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CT-2022-002 THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34; AND IN THE MATTER OF the proposed acquisition by Rogers Communications Inc. of Shaw Communications Inc.;
AND IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to section 92 of the Competition Act.
B E T W E E N: COMMISSIONER OF COMPETITION Applicant – and – ROGERS COMMUNICATIONS INC. AND SHAW COMMUNICATIONS INC. Respondents – and – ATTORNEY GENERAL OF ALBERTA and VIDEOTRON LTD.
Intervenors
NOTICE OF MOTION (Motion to Strike Portions of Witness Statements Delivered by the Commissioner)
TAKE NOTICE THAT the Respondents, Rogers Communications Inc. and Shaw Communications Inc., will make a motion to Chief Justice Crampton on Friday, October 28, 2022.
THE MOTION IS FOR:
(a)
an Order striking out portions of the Witness Statements served and filed by the Commissioner of Competition, as described in Appendix A attached hereto.
(b)
(c)
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the costs of this motion; and
such further and other relief as the Tribunal may deem just.
THE GROUNDS FOR THE MOTION ARE: 2. The Commissioner of Competition has moved to strike out portions of the Witness Statements delivered by the Respondents in this proceeding. The motion is ill-conceived. There is no proper basis for the concerns expressed. Further, they can and should be addressed at trial (including in argument following the completion of the evidentiary phase), rather than in the context of a preliminary motion. That is particularly so in fast-moving, real-time litigation such as this that is subject to the Tribunal’s expedited procedures.
3. Moreover, the contents of the Witness Statements of the Respondents that the Commissioner now complains of mirror the contents of Witness Statements that the Commissioner has filed not only in this proceeding, but also in previous proceedings before the Tribunal. For that reason alone his complaints ring decidedly hollow.
4. To the extent that the Tribunal determines that the Commissioner’s motion should be granted in whole or in part, and strikes out portions of the Witness Statements delivered by the Respondents, portions of the Witness Statements delivered by the Commissioner must also be struck out. The playing field the parties are litigating this proceeding on must be level. Complaints expressed by the Commissioner apply with equal force to Witness Statements he now relies upon, as set out in Appendix A to this Notice of Motion.
5.
6.
The Respondents have brought this motion for that reason.
The Respondents rely upon:
(a)
Rules 2(1), 68 and 74 of the Competition Tribunal Rules; and
(b)
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such further or other grounds as counsel may advise and the Tribunal may permit.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
(c)
(d)
(e)
(f)
Appendix A;
the Witness Statements that have been served and filed by the parties in this proceeding;
the Affidavit of Tanya Barbiero, to be sworn; and
such further and other evidence as counsel may advise and the Tribunal may permit.
October 17, 2022
DAVIES WARD PHILLIPS & VINEBERG LLP 155 Wellington Street West Toronto, ON M5V 3J7
Kent E. Thomson (LSO #24264J) Tel: 416.863.5566 kentthomson@dwpv.com Derek D. Ricci (LSO #52366N) Tel: 416.367.7471 dricci@dwpv.com Steven G. Frankel (LSO #58892E) Tel: 416.367.7441 sfrankel@dwpv.com Chanakya A. Sethi (LSO #63492T) Tel: 416.863.5516 csethi@dwpv.com
Counsel for Shaw Communications Inc.
TO:
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ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services Place du Portage, Phase I 50 Victoria Street, 22nd Floor Gatineau, QC K1A 0C9
John S. Tyhurst Derek Leschinsky Katherine Rydel Ryan Caron Kevin Hong
AND TO:
Counsel to the Commissioner of Competition LAX O’SULLIVAN LISUS GOTTLIEB LLP Suite 2750 145 King Street West Toronto, ON M5H 1J8
Jonathan Lisus (LSO# 32952H) Tel: 416.59878736 jlisus@lolg.ca Crawford Smith (LSO# 42131S) Tel: 416.598.8648 csmith@lolg.ca Matthew Law (LSO# 59856A) Tel: 416.849.9050 mlaw@lolg.ca Bradley Vermeersch (LSO# 69004K) Tel: 416.646.7997 bvermeersch@lolg.ca
Counsel for Rogers Communications Inc.
AND TO:
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BENNETT JONES LLP 3400 One First Canadian Place Toronto, On M5X 1A4
John F. Rook Q.C. Tel: 416.777.4885 RookJ@Bennettjones.com Emrys Davis Tel: 416.777.6242 DavisE@Bennettjones.com Alysha Pannu Tel: 416.777.5514 PannuaA@Bennettjones.com
AND TO:
Counsel for Videotron Ltd. GOVERNMENT OF ALBERTA Justice and Solicitor General Legal Services Division 4th Floor, Bowker Building 9833 -109 Street Edmonton, AB T5K 2E8
Kyle Dickson-Smith Opeyemi Bello
Tel:
780.644.5554 kvle.dickson-smith@gov.ab.ca
Counsel for the Intervenor, Attorney General of Alberta
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APPENDIX “A”
Blaik Kirby ................................................................................ Charlie Casey .......................................................................... Christopher Hickey .................................................................. Denis Albert ............................................................................. Nazim Benhadid ...................................................................... Sameer Dhamani ..................................................................... Stephanie Assad ..................................................................... Stephen Howe ......................................................................... Sudeep Verma .........................................................................
