CT-2015- THE COMPETITION TRIBUNAL IN THE MATTER of the Competition Act, R.S.C. 1985, c. C-34 as amended; AND IN THE MATTER of a Consent Agreement pursuant to section 74.12 of the Competition Act with respect to certain deceptive marketing practices of the Respondent under subsection 74.01(1) of the Competition Act.
BETWEEN: THE COMMISSIONER OF COMPETITION Applicant
-and – BELL CANADA Respondent
CONSENT AGREEMENT WHEREAS the Commissioner of Competition (the “Commissioner”) is responsible for the administration and enforcement of the Competition Act (the “Act”);
AND WHEREAS the Respondent, Bell Canada, is a corporation and wholly-owned subsidiary of BCE Inc., which owns and operates telecommunications companies providing wireless, digital voice, text and data services to business and residential consumers across Canada, including through Bell Mobility Inc. and Virgin Mobile (a division thereof);
AND WHEREAS the Respondent develops and publicly releases mobile applications for consumers, which are available on a number of operating systems, including the Apple iOS and Android platforms;
AND WHEREAS the Respondent is responsible for the development and public release of the free “MyBell Mobile” and “Virgin Mobile My Account” apps (the “Affected Apps”), which allow existing customers to access their wireless accounts from a wireless mobile device, in order to perform tasks such as checking outstanding balances, making payments, viewing data usage and managing pricing plans;
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AND WHEREAS the Respondent released new versions of the Affected Apps to the public on November 18, 2014, on the Apple iOS and Android platforms via the “iTunes App Store” and the “Google Play Store”;
AND WHEREAS the Commissioner commenced an inquiry on December 18, 2014, into the marketing practices of the Respondent pertaining to the Affected Apps;
AND WHEREAS the Commissioner has concluded that the Respondent encouraged certain Bell employees, including those involved in the development of the Affected Apps, to download the Affected Apps, use them and, if they liked them, to give the Affected Apps “5-star” ratings and provide positive consumer reviews of the Affected Apps (the “Representations”) on the iTunes App Store and the Google Play Store for the purpose of promoting the Affected Apps;
AND WHEREAS the Commissioner has concluded that the Representations were made to the public on one or both of the iTunes App Store and the Google Play Store;
AND WHEREAS the Representations did not reveal that they were made by Bell employees rather than independent consumers;
AND WHEREAS the Commissioner has concluded that the Representations created the materially false or misleading general impression that they were made by independent and impartial consumers;
AND WHEREAS the Commissioner has concluded that as soon as senior management at Bell became aware of the Representations from media reports they required that the Representations be removed;
AND WHEREAS as a result of these actions, the Commissioner has concluded that the Representations by Bell employees on the iTunes App Store and the Google Play Store were removed shortly after senior management at Bell became aware of the Representations from media reports;
AND WHEREAS the ratings provided by the Bell employees temporarily affected the overall star rating for the Affected Apps in the iTunes App Store and the Google Play Store until such time as they were removed;
AND WHEREAS the Commissioner has been advised by the Respondent that it had taken steps to notify all staff via its internal intranet site that it had amended its “Social Media Guidelines” as of January 9, 2015, to include a policy prohibiting the public posting of ratings, rankings or reviews of Bell’s products or Apps by Bell employees and that non-compliance could result in disciplinary action up to and including termination of employment;
AND WHEREAS the Commissioner is of the view that ratings and reviews have become an important source of information for consumers;
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AND WHEREAS the Respondent addressed the matter proactively with the Bureau, provided full, timely and ongoing co-operation with the Bureau’s inquiry, and demonstrated leadership in resolving the matter in order to protect the integrity of the digital marketplace for the benefit of consumers;
AND WHEREAS the Respondent has advised the Commissioner that as part of its commitment to the integrity of the digital economy it will sponsor and host a workshop on online advertising, within a year of registration of this Agreement, to promote, discuss and enhance Canadians’ trust in the digital economy, which will include content relating to the integrity of online reviews;
AND WHEREAS the Commissioner concluded that, based on the above, the elements of subsection 74.01(1) of the Act have been met, but that no restitution is warranted in the circumstances;
AND WHEREAS the Respondent does not admit to the Commissioner’s conclusions, but for the purposes of this Agreement only, including execution, registration, enforcement, variation and rescission, does not contest the Commissioner’s conclusions, and nothing in this Agreement shall be taken as an admission by the Respondent thereof, nor shall it derogate from any rights or defences of the Respondent against third parties;
AND WHEREAS the Parties are satisfied that this matter can be resolved with the registration of this Agreement which, upon registration, shall have the same force and effect as an order of the Tribunal;
AND WHEREAS the Commissioner has agreed to more favourable terms in this Agreement than would otherwise be the case because of the Respondent’s full and timely cooperation with the Commissioner’s inquiry;
NOW THEREFORE in order to resolve the Commissioner’s concerns, the Parties hereby agree as follows:
