:
Ladies and gentlemen, colleagues, I call this meeting to order.
Welcome to meeting number 52 of the House of Commons Standing Committee on Industry and Technology.
Pursuant to Standing Order 108(2) and the motion adopted by the committee on Wednesday, January 26, 2022, the committee is meeting to study the proposed acquisition of Shaw by Rogers.
Today's meeting is taking place in a hybrid format, pursuant to the House Order of Thursday, June 23, 2022.
Members attending remotely can participate using the “raise hand” function. For those in Ottawa, it's a pleasure to see them again at the beginning of the year.
In this first hour of the meeting, joining us from the Competition Bureau, we have Jeanne Pratt, senior deputy commissioner of the Mergers and Monopolistic Practices Branch, and Anthony Durocher, deputy commissioner of the Competition Promotion Branch. From the Department of Industry, we have Éric Dagenais, assistant deputy minister of Spectrum, Information Technologies and Telecommunications, and Mark Schaan, senior assistant deputy minister of Strategy and Innovation Policy Sector.
I'd like to thank all four of you for being with us in person.
Without further ado, I'll give the floor to Jeanne Pratt of the Competition Bureau for five minutes.
:
Good morning, Mr. Chair and members of the committee.
My name is Jeanne Pratt, and I am the senior deputy commissioner of the Mergers and Monopolistic Practices Branch. With me today is my colleague, Anthony Durocher, who is the deputy commissioner of the Competition Promotion Branch.
The role and mandate of the commissioner of competition are clear. The commissioner administers and monitors the Competition Act for the benefit of all Canadians.
Protecting competition is essential to serving the interests of Canadian businesses and consumers, and to preserving our overall economic performance.
The merger provisions of the Competition Act are the first line of defence against the accumulation of market power.
[English]
Regarding Rogers and Shaw, the bureau conducted a comprehensive review of the evidence during our investigation. This included over 100 meetings with stakeholders and the collection and review of over three million records, as well as 7,800 submissions from the public.
On May 9, 2022, the commissioner filed an application with the Competition Tribunal under section 92 of the Competition Act, seeking to block the proposed merger. This action was taken because our position was that the transaction would likely harm millions of Canadians in Alberta and British Columbia through higher prices, lower-quality services and lost innovation.
At the tribunal, we argued that Shaw is a growing competitive force in Canada. When the proposed acquisition was announced, Shaw was poised to continue as an unmatched, disruptive force. The Competition Tribunal agreed with the commissioner that Shaw was about to launch 5G wireless services and expand their wireless services into new areas, reaching more Canadians. These plans were shelved with the announcement of the proposed Rogers-Shaw merger in March 2021.
On August 12, 2022, Rogers, Shaw, Videotron and Quebecor announced that they had entered into an agreement for the sale of Freedom Mobile. We took the position that the sale of Freedom to Videotron did not sufficiently address the anti-competitive effects of the merger. Videotron itself was not our concern. Rather, even with the divestiture, Videotron would not have the assets needed to compete as effectively as Shaw. Due to several long-term agreements, rather than having ownership and control over critical assets, Videotron would be reliant on their competitor, Rogers. This would reduce Videotron's incentive and ability to compete, and create avenues for Rogers to undermine the new Freedom's competitiveness.
On December 29, 2022, the Competition Tribunal dismissed our application. Yesterday, the Federal Court of Appeal dismissed our appeal. We stand by the findings of our investigation and our decision to challenge the merger. We brought a strong, responsible case to the tribunal after conducting an exhaustive investigation. We continue to disagree with the tribunal's findings and are very disappointed. That said, we accept the decision of the Federal Court of Appeal yesterday, and we will not be seeking leave to appeal to the Supreme Court of Canada.
I look forward to your questions.
Thank you.
:
Thank you for inviting me and my colleague here today.