Item
Witness Statement Reference
Blaik Kirby 1. Blaik Kirby
Page 6; Para. 13
Statement
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Basis for Obje
13. In response to these “Big Gig” plans launched This paragraph in 2017, Rogers and the other national opinion eviden wireless carriers introduced significant discounts and promotions on their own wireless plans throughout 2018 and into 2019.In our case, these A lay witness c included 10 GB plans (which was then the largest beyond their ow data bucket typically offered in the Canadian businesses. market) launched broadly for a brief time in December 2017 at prices $60 lower than those Mr. Kirby, as a available before the Big Gig plans had been position to opin launched, Rogers and oth launching certa
.
2.
Blaik Kirby
Page 10; Para. 20
20. Shaw Mobile’s launch was highly successful. As of August 2020, we estimated that it already had approximately in British Columbia and Alberta. Shaw Mobile’s offerings were highly attractive to all consumer segments including price-conscious consumers and multi- line family households.
This paragraph opinion eviden
A lay witness c beyond their ow businesses.
Mr. Kirby, as a position to opin Mobile or whet offerings were
Item
3.
4.
5.
Witness Statement Reference
Blaik Kirby
Blaik Kirby
Blaik Kirby
Page 10; Para. 21
Page 11; Para. 25
Page 12; Para. 26
Statement
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Basis for Obje
21. Shaw Mobile’s growth was most prominent in This paragraph regions where Rogers was the largest competitor, hearsay eviden and it was gaining significant subscribers from the Rogers and Fido brands. Our internal analysis based on data obtained from Mr. Kirby relies showed that party, contents witho Respondents t
. Our analysis conducted in September 2020 concluded that “ .”
25. Without our wireline infrastructure and operations, Bell would not be as effective a wireless competitor as we are today. My experience in the Canadian telecommunications industry indicates that is true for all integrated wireless competitors in Canada, including Shaw/Freedom Mobile. For example, I have observed that Videotron’s position as an integrated wireless and wireline competitor in Quebec, leveraging tactics such as cross-selling wireless services and offering large multiproduct discounts, has been essential to its ability to succeed as a disruptive competitor in that province.
26. Prior to the announcement of the Proposed Acquisition, Shaw Mobile was beginning to play a similarly disruptive role in Alberta and British
accuracy of tha process throug Admitting this e procedurally un would impede the Tribunal.
This paragraph opinion eviden
A lay witness c beyond their ow businesses.
Mr. Kirby, as a position to opin of wireline infra wireless compe Shaw/Freedom
This paragraph opinion eviden
Item
6.
7.
Witness Statement Reference
Blaik Kirby
Blaik Kirby
Page 12; Para. 28
Page 13; Para. 29
Statement
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Columbia. I expected Shaw Mobile to continue to play this role and to increase its impact on the market, just as Videotron had done previously, given that it was in a similar position to the one occupied by Videotron when it launched – namely, a well-capitalized company with a large established wireline subscriber base, a well- established local brand, and a small wireless subscriber base and market share. If the Proposed Acquisition does not proceed, I expect Shaw Mobile will return to playing this disruptive role in the market.
28. Based on my observation of the wireless market in Canada since 2008, I consider that Rogers and Shaw are often each other’s closest wireless competitor. By this I mean that Shaw’s competitive behaviour (pricing, promotions, etc.) in the wireless market appears to be most heavily influenced by the competitive behaviour of Rogers and, conversely, that Rogers’ competitive behaviour appears to be most heavily influenced by the competitive behaviour of Shaw.”
29. In the ordinary course of my day to day responsibilities, I am regularly involved in assessing competitive initiatives in the market and, where appropriate, responding to them. This involves, for example, tracking changes to pricing or other changes to the offers of our competitors.
Basis for Obje
A lay witness c beyond their ow businesses.
Mr. Kirby, as a position to opin that Shaw Mob transaction bet does not proce
This paragraph opinion eviden
A lay witness c beyond their ow businesses
Mr. Kirby, as a position to opin competitive dy Shaw.
This paragraph opinion eviden
A lay witness c beyond their ow businesses.
Item
8.
9.
