Case Documents

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ignoring the repeated, clear, and conspicuous disclosures that accompanied Rogers’ promotion of its plans.

6. These disclosures unambiguously told consumers that they would have high-speed data up to a certain amount based on the plan they chose, with unlimited data at reduced speeds thereafter. This was made clear in Rogers’ advertising, on its website, in the description of its wireless plans, and in the plan summaries provided to customers at the time of purchase.

7. Rogers at all times complied with the legal and regulatory requirements to market wireless plans as having unlimited data. In 2013, six years before Rogers launched its Infinite Plans, the CRTC—which regulates the wireless industry in the public interest—specifically addressed the marketing of unlimited wireless plans. The CRTC’s mandatory Wireless Code allows carriers to describe wireless plans as offering unlimited data, so long as they disclose any restrictions on the speed or quality of that data. This is precisely what Rogers does.

8. Rogers fully complied with these requirements in designing, launching, and marketing its Infinite plans. In the more than five years since their launch, the CRTC has never taken action against Infinite plans, nor, as far as Rogers is aware, against any other carrier’s unlimited plans.

9. With the larger data buckets that Rogers introduced as part of its Infinite plans, only a small percentage of customers exceeded their high-speed data buckets and experienced reduced speeds, and that percentage has steadily declined over the last five years as data buckets have grown larger and larger. As a result, the vast majority of Infinite customers experience unlimited high-speed data.

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10. Rogers opposes the Commissioner’s Application, denies all of the allegations set out in his Notice of Application, and asks that the relief he seeks be denied in its entirety, with costs payable to Rogers.

B. Rogers Launches “Infinite” Plans in 2019 11. Rogers launched its new Infinite plans in June of 2019. Prior to this, carriers sold plans with a set monthly allocation of data, known as a “data bucket”. If customers exceeded their bucket before the end of the month, they were either automatically charged overage fees or cut off from access to data entirely.

12. This had been a significant source of consumer complaints. Consumers wanted certainty over the amount they would pay each month, and to be able to use their phones without fear of going over their data allocation or being cut off.

13. Rogers’ Infinite plans addressed these concerns. They offered customers significantly larger “max speed” data buckets and eliminated overage fees entirely. Even after customers exceeded their data bucket for the month, they could continue to use unlimited data at a reduced speed with no additional cost. If customers chose, they could purchase additional high-speed data with a “Speed Pass”, for which customers were never automatically charged.

14. Infinite plans were developed for and marketed to sophisticated, high-use wireless data consumers. These were the customers who most often exceeded their monthly data allowance and most often incurred overage charges as a result. They wanted larger data buckets, control over their spending, and to use their data without having to worry about exceeding their monthly allowance and paying data overages. Rogers’ Infinite plans delivered these benefits.

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15. Promotional materials at and following the launch of Infinite plans emphasize the elimination of overage fees and clearly disclose the amount of high-speed data provided for the advertised price (see, e.g., Figure 1, Figure 2, and Figure 3 below).

Figure 1: Facebook Advertisement from July 2019

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Figure 2: Social Media Advertisements from May 2020

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Figure 3: Examples of Infinite Advertisements (January-April 2022)

16. Customers are offered different amounts of high-speed data at different prices and choose the plan that best fits their needs. Plans with smaller high-speed data buckets cost less, and plans with larger high-speed data buckets cost more. The bucket sizes and plan prices are prominently displayed both on Rogers’ website and in store (see Figure 4 for the online plan tiles).

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Figure 4: Screenshot from Rogers Mobility Website at Launch

17. Rogers clearly and conspicuously disclosed to every customer who was considering purchasing an Infinite plan that they would receive a certain amount of high-speed data—as chosen by them—and would have “unlimited data at reduced speeds thereafter”. This same disclosure is repeated multiple times during the purchasing process.

18. At the time of launch in 2019, the smallest Infinite high-speed data bucket was 10GB— more than three times the monthly usage of an average wireless data subscriber at the time. Rogers also offered 20GB and 50GB plans for customers seeking even larger high-speed data buckets. Since then, data buckets have steadily grown in size while the cost of plans has come down dramatically. The smallest Infinite plan now offers 100GB of data and the cost per gigabyte has decreased significantly.