I lead the sector responsible for the spectrum management program, which ISED administers on behalf of the . My colleague is responsible for ISED's strategic policy function, which includes stewarding the minister's role in both telecom and competition policy. You've just heard from our colleagues at the Competition Bureau.
I understand the strong interest at this committee in the transfer of licences between Shaw and Rogers, and then between Shaw and Videotron. While I can speak about the spectrum transfer process, I cannot speak to the ongoing review of the application to transfer Shaw's spectrum licences to Videotron. This matter is currently before the .
As I outlined in my appearance in April 2021, access to spectrum is vital to the provision of wireless services, and the power to issue spectrum licences, including reviewing and approving their transfer, is at the centre of the 's review of and his role in this proposed transaction. The minister regulates spectrum according to the powers granted in the Radiocommunication Act, with due regard to the Telecommunications Act, and in doing so he may take into account all matters he considers relevant to ensure the orderly development and efficient operations of wireless communications.
Given the importance of mobile connectivity and the significant investments associated with it, the manages spectrum according to an established set of guidelines and policies.
[Translation]
As such, commercial mobile spectrum transfers are guided by the Spectrum Licence Transfer Framework.
This framework supports the government's objective to maximize the economic and social benefits that Canadians derive from the use of spectrum. It also helps ensure the efficiency, and competitiveness of the telecommunications industry and the availability and quality of services.
In reviewing transfer requests, Innovation, Science and Economic Development Canada, or ISED, analyzes, among other factors, the change in spectrum concentration levels that would result from the licence transfer.
ISED also analyzes the ability of the applicants and other existing and future competitors to provide services. We may also take into account other factors, including current licence holdings of the applicants, overall distribution of licence holdings, services to be provided and the technologies available, availability of alternative spectrum, characteristics of the region—including urban/rural status, population levels and density—or other factors that impact spectrum capacity or congestion, and any other factors relevant to the policy objective that may arise from the licence transfer.
As stated in the framework, the application and supporting materials are treated confidentially. That said, I can confirm that the original Shaw-Rogers transfer application was refused by the minister. This information is on our website and is public. One of the reasons for the refusal is that it raised substantial concerns about spectrum concentration.
So the issue currently before the minister is an application to transfer spectrum from Shaw to Videotron. In short, the original application was denied, and now we're talking about a new application.
As confirmed yesterday, ISED will announce a decision on this transfer in due course.
Thank you. I'm happy to take questions.
:
We have a spectrum transfer framework. It's a document that was put out in either 2013 or 2014, pursuant to public consultations. It lists what the objectives of the transfer framework are, and it lists the criteria.
Essentially, you have eight specific factors that may be relevant in ISED's assessment. First is the current licence holdings of the applicant and their affiliates in the licensed area.
Second is the overall distribution of licence holdings and the licence spectrum band and commercial mobile spectrum band in that area.
Third is the current and/or prospective services to be provided and the technologies available.
Fourth is the availability of alternative spectrum that has similar properties, because not all spectra have the same properties.
Fifth is the relative utility and substitute ability of the licensed spectrum.
Sixth is the degree to which applicants and their affiliates have deployed networks and the capacity of those networks. This is whether the people to whom the spectrum is being transferred have the ability to use it and to serve Canadians.
Seventh is the characteristics of the region, including urban and rural status, population levels, etc., because you don't need as much spectrum if you're not serving as many people. The population density matters.
Eighth is any other factors relevant to the policy objective that may arise from the licence transfer or the prospective transfer.
The factors are set out in a regulatory framework that takes its cues from the Radiocommunication Act and the Telecommunications Act.
:
Mr. Chair, I would like to start by correcting one thing. According to what was reported in the media on January 13 by The Canadian Press, all parties in the Standing Committee on Industry and Technology agreed to convene this meeting to review the transaction. That's not true.