Witness Statement Reference
Blaik Kirby
Blaik Kirby
Page 13; Para. 32
Page 14; Para. 33
Statement
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In doing so, I have observed and Bell’s internal documents reflect that the impact of Shaw on the market has most frequently been seen in the first instance through its impact on Rogers. . In other words, changes in the offers available in the market (such as the introduction of a particular promotion or a reduction in the cost of a wireless service plan) often result from a change made by Shaw, to which Rogers then responds, .
Basis for Obje
Mr. Kirby, as a position to opin in the wireless a position to op relationship be offerings of Sh
32. I have also observed that Shaw has targeted This paragraph areas where Rogers has long been the market opinion eviden leader – in particular, the Greater Toronto Area and the Greater Vancouver Area, where the combined market shares of Shaw and Rogers A lay witness c . Shaw and Rogers beyond their ow compete closely in other areas of British businesses. Columbia, Alberta, and Ontario as well, and I expect competition between them to continue and Mr. Kirby, as a to increase absent the Proposed Acquisition. position to opin dynamics betw is he in a posit those dynamic transaction bet not completed.
33. In British Columbia and Alberta this increase in the level of competition between Rogers and Shaw would result in particular from the recent launch of Shaw Mobile and its strategy of aggressively selling wireless services to Shaw’s
This paragraph opinion eviden
Item
Witness Statement Reference
Statement
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Basis for Obje
existing wireline customer base. In July 2020, Bell A lay witness c estimated that beyond their ow businesses.
10.
Blaik Kirby
Page 14; Para. 34
. Our estimate
. These are the customers that we observe are being targeted by Shaw Mobile.
Mr. Kirby, as a position to opin dynamics betw is he in a posit the alleged cau
Shaw Mobile’s perception of th
34. Data obtained from , which This paragraph for the reasons set out above I consider to be hearsay eviden reliable, indicates that, in the time period from July 1, 2020 to June 30, 2022, the number of customers switching between Shaw and Rogers Mr. Kirby relies nationally party, contents witho
. These data are summarized in the graph below, which Bell prepared. They show that nearly
Respondents t accuracy of tha process throug Admitting this e procedurally un would impede the Tribunal.
. This leads me to conclude that, across the Shaw footprint, competition between Rogers and
Item
Witness Statement Reference
Statement
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Basis for Obje
Shaw is disproportionately relevant to the competitive dynamic.
11.
Blaik Kirby
Pages 16-17; Paras. 39-41
39. According to data Bell obtained from (which, as described above, I consider to be reliable), Shaw had net ports of
This means that . By Q4 2021 Shaw’s net ports for the quarter were
This paragraph hearsay eviden
Mr. Kirby relies party, contents witho Respondents t
accuracy of tha process throug
. Admitting this e procedurally un would impede 40. Rogers has been the largest beneficiary of the the Tribunal. reduction in Shaw’s competitive efforts following the announcement of the Proposed Acquisition.
.
41. Looking just at the port outflows from Shaw in Q4 2021, Rogers accounts for (i.e., of customers switching to other carriers from Shaw switched to Rogers). Because Rogers typically captures just of wireless net additions, I understand the fact that it accounts for of Shaw’s net port swing and captures of port
Item
Witness Statement Reference
Statement
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Basis for Obje
outflows from Shaw to be a consequence of the particularly close competition between Rogers and Shaw prior to the Proposed Acquisition. These data are reflected in the graph below, which Bell prepared based on the data from
12.
Blaik Kirby
Pages 17-18; Para. 43. Videotron’s primary competitive strategy and, I This paragraph 43 believe, a significant contributing factor to their opinion eviden wireless results in the province of Quebec has been their ability to cross-sell wireless services to their large existing Internet subscriber base and to A lay witness c offer large multiproduct discounts. This strategy beyond their ow plays a disproportionate role in Videotron’s businesses. wireless business. For example, an analysis I presented to Mr. Kirby, as a position to opin Videotron’s com impact on Vide
Item
13.
Witness Statement Reference
Blaik Kirby
Page 18; Para. 45
Statement
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Basis for Obje
45. In addition to its ability to cross-sell services to This paragraph its large existing customer base and offer large opinion eviden multiproduct discounts, Videotron’s results in wireless are supported by its strong brand in the province of Quebec and status as a local A lay witness c champion. For Videotron, all of these factors are beyond their ow unique to Quebec. For example, according to the businesses.
Mr. Kirby, as a position to opin account for Vid Nor is he entitl whether a com is likely to be s geographical m
14.
Blaik Kirby
Page 19; Para. 47
47. For these reasons, I do not expect that, if This paragraph Videotron expands into other provinces, it could or opinion eviden would play the same large and disruptive role as it has done in Quebec, given that it will be very differently positioned. Rather, it is the combination A lay witness c of Shaw and Shaw Mobile that I would expect to beyond their ow play a more disruptive role in the market in Alberta businesses. In and British Columbia. “are not in a be fact to form con economic cons world, nor do th competence”.