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19. The Bureau asserts that Infinite plans were designed to increase revenues from the sale of additional data. In fact, the opposite is true and Rogers knew from the outset that these revenues would drop significantly. Rogers nevertheless introduced Infinite plans to address consumer frustrations with overage fees. In the third quarter of 2019—the first full quarter following the introduction of Infinite plans—revenues from overage fees fell by over $50 million compared to the same quarter in 2018 and have significantly decreased since.

20. The Bureau’s repeated allegations that Rogers introduced Infinite plans as a way to drive increased consumer spending on data is false. It was not Rogers’ intention and it was not the result, as is plainly evident. Rogers introduced these plans to address significant consumer concerns, not because they would increase Rogers’ data revenues.

21. Shortly after launch, the Competition Bureau acknowledged the positive impact that unlimited data plans had on wireless data plan prices and consumer choice more generally. In submissions to the CRTC, the Bureau noted that “the launch of ‘unlimited plans’ arguably amounted to a decrease of approximately 25% in the Big 3’s plan prices in most markets … as compared with previous equivalent plans”.

22. Rogers’ introduction of its no-overage-fee Infinite plans spurred other major carriers to do the same, leading to a significant pro-consumer shift in the wireless industry. Over the past five years, Bell, Telus, SaskTel, and other carriers have offered plans with no overage fees, large high-speed data buckets, and unlimited usage at reduced speeds thereafter. They have also marketed these unlimited data plans in substantially the same way as Rogers on their websites and in promotional materials (see, for example, Figure 5 and Figure 6).

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Figure 5: Bell Facebook Ad, 2019

Figure 6: Screenshots from Telus Digital Ad, December 3, 2022

23. The ubiquitous presence of these plans in the market over the last five years, together with carriers’ consistent marketing of them, are important context for the Bureau’s allegations. The messaging from other carriers reinforces Rogers’ own messaging and thus informs how the ordinary consumer would understand these plans, the features they offer, and their limits on high-speed data usage.

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C. Competition Bureau Pursues Rogers Years After Infinite Launch 24. In the four years following Rogers’ launch of its Infinite plans and the industry’s widespread adoption of “unlimited” data offerings, the Bureau never took enforcement action related to the promotion of these plans. It issued no guidance, sent no warning letters, and commenced no enforcement proceedings against Rogers or against any other carrier. Similarly, the CRTC has not taken any action against any carrier, under the Wireless Code or otherwise.

25. According to materials the Commissioner filed in the Federal Court in connection with its investigation of Rogers, the Competition Bureau began reviewing representations from Canadian wireless providers in September 2021, “to assess whether wireless products were being marketed as ‘unlimited’ when usage was restricted, limited, or qualified in some way”. The Bureau did not advise Rogers of its investigation at that time.

26. In March 2022, the Competition Bureau opened an investigation into Rogers regarding the promotion of its Infinite plans. Again, the Bureau did not notify Rogers of this investigation. On April 6, 2023, three days after Rogers closed its acquisition of Shaw Communications, the Commissioner opened an inquiry, only into Rogers, under s. 10(1)(b)(ii) of the Competition Act. The Bureau first notified Rogers of the inquiry by letter dated June 2, 2023, two months after opening the inquiry, more than a year after it commenced its investigation, and four years after the launch of Rogers’ Infinite plans.

27. The Bureau’s significant delay in opening its inquiry—four years following Rogers’ introduction of Infinite plans—has materially prejudiced Rogers’ ability to answer the Bureau’s case. Since Rogers only became aware of the Bureau’s investigation in June 2023, Rogers had no reason to preserve documents relevant to its defence going back to 2019. Rogers’ marketing of

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its Infinite plans, and the key features of those plans, have been clear and conspicuous since their launch in 2019. This unexplained delay also casts doubt on the harm the Bureau is alleging and the merits of the Commissioner’s Application.

28. The Bureau has improperly and unfairly singled out Rogers in this Application for longstanding representations that have been industry-wide for years. No other carrier has been subject to enforcement action for its promotion of “unlimited” data plans over the past five years, despite having made substantially identical representations to those at issue in this Application.

29. The Bureau’s use of its significant enforcement powers to selectively target Rogers and not to address its concerns on an industry-wide basis creates the unfair and harmful impression that it is only Rogers whose practices are at issue. It subjects Rogers to reputational damage, and unfairly tilts the competitive landscape to the material prejudice of Rogers and material advantage of its competitors.