I think you'll agree that I was opposed to this. Indeed, I was deeply uncomfortable with the idea of holding this meeting today, particularly because of elements that were highlighted by the Competition Tribunal, in this case the Fox project. Furthermore, I get the impression that our committee is being used to serve the interests of lobbyists rather than the public, especially when I read this:
[English]
“Trial competition board review at the new committee, upcoming, shapes narrative.”
[Translation]
We are being used strategically by the Telus lobby, obviously in concert with Bell and other partners, and I feel very uncomfortable with that. I named these things in the subcommittee, and I wanted to put that on the record today.
Having said that, I think we still need to move forward and make a constructive contribution today. This is a transaction that we on the committee had studied in its first form and jointly rejected the first agreement. Furthermore, the Competition Tribunal issued a decision yesterday confirming our position. This suggests that our work is relevant.
In that context, the wireless part was a concern. The buyout by Quebecor made it possible to bring that other player, in this case a fourth player, into the Canadian market. I see that public policy on competition has allowed this acquisition to come to an acceptable outcome for Shaw, Rogers and Quebecor Media. I think that our recommendations have been heard and that the focus has been on accessibility and affordability from the outset. This has set the tone for the thinking and discussions that have taken place between different companies over the past few months.
We looked at the agreement between Shaw and Rogers, and I think the current agreement between Shaw, Rogers and Quebecor is much better for consumers.
For those who have been following this closely and have read yesterday's decision by the Competition Tribunal, paragraph 1 is very telling. There is a well-known saying in the competition law community that when competitors complain about a merger, it is often a good indication that the merger will promote competition. The documents that were produced revealed Telus' strategies through its Fox project.
The following question is for Ms. Pratt, deputy commissioner of the Competition Bureau.
Parliamentarians generally learned about the Fox project through the media on November 14. All the headlines were about an attempt by Telus to undermine the sale of Freedom Mobile to Videotron.
You, from the Competition Bureau, who were present at the hearings, what do you think about the Fox project, the players involved and their strategy? Is this the kind of competition you're willing to support?
:
Thank you, Mr. Chair, and thank you to the witnesses for being here.
First of all, I'd like to apologize to Mr. Lemire. It was my Canadian Press comment, and I forgot to separate the Bloc from that. I apologize to him. We've had conversations on that. I want it to be clear, because he is very capable of speaking for himself, as we've seen.
Going quickly to the matter at hand, Canada since 1993 has basically decided to deregulate our telco sector in many respects. We've had subsequent prime ministers and ministers of industry do a number of different ventures that have led us here today. The cast of characters is long and very bipartisan.
My first comment is for Mr. Dagenais.
I'd like to find out from you how you think this minister is going to get it right, given the fact that we have the situation we have right now. What makes it different at this moment? Going back to Mulroney, Chrétien, Martin, Trudeau, Harper, and then a whole series of industry ministers who I've met with and worked with over the years, ranging from Maxime Bernier to David Emerson, being a Conservative and a Liberal, we still have these policies that we have right now.
How do we fix it? What makes it different now from the path that got us here to this moment?
:
Welcome again, colleagues.
We'll now begin the second hour of testimony and questions.
In this second hour, we have appearing as an individual Jennifer Quaid, associate professor and vice-dean of research with the Civil Law Section of the Faculty of Law at the University of Ottawa. She is here, in Ottawa.
We also have with us Vass Bednar, executive director of the master of public policy in digital society program at McMaster University. She is joining us by videoconference.
We also have with us Keldon Bester, co-founder of the Canadian Anti-Monopoly Project, as well as Bryan Keating, executive vice-president of Compass Lexecon.
I'd like to thank all the witnesses for their participation.
Without further ado, Ms. Bednar, you have the floor for five minutes.
:
Good afternoon, esteemed members of the Standing Committee on Industry and Technology, my fellow witnesses and all members of the public who may be tuning in.