Mr. Kirby, as a position to opin Videotron’s fut or role in the w
Item
Witness Statement Reference
Statement
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Basis for Obje
Freedom. Nor or speculate on combination of may play in Alb the transaction does not proce
15.
Blaik Kirby
Page 19; Para. 48
48. Moreover, I expect that even if Videotron expands into other provinces they will continue to prioritize retention and cross-selling to their large Internet and wireless subscriber base in Quebec, even at the expense of growth in other areas. This is because that has been core to their strategy and success, and because the Quebec market will continue to be most important to their financial performance.
This paragraph opinion eviden
A lay witness c beyond their ow businesses. In “are not in a be fact to form con economic cons world, nor do th competence”.
Mr. Kirby, as a position to opin Videotron’s fut
Charlie Casey 16. Charlie Casey
Page 4; Para. 8, 8(a)
8. I believe that Shaw’s competitive intensity in Alberta, British Columbia and in Ontario has decreased materially since the announcement of the Proposed Transaction on March 15, 2021. My belief is based on a number of data points and observations, including the following:
This paragraph opinion eviden
Item
Witness Statement Reference
Statement
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Basis for Obje
a) The Comlink data: Attached to my witness A lay witness c statement as Exhibit A are true copies of three beyond their ow Comlink reports which show the net ports for businesses. Shaw on a monthly basis for the period commencing January 1, 2021 (prior to the announcement of the Proposed Transaction) and Mr. Casey, as ending August 31, 2022, on a national basis, on a in a position to combined Alberta and British Columbia basis; and Shaw’s compe on an Ontario only basis. “competitive in
This paragraph hearsay eviden More specifically, Mr. Casey relie i. The national report shows that Shaw gained third-party, Com net ports in April 2021 and lost net contents witho ports in December 2021. This is an approximate Respondents t 235% decrease in the number of net ports. This representative trend has continued throughout 2022. Shaw of that informa commenced 2022 by losing net ports and in which it was ga August lost net ports. evidence would ii. The combined Alberta and British Columbia the Responden report shows that Shaw gained net ports in truth-seeking fu April 2021 and lost net ports in December 2021. This is an approximate 103% decrease in net ports. Shaw has experienced a drastic decline in net ports in 2022. It commenced the year by gaining net ports and then the decline commenced and in August it lost net ports.
iii.
since the Proposed Transaction was announced. Shaw lost
Item
Witness Statement Reference
Statement
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Basis for Obje
net ports in April 2021 and lost net ports in December 2021. This is an approximate 374% decrease in net ports. This trend has continued throughout 2022. Shaw lost net ports in January 2022 and in August it lost net ports.
iv. A common element of each of these reports, each of which covers a time period after the announcement of the Proposed Transaction, is Shaw’s substantial loss of net ports in the Black Friday-Cyber Monday period (late November) and the Boxing Week period (late December) which suggests that Shaw was not competing vigorously for subscribers during these heavy price promotional periods.
Christopher Hickey 17. Christopher Hickey Page 6; Para. 14
14. Distributel does not view duplicating Shaw’s existing wireline broadband network as practical or feasible.
This paragraph opinion eviden
A lay witness c beyond their ow businesses.
Mr. Hickey, as not in a positio the practicality investments th carriers.
Item
18.
19.
Witness Statement Reference
Christopher Hickey Page 6; Para. 15
Christopher Hickey Page 8; Para. 22
Statement
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Basis for Obje
15. As we demonstrate below, it would not be This paragraph feasible to use Shaw’s regulated wholesale opinion eviden services to offer the wireline Internet service component of a wireline Internet and wireless service bundle similar to Shaw’s current bundled A lay witness c offering as doing so would result in insufficient or beyond their ow negative margins. With respect to off-tariff businesses. agreements, we note that Rogers has entered into only a very limited number of off tariff agreements. Mr. Hickey, as not in a positio the feasibility o wholesale serv Internet service similar to Shaw
22. The spreadsheet also sets out the additional costs that we expected to incur to offer a wireless service similar to the ‘Unlimited’ 25Gb wireless plan that Shaw offers in its wireline Internet and wireless service bundles (see column K of Exhibit I).
. The costs include a contribution towards selling, general, and administrative expenses.
