Central Building, 1 Promenade du Portage, Gatineau (Québec) J8X 4B1, and to serve a copy of the answer on the applicant by 29 September 2011.

Service of the copy of the answer on the applicant may be effected by personal delivery, by electronic mail, or by ordinary mail. In the case of service by personal delivery, it may be effected at the address set out above.

If the respondent does not file or serve his answer within the time limit prescribed, the application may be disposed of without further notice to him.

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