As you heard, my name is Vass Bednar. I'm the executive director of McMaster University's MPP in digital society program. I'm a fellow with the Public Policy Forum and a senior fellow at CIGI. I also write the newsletter “regs to riches”. While I'm neither a lawyer nor an economist, and I'm happy to defer to colleagues with richer expertise on more technical or legal questions, I am one of the voices that help broker a bigger picture in the context of competition for Canadians.
I wonder what I can offer you today regarding the now almost soap-operatic Rogers-Shaw merger that you don't already know. For the average person, this process has become more than muddled. We've seen social media chatter conflate the decision of the tribunal with the ambition of the bureau, but that's not insurmountable. That said, this is the largest merger in Canadian telecom history. It affects millions of Canadians and the essential services they receive.
One reflection I have that I think is worth sharing is with regard to the thousands of Canadians—we heard 7,800—who took time to make their voices heard in this process, albeit maybe somewhat misdirected at the tribunal. I wonder if this occurred because there was no formal mode for the public's view to be properly consulted as a complement to policy procedures. You could argue that the has a public duty to engage more fulsomely with Canadians regarding this merger and its dynamics, step by step, especially regarding expectations and accountabilities for when it moves forward. This has not quite been done. As a result, the people's appetite to engage on the question has not had an appropriate outlet.
To whom or to what should the people who wrote in, and who care to follow the ups and downs of this soap-operatic but very important and exciting merger, look for accountability? What mechanisms do they or we have to hold Rogers and Shaw and others to account for the claims they have made, or to hold Quebecor to account to deliver what they have promised or what people expect from a wireless carrier? Even the somewhat gratuitous promises that Videotron has notionally made are unenforceable. We heard that earlier as well. Furthermore, Videotron has made no promises, however weak, on protecting jobs, on rural or indigenous connectivity and on R and D investment. What does that mean for western Canada?
We have this opportunity in Canada, with an energized and engaged public that is legitimately interested in improving competition outcomes in Canada and understanding our history of corporate consolidation, and that is fed up—we know that—with what they pay for wireless and Internet services. Competition is a topic that's been the subject of countless CBC Radio segments, a Marketplace investigation, various opinion editorials from The Globe and Mail's editorial board, a Canadaland radio series and near endless memes.
Yes, people care deeply about the outcome of this proposed merger. If rates later grow or get jacked up, what is their recourse? Perhaps you've received letters asking you the same question.
At this time, I suppose I would encourage all parties to consider complementary policy interventions that can collide with the current consultation on the future of competition policy in Canada. Keep in mind that this is a very technical and abstract question for most people. Even simple interventions can be powerful here, such as labelling flanker brands, as they do in the U.S., to help people understand that context of competition. We need radical incrementalism for competition in Canada and an all-of-government approach, not one narrow window of opportunity in a politically delicate context as a consolation prize.
Some have called for more public competition in telecommunications moving forward. Perhaps we also need to look ahead to the benefits of a publicly owned cloud, or have a conversation about whether we will have or need a strong Canadian competitor in the low-earth orbit satellite space as Telesat teeters on the verge of bankruptcy. Perhaps matters that intersect with competition and telecommunications should also be considered by the CRTC. Why doesn't it have jurisdiction here except over broadcasting? Also, day-to-day competition law could be made more open.
Finally, of course this merger is a historic hinge for Canada to take competition more seriously and to be a better broker of these processes. I'm super glad we're talking about it today, even though it sort of feels like a post-mortem.
So what's next?
Thank you.
Honourable members of the committee, I'm pleased to be with you today. My name is Jennifer Quaid, and I am an associate professor and vice-dean of research of the Civil Law Section of the Faculty of Law at the University of Ottawa.
This isn't the first time I've appeared before the committee. I'm pleased to once again address issues related to competition law and our competition policy in the context of what has transpired in the evaluation of the Shaw/Rogers transaction.
I've read the decisions, which I have right here with me—it's a habit I've developed as a lawyer. I don't really intend to discuss the content of the decisions, unless you have specific questions, because the decision has been rendered.