Item
Witness Statement Reference
Denis Albert 20. Denis Albert
Pages 2-4; Paras. 5-14
Statement
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Basis for Obje
5. As part of the Bureau’s review of a merger, the These paragra Bureau seeks a wide variety of perspectives on hearsay eviden the competitive effects of the merger; the Bureau considers the views of not just the merging parties and their competitors, but also from the members The witness m of the general public who are consumers in the “submissions” relevant market. To that end the Bureau receives individuals con submissions from Canadian consumers and transaction bet stakeholders through the Information Centre. The Commissi individuals who submissions as 6. One channel through which the Information proceeding. Th Centre receives submissions is through a web opportunity to c form located on the Bureau’s website (the “Merger authors of the Feedback Form”), located at the following address: https://www.competitionbureau.gc.ca/eic/site/cb- Neither the fac bc.nsf/frm-eng/GH%C3%89T-83KK9Y. Unlike a sought from th request for information issued by a case team, the receipt and num Merger Feedback Form is not associated with a received has a specific merger. The Merger Feedback Form is raised in this p located on a webpage that generally explains the that they have Bureau’s merger review process. Following this they do not), th outweighed ov
Item
Witness Statement Reference
Statement
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explanation, the Merger Feedback Form invites Canadian consumers and stakeholders to submit their views on competition-related issues regarding a transaction.
Basis for Obje
prejudicial effe the evidence is
7. The Merger Feedback Form asks respondents to provide their last name; first name; e-mail address; company, association or organization; the name of the merger on which the respondent is commenting; and the respondent’s comments. The Merger Feedback Form also allows respondents to attach files.
8. Anyone may use to the form at any time to share their views on any merger. Callers to the Information Centre are also directed to submit their views through the Merger Feedback Form.
9. These submissions were received in our receiving e-mail inbox. A few samples were entered in our database called the Bureau Information Management System (“BIMS”) and assigned to the Mergers and Monopolistic Practices (“MMP”) directorate. The remainder of the submissions were placed in a folder accessible by both the Information Centre and the MMP directorate.
10. As part of my duties, I perform the daily triage of all requests coming in the Information Centre’s
Item
Witness Statement Reference
Statement
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Basis for Obje
inbox. In doing so, I have read many of these submissions.
11. The Proposed Transaction aroused a significant interest by consumers in the impact of the Proposed Transaction and the Bureau’s review. Since the announcement of the Proposed Transaction in March 2021, the Information Centre received 7,881 submissions regarding the Proposed Transaction. These submissions were mainly received through the Merger Feedback Form, but submissions were also received through the complaint and information request forms available on the Bureau’s website at https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/h_03167.html. These submissions came from the general pubic, competitors and the industry voicing their opinion on the proposed transaction. This figure is in addition to any responses to requests for information issued by the Bureau’s case team.
12. The Commissioner produced the majority of the submissions received by the Information Centre, approximately 7,556 documents, to Rogers Communications Inc. (“Rogers”), Shaw Communications Inc. (“Shaw”), and Videotron Ltd. (“Videotron”) in the course of the present application under section 92 of the Act.
13. In conducting inquiries under the Act into previous mergers, the Bureau also received
Item
Witness Statement Reference
Statement
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Basis for Obje
submissions through various channels with respect to those mergers. However, the Proposed Transaction has generated a significantly greater response than any other merger reviewed by the Bureau since at least 2016. The Bureau has received to-date approximately 4.16 times more submissions regarding the Proposed Transaction than the merger with the second highest number of submissions.
14. The number of total submissions received by the Bureau with respect to mergers within the past six years are set out in the table below. The totals seen in the table come from submissions received through the Merger Feedback Form and other forms located on the Bureau’s website, including the complaint and question forms. We track trends either by doing a search in BIMS or by creating a folder collecting request and submissions related to specific cases. Only the top five mergers by total number of submissions are shown.
[Page 4, Chart of Number of Submissions]
Nazim Benhadid 21. Nazim Benhadid
Page 3; Para. 5
5. A network is only as fast as its slowest link. This This paragraph is why TELUS’ wireline fibre infrastructure is an opinion eviden integral part of the wireless network performance and reliability. Without a fibre network, TELUS would have to either duplicate fibre infrastructure A lay witness c at additional cost or lease it from other carriers. beyond their ow Leasing fibre backhaul facilities reduces TELUS’ businesses.
Item
Witness Statement Reference
Statement
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Basis for Obje
ability to control their performance (including speed, latency, jitter, capacity and upgrades to Mr. Benhadid, equipment), routings, and timely maintenance of not in a positio critical facilities. Owning facilities (as opposed to performance o leasing them) allows TELUS to build redundancies telecommunica and other reliability features into the architecture experiences th of the network and to respond more quickly to to provide to cu incidents and outages through consistent and timely traffic monitoring. For example:
a) Containing disruptions from outages: Operators that own their own facilities are able, in their sole discretion, to determine the number of cell sites that share a connection to the core networks, in accordance with their own risk tolerances. By controlling the number of cell sites that share a connection, and how such a connection is shared, an operator is able to contain the impact of outages or network failures. The greater the number of cell sites that share a connection, the greater the effects will be in the event there is an outage affecting that connection. Accordingly, the experience that an operator that leases fibre backhaul is able to provide its downstream customers in terms of reliability may be substantially different, and in any event will be largely out of its control, instead resting in the hands of the operator from whom they lease the facilities.