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I. INTERPRETATION 1. For the purpose of the Agreement, the following definitions shall apply: a. “Act” means the Competition Act, R.S.C. 1985, c. C-34, as amended; b. “Affected Apps” means the “MyBell Mobile” and “Virgin Mobile My Account” Apps; c. “Affiliate” means an affiliated corporation, partnership or sole proprietorship within the meaning of subsection 2(2) of the Act;
d. “Agreement” means this Consent Agreement entered into by the Parties pursuant to section 74.12 of the Act;
e. “Android” means a mobile operating system, currently developed by technology company Google;
f. “App” means a computer program designed to run on a smartphone, tablet computer or other mobile device, and available through a digital distribution platform;
g. “App Store” means the Google Play Store, the iTunes App Store, or any other online digital distribution platform developed and operated for the purchase and download of digital media on an online platform and on which consumers can publicly post App ratings and reviews;
h. “Bell Canada” and “Bell” mean The Bell Telephone Company of Canada or Bell Canada, which was federally incorporated on January 1, 2007, its directors, officers, employees, agents, representatives, successors and assigns, and all joint ventures, subsidiaries, divisions and Affiliates controlled by Bell Canada within the meaning of subsection 2(4) of the Act, and the respective directors, officers, employees, agents, representatives, successors and assigns of each;
i. “Bell Employee” means any individual who is hired by Bell Canada to provide services to Bell Canada in exchange for compensation;
j. “Commissioner” means the Commissioner of Competition appointed pursuant to Section 7 of the Act, and his authorized representatives;
k. “Compliance Program” has the meaning set out in paragraph 5 of this Agreement; l. “Days” means calendar days; m. “Google Play Store” means an online digital distribution platform developed and operated by Google, used to purchase and download digital media on the “Android” platform and on which consumers can publicly post App ratings and reviews; ~ 4 ~
n. “iOS” means a mobile operating system created and developed by technology company Apple Inc. and distributed exclusively for Apple Inc. hardware;
o. “iTunes App Store” means an online digital distribution platform developed and operated by Apple Inc., used to purchase and download digital media on the “iOS” platform and on which consumers can publicly post App ratings and reviews;
p. “Parties” means the Commissioner and the Respondent collectively, and “Party” means any one of them;
q. “Person” means any individual, corporation, partnership, firm, association, trust, unincorporated organization or other entity;
r. “Product” means an article and a service within the meaning of subsection 2(1) of the Act;
s. “Respondent” means Bell Canada; t. “Respondent’s Senior Management” means the current and future President and Chief Executive Officer, Presidents, Group Presidents and Executive Vice Presidents as those positions may be designated from time to time;
u. “Tribunal” means the Competition Tribunal established by the Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.), as amended.
II. COMPLIANCE WITH SUBSECTION 74.01(1) OF THE ACT 2. The Respondent shall not direct, encourage, or incentivize any Bell Employees or contracted individuals to rate, rank or review an App in an App Store.
III. PAYMENTS ADMINISTRATIVE MONETARY PENALTY 3. The Respondent shall pay an administrative monetary penalty in the amount of $1,250,000 Canadian dollars.
FORM AND TIME OF PAYMENT 4. The payment referred to in paragraph 3 shall be made forthwith by certified cheque or by wire transfer payable to the Receiver General for Canada.
IV. CORPORATE COMPLIANCE PROGRAM 5. Within sixty (60) Days of the date of the registration of this Agreement, the Respondent shall, as necessary, enhance and thereafter maintain its Corporate Compliance Program
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(“Compliance Program”) with a specific focus on the prohibition set out in Paragraph 2 of this Agreement. The Compliance Program shall be framed and implemented in a manner consistent with the Commissioner’s bulletin titled “Corporate Compliance Programs”, as published (as of the date of execution of this Agreement) on the Competition Bureau’s website at:
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03942.html. 6. Respondent’s Senior Management shall fully support and enforce the Compliance Program and shall take an active and visible role in its establishment and maintenance.
7. Within 21 days after the establishment of the Compliance Program, each member of Respondent’s Senior Management shall acknowledge his or her receipt of the Agreement and commitment to the Compliance Program by signing and delivering to the Commissioner a commitment letter in the form set out in Appendix “A” of this Agreement. Any individual that becomes a member of Respondent’s Senior Management during the term of this Agreement shall sign and deliver to the Commissioner a commitment letter in the form set out in Appendix “A” of this Agreement, within 21 days of becoming a member of Respondent’s Senior Management.
V. COMPLIANCE REPORTING AND MONITORING 8. The Respondent shall provide to the Commissioner, within 30 days following receipt of a written request from the Commissioner, such information, in such form as the Commissioner reasonably requests, for the purposes of monitoring compliance with this Agreement. In the event that the Respondent is unable to comply within 30 days and the parties are unable to agree on an alternative schedule, or the Respondent believes that the Commissioner’s request is unreasonable, the Respondent may apply to the Tribunal for an order or directions.