I think one of the current discomforts is that there is the public perception and many people's perception—the Competition Bureau has also given its opinion—and we disagree with the assessment of the tribunal's evidence and the legal issues at the Federal Court of Appeal. However, in law, once the tribunal has ruled, what it has found becomes the truth. We may disagree with the tribunal's decision, but the tribunal explains very clearly and in detail why and how it reached its conclusions. We can disagree, but personally, I am much more interested in the future and how we should respond.
These are the elements I'll address today.
[English]
I'm going to make three points, and I will try to make them as briefly as possible. I know I have a reputation for being long-winded. That's the professor in me. I'm happy to talk about other things as well.
The first thing I want to talk about is what the context and what happened with Rogers-Shaw should make us think about in terms of the process of reviewing mergers in Canada. I'd like to explain that a bit.
Second, I think what happened in this case is a bit of a wake-up call in terms of what kind of decision-making body we need for competition. There's been long-standing discussion about whether we have the right model and whether the tribunal.... This is without taking anything away from the devoted and very serious work that the people who have been part of the tribunal have done. I'm taking nothing away from that. I think it's time to reconsider whether we have the right decision-making body.
Third, I think there is a serious question here—particularly in the context of Rogers-Shaw but not exclusively to that—when we have competition interacting with a regulated sphere, and we need to think about some coherence between these different arms of government. In this case, others who know far more about telecommunications than I do.... I am not a telecom expert and I will say that right now, although you're going to hear from one this afternoon: Ben Klass. There is concern that these two parts of the administration are not talking to each other. They're not working well. I think that should concern you.
Coming back to my first point, what does Rogers-Shaw mean for merger review? I'm not going to give you a 101 on merger review, unless you really want it. We have to understand that in Canada, we don't approve mergers, by and large. We have a process by which mergers are notified to the bureau through the pre-notification process if they are of a certain size or if the parties are of a certain size. There are some transactions that fall below that threshold.
Many transactions are notified to the bureau. Most of the time, the bureau will look at them and say, “We don't see any problems. You can proceed.” However, it's not an approval. They're saying, “We won't object.” Sometimes it gets a little sticky and we have to go a little further along in the process. Perhaps the bureau says, “You know what? We need more information.” They might issue what's called a supplementary information request, or an SIR. The idea there is that they need to understand more. That's often a signal that there are deeper concerns.
It's really important to remember this when we start talking about what happened with Rogers-Shaw and the proposal of the remedy later in the game. All the way through this pre-notification process, there's an opportunity to come to a resolution, and that's what happens most of the time. This resolution is obviously agreed to by both sides. Once again, it's the bureau saying, “We're satisfied, and the way things have been changed and the things you're going to do”—whatever that might be, like divestitures or undertakings—“are good enough that we're not going to object.” Ultimately, though, a small number of cases—and it really is a small number—get contested before the tribunal. It's important to reiterate this, because it gets said so many times incorrectly in the press.
The tribunal does not approve mergers. The tribunal hears an application from the commissioner that says they have concerns about this merger and believe these concerns can be addressed by an order from the tribunal. This is a request for an order to resolve serious competition concerns. They have to reach a threshold of being substantial, and that is how this process before the tribunal starts.
Without getting into a lot of detail, what is significant and I think important to keep in mind with respect to why there was such a dust-up over whether we looked at the original transaction or we looked at the transaction as modified is that proposing a remedy in the context of the contested proceeding is not something that's happened before, so it is a new question. The tribunal didn't see a problem with it and said that, at the end of the day, the burden of proof didn't really matter. They thought the evidence was there anyway. But it was an altering of the normal way things are done. I think for the future we need to think about whether that's actually what we want to do.
I will tell you what my concerns are, and I'm happy to discuss them in greater detail.
The first is that we are now creating an incentive to wait to propose remedies until things are further along. That matters from a public-interest perspective because the commissioner doesn't invent a section 92 application overnight. That takes months of preparation. In this case, factually, there was no deal with Videotron on the table until June. They did get documents at that time, and then they got the full documents in August.