b) Reducing risk of outages: TELUS ensures that certain key cell sites have two independent connections to the cores and have back-up
Item
Witness Statement Reference
Statement
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Basis for Obje
generators, to ensure optimum performance and reliability. We are thus able to protect against a substantial outage by building two connections that are physically separate from each other, so that if one connection goes down, the other can still carry the traffic. Other wireline carriers upon whom operators that lease fibre will be dependent may not have a similar network design.
c) Adapting to sudden spikes in demand: When TELUS anticipates increased network traffic in an area where it owns the facilities (for example, the Calgary Stampede) and there is insufficient backhaul capacity for that traffic, TELUS can readily upgrade capacity within . In comparison, where TELUS leases backhaul, we must request an upgrade from the provider and such an upgrade can take up to one week or longer to implement. Where such events can be forecasted at the time the wholesale contract is entered into, it may be possible for the lessee to negotiate established timeframes for responding to such requests. However, in TELUS’ experience this is not done, and in any event, many such events – such as natural disasters, sporting events or protests – cannot be forecast accurately.
d) Rectifying performance anomalies quicker: Where TELUS owns its own network, it can address performance anomalies in voice and/or data quality substantially more quickly by having end to end visibility into all the elements traversed
Item
Witness Statement Reference
Statement
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Basis for Obje
by that traffic than could be addressed by a lessee who would need to persuade its wholesale provider to investigate and resolve the performance issues.
22.
Nazim Benhadid
Sameer Dhamani 23. Sameer Dhamani (September 2022)
Page 4; Para. 7
Page 4; Para. 15
7. In my experience, competition between network This paragraph operators leads to substantial network opinion eviden investments to improve the speed, reliability and performance of wireless (and wireline) services that would not otherwise be made. This is an A lay witness c important reason why TELUS decided to build the beyond their ow vast majority of its own fibre backhaul to serve our businesses. wireless operations outside of our traditional wireline serving area, for example, in Montreal. Mr. Benhadid, not in a positio competition be and what such Nor is he in a p speculate on th other network o
15. In addition, Freedom’s commission structure This paragraph on Freedom Internet service is not a motivating opinion eviden factor for sales; the commissions are very modest, in comparison to the significant headaches involved with selling the product. Freedom Home A lay witness c Internet is no antidote to Shaw’s unfair beyond their ow competition on mobile plans. businesses.
Item
Witness Statement Reference
Statement
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Basis for Obje
Mr. Dhamani, a Freedom, is no alleged “unfair what constitute “unfair compet
24.
Sameer Dhamani (March 2022)
Stephanie Assad 25. Stephanie Assad
Page 8; Para. 9
Pages 2-3; Paras. 5-10
9. In Alberta, Shaw has been undercutting the This paragraph Freedom brand with superior Shaw offers. We opinion eviden consider Shaw to be leveraging unfair advantages over Freedom dealers. Shaw negotiates our agreements and are not required to provide A lay witness c disclosure. At the same time, Freedom dealers are beyond their ow required to provide Shaw with operational data. businesses. Shaw has leveraged this information to support the Shaw Mobile brand and have been porting Mr. Dhamani, a customers from Freedom to Shaw Mobile. For Freedom, is no example, every Monday all Alberta dealers are alleged “unfair required to submit weekly activation/upgrade supposedly be reports which includes competitive offerings, described as “Market trends.” This information is passed on to Freedom managers, and in turn, Shaw. Shaw has access to all of this data, while Freedom dealers do not.
5. On September 28, 2021, the Bureau case team These paragra issued a public request for information (the “RFI”) hearsay eviden to help gather facts about the Proposed Transaction. I was one of the Bureau officers responsible for the drafting of the RFI. At the time The witness m of the issuance of the RFI, the Bureau was attaches “subm
Item
Witness Statement Reference
Statement
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Basis for Obje
investigating whether the Proposed Transaction is individuals who likely to result in a substantial lessening or proceeding, an prevention of competition for mobile wireless, replete with ina wireline internet, and broadcasting services. evidence, preju Attached as Exhibit “A” is a copy of the RFI. unsubstantiate Attached as Exhibit “B” is a press release about the RFI issued by the Bureau on the same date. This inadmissib tendered to es 6. The RFI invited market participants and submissions w Canadians to submit information to assist the the RFI. Rathe Bureau with its review of the Proposed truth of the con Transaction. One purpose of the RFI was to seek a comprehensive set of perspectives on the impacts of the Proposed Transaction, including Neither the fac those of consumers of mobile wireless, wireline nor the receipt internet, and broadcasting services. The RFI submissions re allowed the Bureau to learn about the impacts of any issue raise the Proposed Transaction from everyday extent that they Canadians who rely on these services without (and they do n requiring the Bureau to directly reach out to outweighed ov individual consumers. prejudicial effe the evidence is
7. The Bureau requested that all those with information relevant to the topics described in the RFI to provide submissions through a web-form on the Bureau’s website located at the following address: https://www.competitionbureau.gc.ca/eic/site/cbbc.
nsf/frm-eng/MBED-C47KMR. Submissions made through the web-form were automatically sent to an e-mail inbox monitored by the Bureau. These e-mails were then electronically preserved and
Item
Witness Statement Reference
Statement
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Basis for Obje
uploaded to Nuix Discover. Officers on the Bureau’s case team would then review the submissions.