D. Rogers’ Infinite Representations are Neither False nor Misleading 30. The Bureau’s allegations rest on an incomplete, highly curated, and materially misleading selection of materials. They present a distorted view of the representations Rogers made to consumers and misstate the general impression such representations are likely to create.

31. Viewed from the perspective of the ordinary consumer of unlimited wireless data services, Rogers’ representations convey the general impression that Infinite plans give customers (i) a monthly high-speed data bucket of their choosing, and (ii) access to unlimited amounts of data at reduced speeds if they exceed that bucket, with no overage fees. This is the general impression based on Rogers’ promotional materials and multiple disclosures throughout the purchasing process.

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32. The Bureau relies on selective marketing materials, taken in isolation and divorced from the broader context in which they were made and understood in the market. The Bureau focuses on “brand” marketing and ignores ads promoting specific plans and prices, such as those in Figures 1, 2, and 3, above. The Bureau also ignores the repeated, clear, and conspicuous disclosures made during the purchasing process, discussed in more detail below.

33. None of the representations excerpted at paragraphs 14-19 of the Commissioner’s Notice of Application fairly provide a sense of the general impression conveyed by Rogers’ Infinite representations, either as a whole or individually. The ordinary consumer does not experience individual billboards, excerpts from social media posts, and still-frames from YouTube advertisements in a vacuum, without the benefit of the additional information provided as part of the full context of the Infinite representations and during the purchasing process, or without regard to the broader market context in which Rogers’ Infinite plans were launched.

34. Nor is the general impression conveyed by Rogers’ representations materially impacted by the brand name “Infinite” or the “infinity loop”. Ordinary consumers do not view this branding as exhaustively describing plan features, which are identified and explained clearly in promotional materials and during the purchasing process. Other businesses have used similar branding, both in the telecommunications and other markets. For example, Bell has used the “infinity loop” to promote its version of unlimited plans (see Figure 5 above), and Visa has used the “Infinite” brand for its premium credit card—all without any apparent issue from the Bureau.

35. Ordinary consumers of Infinite plans are highly knowledgeable about wireless services. They know that plans always come with different features and a variety of terms and conditions, beyond those disclosed on billboards or space constrained advertisements. They would not view

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isolated representations as intending to reflect or describe all the features of any specific plan. That information is prominently and repeatedly disclosed to consumers during the purchasing process, as discussed below.

36. Taking, as it must do, the perspective of the ordinary consumer of unlimited data plans, the Bureau cannot meet its burden to establish that Rogers’ representations were false or misleading. Nor can the Bureau meet its burden to show that the isolated, incomplete examples it has chosen were material to the ordinary consumer’s purchasing decision.

E. Rogers Clearly and Conspicuously Disclosed Plan Features 37. The general impression conveyed by Rogers’ promotional representations is reinforced by clear, conspicuous, and repeated disclosures throughout the purchasing process. It is impossible for any consumer to purchase an Infinite plan without:

(a)

(b)

(c)

Learning that different plans offer different amounts of high-speed data at different prices;

Learning that they will have access to unlimited data at reduced speeds thereafter, with no overage fees; and

Choosing the amount of high-speed data that suits their needs.

38. Each of these points is reinforced multiple times throughout the purchasing process. And even after a purchase is made, customers are given the opportunity to cancel their service if they change their mind.

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39. For customers subscribing online, Rogers’ website prominently identifies, in bold font, the amount of high-speed data available with each plan. This is followed by clear disclosure that there is “Unlimited data at reduced speeds thereafter” (see, e.g., Figure 7).

Figure 7: Screenshot from Rogers Website, taken February 5, 2025

40. Once customers select the red “Get plan” button at the bottom of the plan tiles, they are brought to a web page titled “Build Your Plan”. They are presented with the different plans available and choose the one that best suits their needs. Each option discloses the amount of high-speed data available per month, and again states “Unlimited data usage at reduced speeds beyond [the bucket size selected]” (see Figure 8).

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Figure 8: Screenshot from Rogers’ “Build Your Plan” Page, taken February 5, 2025

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41. If a customer wishes to know more about the reduced speed after they exceed their monthly bucket, both the asterisk on the initial plan page (Figure 7) and the “See Full Details” drop-down on the second page (Figure 8), lead to a more detailed description that explains: (i) that they have a bucket of data at high-speed; (ii) that they will have access to unlimited data at a reduced speed of 512kbps thereafter with no overage fees; and (iii) that applications such as email and web browsing will continue to function, but the reduced speed “will likely impact your experience” (see Figure 9).