I think you need to remember that the level of detail—and if you have looked at the tribunal decision you will know—required to prove anti-competitive effect requires serious econometric analysis and lots of information. If you just have the idea that there's a deal out there, that's not enough for the commissioner to prepare a case. They are going to be required to prove things with detailed evidence. You need to know what the numbers are in that remedy. You need to know the conditions of the transaction to assess its impact. When it comes late in the game, that is difficult.
I will be clear about this. As a factual matter, the tribunal said there was no prejudice in this case. The commissioner didn't suffer any harm. I think we have to be careful about how much we expect public enforcers to just twist on a dime, but I think that's part of the reason they didn't go further with it.
I will say that the Federal Court of Appeal does recognize it's possible that proposed remedies coming after a challenge is filed could be a source of abuse or could be problematic, but they don't want to explore the conditions of that right now because there wasn't really a live case before them. They didn't think it was going to make any difference in this case. That's fair enough, but I think for the future we shouldn't just be passive about this and say we will leave this Rogers decision like this. What are the conditions under which we would be willing to say we're comfortable that deals can be changed and that maybe considering the remedy right into the merger is acceptable?
I have some reservations and I will tell you why. It's a feature of our corporate law and it's a feature of our economic system here that companies don't have to consider the public interest. They are not obliged to do that. They are absolutely entitled and free to consider their profit maximization self-interest. In that context, we need to be a bit careful about saying we're just going to allow unilaterally proposed remedies to be baked in and we will analyze them. I'll put that to you.
My next two points I'm going to say very quickly. They are on the tribunal process. I can't remember if I have said this already, but I think it's a heavy process. It's like a court, yet it's packaged as an expert entity. I urge you to look at the kinds of expertise that are generally used in the tribunal and at whether or not you think that captures the full public interest that might bear on competition matters.
For the most part, the expertise is in business and economics. The question is whether there are other perspectives relevant to the competition questions that come up that we should perhaps ensure are better represented in the tribunal. Honestly, when they talked about accelerating the process and the tribunal had an expedited process.... I'm going to give you a metaphor. Imagine an elephant running. The process of the tribunal is heavy. There are limits to how much you can accelerate a court process, so let's examine some other models that are faster.
Finally—and this is really a very short point on regulatory coherence—I think that as we look at competition reform, we should consider how competition relates to other areas of regulation. In this case—and I am not an expert and I defer to those who are—it is clear that there are some cross-purposes happening here between telecommunication regulation and competition regulation, and I think that should concern you.
I'm going to stop here. I'll be happy to answer your questions.
[Translation]
I can respond in French as well, if you prefer.
Thank you.
:
Thank you so much to the committee for inviting me to speak on this important topic.
My name is Keldon Bester. I am a co-founder of the Canadian Anti-Monopoly Project and a fellow at the Centre for International Governance Innovation. In the past, I worked as a special adviser at the Competition Bureau and as a fellow at the Open Markets Institute in the United States.
I want to be upfront that Globalive Capital, which has an interest in blocking this transaction and which you will be hearing from later today, is a financial supporter of CAMP. We maintain strict editorial independence in our policy positions.
I would like to start by returning to the conclusions of this committee back in March 2022. They are conclusions that I feel remain relevant today. This committee correctly determined that the Rogers-Shaw transaction should not proceed, but that if it did, the government should use any tools it has to hold the parties accountable for their promises to Canadians. This committee also noted that the law that made this merger possible—the Competition Act—should be reviewed immediately.
As for the situation today and where we might go from here, I would like to stress three points.
First, while it is entirely possible that Videotron replicates its competitive performance in Quebec and eastern Ontario, we should set the bar higher than the competitive outcomes currently present in Quebec. The government should direct the CRTC to monitor whether Videotron makes good on its aspirations to be a disruptive competitor.