9. No later than 120 days after the execution of this Agreement, the Respondent shall provide to the Commissioner a statement under oath or solemn affirmation of the Executive Vice President and Chief Legal & Regulatory Officer that the Compliance Program required by Part IV of this Agreement has been implemented.
VI. GENERAL 10. Notices, reports and other communications required or permitted pursuant to any of the terms of this Agreement shall be in writing and shall be considered to be given if dispatched by personal delivery, registered mail, facsimile transmission or email to the Parties at the following addresses:
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(a) The Commissioner: Commissioner of Competition Competition Bureau Canada Place du Portage, 21 st Floor 50 Victoria Street, Phase I Gatineau, Quebec KlA OC9
Attention: Deputy Commissioner of Competition, Deceptive Marketing Practices Directorate, Cartels and Deceptive Marketing Practices Branch
Facsimile: 819-953-4792 Email: stephane.lamoureux@cb-bc.gc.ca
With a copy to: Executive Director and Senior General Counsel Competition Bureau Legal Services Department of Justice Place du Portage, 22nd Floor 50 Victoria Street, Phase I Gatineau, Quebec KlA OC9
Facsimile: 819-953-9267 Email address: jonathan.chaplan@cb-bc.gc.ca
(b) The Respondent: Attention: Corporate Secretary Bell Canada 7th Floor, Building A Carrefour Alexander-Graham-Bell Verdun, QC H3E 3B3 Canada
Facsimile: (514) 766-8161 Email: corporate.secretariat@bell.ca
With a copy to: Melanie Schweizer Vice-President, Legal Bell Canada 5025 Creekbank Road, Floor 5S
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Mississauga, Ontario L4W 0B6 Facsimile: 905-212-0666 Email: melanie.schweizer@bell.ca
11. This Agreement shall be binding upon the Respondent as defined herein for a period of three (3) years following its registration.
12. The Parties consent to the immediate registration of this Agreement with the Tribunal. 13. The Commissioner may, in his sole discretion and after informing the Respondent in writing, extend any of the time frames in Parts IV and V of this Agreement.
14. Nothing in this Agreement precludes the Respondent or the Commissioner from bringing an application under section 74.13 of the Act. The Respondent will not, for the purposes of this Agreement, including execution, registration, enforcement, variation or rescission, contest the Commissioner’s conclusions.
15. This Agreement constitutes the entire agreement between the Commissioner and the Respondent and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral, with respect to the subject matter hereof.
16. The Respondent attorns to the jurisdiction of the Tribunal for the purposes of this Agreement and any proceeding initiated by the Commissioner relating to this Agreement for variation or rescission.
17. In the event of a dispute as to the interpretation or application of this Agreement, any of the Parties shall be at liberty to apply to the Tribunal for an order or directions. The Parties agree that the Tribunal has jurisdiction to make such order as is required to give effect to this Agreement.
18. This Agreement may be executed in two or more counterparts, each of which shall be an original instrument, and all of which taken together shall constitute one and the same instrument. In the event of any discrepancy between the English and French versions of this Agreement, the English version shall prevail.
19. The computation of time periods contemplated by this Agreement shall be in accordance with the Interpretation Act, R.S.C. 1985, c. 1-21. For the purpose of this Agreement, the definition of “holiday” in the Interpretation Act shall include Saturday. For the purposes of determining time periods, the date of this Agreement is the last date on which it is executed by a Party.
The undersigned hereby agree to the filing of this Agreement with the Tribunal for registration.
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DATED at Ottawa in the Province of Ontario, this 13 [Original signed by Mirko Bibic]
Bell Canada Mirko Bibic of Bell Canada (EVP and Chief Legal & Regulatory Officer) I have authority to bind the corporation.
DATED at Gatineau, in the Province of Quebec, this 14 th day of October 2015. [Original signed by John Pecman] Commissioner of Competition John Pecman
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th day of October 2015.
Appendix “A”-Acknowledgement by Senior Management [Corporate Company Letterhead] [date], 2015
CONFIDENTIAL Commissioner of Competition Competition Bureau Place du Portage, Phase 1 50 Victoria Street, 21st Floor Gatineau (QC) KlA OC9
RE: Commitment to Establishment and Maintenance of Compliance Program I have received a copy of the Consent Agreement between the Commissioner of Competition (the “Commissioner”) and Bell Canada, dated , 2015. Further to paragraph 7 of the Consent Agreement, I hereby commit to the successful implementation of the Compliance Program described therein. I confirm that Respondent’s Senior Management and other senior leaders at Bell will take an active and visible role in the establishment and maintenance of the Compliance Program.
Sincerely, (Name and title) cc: Executive Director and Senior General Counsel, Competition Bureau Legal Services Deputy Commissioner of Competition, Deceptive Marketing Practices Directorate, Cartels and Deceptive Marketing Practices Branch
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