Figure 9: Screenshot from “Full Details” page on Rogers Website, taken February 5, 2025

42. Once a customer selects their high-speed data bucket size, they are prompted to review their order and given a copy of their Wireless Service Agreement, which again sets out how much high-speed data their plan offers each month, with “unlimited data at reduced speeds thereafter” (Figure 10).

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Figure 10: Excerpt from an Infinite customer’s Wireless Services Agreement

43. Customers are required to confirm acceptance of their Wireless Service Agreement by clicking a checkbox at the time of purchase. Once the transaction is complete, Rogers sends them a copy of their Wireless Service Agreement, along with a “Critical Information Summary”. The Critical Information Summary describes key plan features in plain terms, highlighting the size of the data bucket the customer has chosen and reiterating the disclosure that data speed will be reduced beyond that bucket (Figure 11).

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Figure 11: Excerpt from an Infinite customer’s Critical Information Summary

44. Both the Wireless Service Agreement and the Critical Information Summary direct customers to Rogers’ “Data Policy” (available at rogers.com/terms and excerpted in Figure 12)

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for additional details on high-speed data allocations and speed reductions. This Policy again provides the information available to consumers during the purchase process under “See full details”.

Figure 12: Excerpt from Rogers’ Mobile Plans Data Policy, available at rogers.com/terms, taken January 12, 2025

45. While the appearance and layout of Rogers’ website has evolved since Infinite plans were launched in June 2019, the online purchase process has always clearly disclosed to prospective customers: (i) the amount of high-speed data available with each plan; and (ii) that unlimited data is available “at reduced speeds thereafter”.

46. Rogers makes the same disclosure to prospective Infinite customers subscribing in-store or by phone. Training materials provided to customer service representatives and partner retailers at the time of launch identified the key features of Infinite plans, which were to be communicated to consumers. These materials explain that Infinite plans include unlimited data with no overage charges, with a bucket of data at “max speeds” and access above that data allotment at reduced speeds.

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47. Customers purchasing their Infinite plan in-store or by telephone are also provided their Wireless Service Agreements and Critical Information Summaries (referenced above). And if customers are dissatisfied with the terms of their plan after reviewing these documents, they can cancel their services without penalty. Those who purchased an Infinite plan without a device can cancel their services at any time. Those who purchased an Infinite plan with a device can cancel their services within fifteen days provided they return their device.

48. Whether online, in store, or over the phone, Rogers clearly, conspicuously, and repeatedly discloses the key features of its Infinite plans. Every subscriber to an Infinite plan necessarily understands that different plans have different amounts of high-speed data. They are told repeatedly and in plain language that they will have access to unlimited data at reduced speeds if they go over their high-speed bucket. And they are presented with different plans at different price points so they can choose the amount of high-speed data that best suits their needs.

49. The ordinary consumer of Infinite plans understands these choices are not meaningless. They understand that they can choose to pay a lower amount for a smaller bucket or a higher amount for a larger bucket. They understand they will enjoy unlimited usage at reduced speeds thereafter, without paying overage fees. The Bureau’s suggestion that consumers have the general impression that every plan entitles them to unlimited high-speed data is impossible to reconcile with the purchasing process and the clear and repeated disclosures made throughout.

F. Large Buckets Mean Customers Effectively Have Unlimited High-Speed Data 50. Even if the Bureau’s position regarding general impression is correct, which Rogers denies, the overwhelming majority of Infinite customers have access to high-speed data in such

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significant quantities that it is effectively unlimited for their purposes. That is, the vast majority of Infinite customers never exceed their monthly high-speed data buckets, and therefore never experience speed reductions at all.

51. Consistent with the relative increase in the size of Infinite high-speed data buckets, the average utilization of high-speed data was never close to the average bucket size, and consistently declined since Infinite plans were launched in 2019. Since launch, only a small percentage of Infinite plan customers exceed their high-speed mobile data bucket each month. Of the limited number of Infinite customers each month who exceed their high-speed data bucket, the vast majority continue to use mobile data at reduced speeds without purchasing a Speed Pass.