Second, if we do not use the ongoing review of the Competition Act to reform Canada's weak merger laws, we should expect to find ourselves in the same situation, if not a more extreme situation, in the near future as corporations continue to use mergers and acquisitions as a way to reduce competition and entrench their dominance. Two changes to this effect could be the presumption of illegality of mergers by dominant or jointly dominant corporations and acquisitions thereof, and an explicit preference for outright blocks, which the commissioner pursued, rather than risky behavioural or structural remedies.
Finally, Canada's telecom policy framework cannot remain stagnant as the market undergoes this kind of structural change. The government should act on the proposed policy direction for the CRTC and direct it to review its framework for supporting wireless competition in light of this transaction, including the consideration of a full mobile virtual network operator—or MVNO—model.
Because of the approach taken by the merging parties and accepted by the Competition Tribunal, Canadians have limited options to hold the merging parties accountable for maintaining competition in Canada's wireless market. All that remains now is the 's approval of the transfer of spectrum assets and the conditions he attaches to that transfer.
Following the release of the tribunal's decision in late December, CAMP wrote that the has the opportunity to strengthen the conditions he laid out in his October statement. These could include more aggressive pricing benchmarks based on international peers, a timeline for reaching those benchmarks and the consequences for not doing so, which could include the introduction of an MVNO model.
Entrepreneurs who build successful companies are entitled to the rewards of their hard work, but those rewards should not come at the cost of competitive markets for Canadians. The end point of a system that puts so much emphasis on getting mergers through is the further monopolization of markets that are critical to Canadians, reducing competition when we should be increasing it.
One role of effective competition policy is to close off exit options that reinforce the monopoly power of incumbent corporations. Concentration only leads to more concentration. An effective competition law, a well-resourced enforcer and the vigilance of elected officials like you are needed to prevent that slide into monopoly.
The committee has done important work studying this issue and raising its profile with the broader public. My hope is that this committee takes what may be its final opportunity to urge the action needed to protect the interests of Canadians.
Thank you for your time. I look forward to your questions.
Good afternoon. I'd like to thank the chair and members for inviting me to appear before you today.
My name is Bryan Keating. I'm an economist at Compass Lexecon, which is a global economics consulting firm.
By way of disclosure, my colleagues and I were retained by Rogers throughout the regulatory process, and comments I'll make today were informed by the analysis we did as part of that process.
I'd like to discuss the transaction from the perspective of economics.
For avoidance of doubt, when I talk about the transaction, I'm really referring to both pieces of the transaction: the transfer of Shaw's wireline assets to Rogers and the transfer of Freedom's wireless assets to Videotron. I'm talking about the transaction that is currently under review, not the original transaction.
My colleagues and I have been involved in assessing this transaction in various forms for close to two years now. In the course of that review, we looked at thousands of pages of documents and many terabytes of data. Our conclusions about the competitive effect of the transaction are informed by that analysis.
To me, it's clear that if you are pro-consumer and pro-competition, you should be in favour of this transaction. I'll talk a bit about why.
From an economist's perspective, the concern about mergers is that you reduce competition: You eliminate the competitor. That's not the case here. There's no situation in which you're going to reduce the number of competitors in any province in either wireline or wireless.
The transaction is going to create large benefits through economies of scale and economies of scope. Really, the only parties that are harmed are potential competitors to Rogers and Videotron, because they're going to have to compete more aggressively. That's good for consumers. That's good for competition.
The conclusion that the merger is good for competition is shared by two independent bodies, as we've already heard today.
In December, the Competition Tribunal, after a month of hearings in which they heard from dozens of witnesses and reviewed thousands of pages of documents, reached the conclusion that the transaction would not substantially lessen competition but would in fact increase competition. Just yesterday, we heard from the Federal Court of Appeal, which affirmed the tribunal's decision and in fact said that from a competition perspective, it was not a close call.
I'd like to talk a bit about why we reached that conclusion.