8. The Bureau imposed a deadline of October 29, 2021 for responses to the RFI. As of October 29, 2021, the Bureau received 315 submissions in response to the RFI, copies of which are included under separate cover as Exhibit “C”. These submissions were received from self-identified residential customers, business customers, wholesale customers, competitors, and industry and/or economic experts. However, the majority (286 submissions) were from self-identified residential customers.
9. I reviewed all 315 submissions received by the Bureau in response to the RFI. 244 of the submissions express a critical view of the Proposed Transaction. 10 of the submissions express a favourable view of the Proposed Transaction. 61 of the submissions do not express a either a critical or favourable view of the Proposed Transaction.
10. In particular, 292 submissions in response to the RFI were marked by the respondents as relating to wireless services. Out of those, 239 of the submissions express a critical view of the Proposed Transaction; and 53 express a favourable view.
Item
Witness Statement Reference
Stephen Howe 26. Stephen Howe
Page 3; Para. 8
Statement
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Basis for Obje
8. Fibre backhaul plays a critical role both in This paragraph expanding the capacity, performance, and opinion eviden reliability of a wireless network to serve customers and in realizing the benefits of 5G. Our website emphasizes the importance of our fibre network to A lay witness c our 5G deployment: beyond their ow businesses. [Page 4, Screenshot from Bell’s website]
Mr. Howe’s exe does not entitle on the role play respect to the n carriers.
27.
Stephen Howe
Pages 4-5; Para. 10 10. The locations in which each of Bell and Telus have deployed Radio Access Networks in connection with the network reciprocity arrangements overlap to a large degree – but not entirely – with our respective wireline network footprints. Accordingly, in most areas in Alberta / British Columbia, where Telus operates an extensive residential wireline network, Telus has deployed a RAN and Bell has not, while in most areas in Ontario / Quebec / Atlantic Canada, where Bell operates an extensive residential wireline network, Bell has deployed a RAN and Telus has not. This is because there are significant advantages to deploying a wireless network within your wireline network footprint. While our experience demonstrates that it is possible for an established national wireless
This paragraph opinion eviden
A lay witness c beyond their ow businesses.
Mr. Howe’s exe does not entitle on the alleged that Shaw Mob wireless carrie by deploying a their wireline fo
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Witness Statement Reference
Statement
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Basis for Obje
operator to successfully deploy a wireless network outside an existing wireline network footprint, deploying in an area where we have such a footprint provides us with significant opportunities to reduce costs, reduce deployment timelines, and increase innovation. The same would be true for other companies, including Shaw (Shaw Mobile and Freedom), deploying a wireless network within their traditional wireline footprint.
Sudeep Verma 28. Sudeep Verma (September 2022)
Page 2; Para. 8
8. These initiatives also forced incumbent telecom This paragraph companies to compete to follow some of opinion eviden Freedom’s revolutionary ideas and strategies.
A lay witness c beyond their ow businesses.
Mr. Verma, as Freedom, is no speculate on th initiatives on ot companies, or generally.
29.
Sudeep Verma (September 2022)
Page 3; Para. 12
12. Contrary to prior years, in which Freedom was This paragraph a market-leader with aggressive and prominent opinion eviden campaigns, Freedom’s back-to-school promotions this year were uninteresting and very similar to offerings from other cell phone providers. There
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Witness Statement Reference
Statement
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were simply no aggressive promotions by Freedom to distinguish itself from other brands.
Basis for Obje
A lay witness c beyond their ow businesses.
Mr. Verma, as Freedom, is no speculate on w promotions we generally on th offerings offere in the market.
30.
31.
Sudeep Verma (September 2022)
Sudeep Verma (September 2022)
Page 3; Paras. 13- 14
Page 3; Para. 15
13. Although I do not have access to Freedom This paragraph data to know how much it spends on advertising opinion eviden and brand visibility, I, as well as many other F- Branded Association dealers perceive a dramatic reduction in Freedom's recent advertising efforts. A lay witness c beyond their ow businesses. 14. Unlike in the past, there are no transit ads, few (if any) highway billboards, and not many television or radio ads. Instead, it would appear Mr. Verma, as that Freedom has downloaded the advertising Freedom, is no effort on dealers to use their own co-op dollars for speculate on th brand awareness. advertising spe
15. Freedom is engaging in limited social media This paragraph ads and other branding activity in conjunction with opinion eviden the back-to-school period, but the messaging evidence. involves unclear messaging on emojis and workouts, which create little brand recall and has not helped in driving traffic to stores. Dealers have seen dwindling customer engagement on social
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Witness Statement Reference
Statement
PUBLIC -27-
Basis for Obje
media posts. The few comments are seen usually A lay witness c involve excoriating complaints against Freedom. beyond their ow Overall, national marketing by Freedom has been businesses. curtailed to a large extent.
Mr. Verma, as Freedom, is no the nature or e advertising, or engagement o by other (unide
Moreover, this into evidence “ allegedly made Mr. Verma did complaints to h the Commissio the individuals those complain proceeding. Th therefore depri cross-examine statements are Admitting this e procedurally un would impede the Tribunal.
In addition, evi complaints ma media or elsew individuals has
Item
Witness Statement Reference
Statement
PUBLIC -28-
Basis for Obje
raised in this p evidence has a does not), that outweighed ov prejudicial effe the evidence is
32.
33.
Sudeep Verma (February 2022)
Sudeep Verma (February 2022)
Page 9; Paras. 10- 11
Page 10; Para. 14
10. Based on market research by the F-Branded This paragraph Association and our knowledge of the instore hearsay eviden experience, the primary customer segments that rely on Freedom retail services are mid-to-low income earners, new Canadians, visible These paragra minorities, students and seniors. Freedom’s cus Branded Assoc 11. Based on data from our customer postal author of the a codes and StatsCan, our customers live in areas analysis has no with mid-to-low average incomes, with high Commissioner concentrations of new Canadians and high proceeding. Th concentrations of visible minority populations. therefore depri Attached as Exhibit “A” to this affidavit is an cross-examine analysis prepared by the F-Branded Association, the analysis th which compares the postal codes of its customers Admitting this e in the GTA area and compares those postal codes procedurally un to information from the City of Toronto as to would impede average family income, concentration of new the Tribunal. immigrants, and concentration of visible minority population.
14. Attached as Exhibit “D” to this affidavit is an analysis prepared by the F-Branded Association to show the percentage of prepaid customers, versus postpaid. Based on this sales data, prepaid users make up 43.1% of F-Branded Association
This paragraph hearsay eviden
Item
34.
Witness Statement Reference
Sudeep Verma (February 2022)
Page 11; Para. 18
Statement
PUBLIC -29-
customers, a rate which has steadily increased since 2018 when they made up 22.9% of our customers. In my experience, prepaid plans are attractive for financial reasons and because customers may not qualify for post-paid, for example, due to poor credit ratings, and for customers with low phone usage requirements, such as seniors. The source of this data in the analysis is actual sales recorded in the point-of- sale software at the store level and an average across the membership of the association.
Basis for Obje
This paragraph Freedom’s cus Branded Assoc
Mr. Verma is n The author of t called by the C this proceeding therefore depri cross-examine the analysis th Admitting this e procedurally un would impede the Tribunal.
18. Wind/Freedom is a pioneer in industry-leading This paragraph reforms, which the incumbents ultimately opinion eviden matched, helping Canadian consumers. Some examples of these disruptions include: (a) unbundling device pricing from rate plans, which A lay witness c meant customers did not have to continue paying beyond their ow for their hardware once devices were paid off (in a businesses. two-year term), and (b) introducing “Big Gig data” on rate plans, which meant consumers had Mr. Verma, as abundant data as compared to incumbents who Freedom, is no did not offer these plans, but which ultimately speculate on th forced incumbents to follow suit. A summary of initiatives on ot some of Freedom’s pioneering competitive companies and initiatives is described below. generally.
Item
35.
Witness Statement Reference
Sudeep Verma (February 2022)
Page 12; Para. 24
Statement
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24. Throughout our history as Freedom dealers, we have strived to make Freedom the most attractive choice for customers moving over from the “big 3” incumbent providers. Attached as Exhibit “J” to this affidavit is a chart from the F- Branded Association, which reflects that 61% of total Freedom activations are port-ins from Rogers, Fido and Chatr. The source for this data is a member dealer operating more than 10 locations in the GTA and who has been tracking port-in at the store level via the point-of-sale software. There has been a conscious effort on part of Freedom to position itself as an alternative to the “Big Three”. Attached as Exhibit “K” to this affidavit is a “Freedom Mobile Competitor Comparison” document prepared by Freedom.
Basis for Obje
This paragraph hearsay eviden
This paragraph Freedom’s cus Branded Assoc
Mr. Verma is n The author of t called by the C this proceeding therefore depri cross-examine the analysis th Admitting this e procedurally un would impede the Tribunal.