On the wireline side, even the competition commissioner did not challenge the transaction. Shaw's and Rogers' wireline footprints do not overlap at all. In fact, by combining those footprints, Rogers will benefit from the economies of scale that you realize from having a bigger footprint. We already see the benefits of that competition in the responses from Bell and Telus to the announcement of the transaction and to the process. Both Bell and Telus have announced billions of dollars of investment in their own networks, in part in response to what they anticipate coming out of this merger process.
On the wireless side, the combination of Videotron and Freedom, I think it's fair to say, will help achieve a long-standing policy goal in Canada, which is to create a fourth national—or at least national-scale—competitor. Videotron's footprint will cover close to 90% of the Canadian population after this transaction. As I said, achieving a strong fourth competitor is pro-competition and will achieve a goal that I think has long been sought in Canada.
As with the wireline side of things, there will not be any reduction in the number of competitors in any province. You will continue to have four competitors in every province. What the transaction is going to do is reallocate Shaw's assets, with the wireline piece going to Rogers and the wireless piece going to Videotron. Both are competitors that are well positioned to make use of those assets to enhance competition.
I'd like to say a few words about Videotron, because I think there have been a lot of questions and a lot of talk about various potential divestiture candidates.
From an economic perspective, Videotron is well positioned to compete aggressively. It has a strong incentive to compete aggressively. I think the experience in Quebec is that Videotron has been a vigorous competitor. Prices in Quebec tend to be low relative to the rest of Canada. Videotron also has important assets that it brings to bear. Most importantly, it recently licensed 3.5 gigahertz of spectrum. Combining that spectrum with Freedom's spectrum makes efficient use of a scarce and valuable resource. We've heard questions before about how companies use the spectrum they have licensed.
This transaction is a mechanism for Videotron to quickly deploy its 3.5 gigahertz spectrum into a 5G network, which has the potential to be a really high-quality network. It also creates a lot of capacity in Videotron's network. If you look at the number of subscribers Videotron will have relative to the amount of spectrum and other network assets it will have, it will have a lot of capacity to deliver high-quality services. This creates a huge incentive for Videotron to compete aggressively to grow and attract new subscribers, and that's a benefit to competition.
We've heard questions about Videotron's commitments and whether they're enforceable. From an economic point of view, our analysis doesn't rely on those commitments. It relies on the ability and the incentive of Videotron to compete aggressively.
I have two more comments about Videotron.
We heard questions before about Videotron's dependence on various facilitated agreements with Rogers. One thing that's important to note is that by creating a close-to-nationwide network for Videotron, this transaction will actually reduce dependence by Videotron on other operators in an important respect. Roaming is a critical aspect of wireless network service. Currently, because Videotron is based in Quebec, it has to rely on roaming agreements with other carriers to provide service to its customers outside of Quebec. By creating a national and international network, Videotron actually reduces its dependence on other networks, and that is an important element of competition.
The last thing I'll say about Videotron is that by increasing the scale, it has the potential to realize other benefits in terms of negotiating for handsets, network equipment and international roaming. For all these things, Videotron has a strong possibility to reduce its costs relative to what exists today. One can expect those costs to be passed on to consumers in various forms of benefits.
We've made a written submission for the committee, which involves more detail, but I'm going to stop here. I'm happy to take any questions from the committee.
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What's new is that it has never come up that a substantial modification to a deal has been challenged under section 92. It happens that there are modifications to deals, but they tend to happen further upstream in the process.
The Rogers-Shaw merger, like many and most mergers, is pre-notifiable, so the bureau gets notice that the transaction is coming, and that's the moment when you say.... Any set of merging parties that know what they're doing has looked at their transaction to see whether there are any anti-competitive problems, and they probably have solutions in their back pocket that are going to come out as soon as the commissioner says they have some concerns. They'll say, “We thought about that, so how about we do this?”, and that's the way it works.
What's unusual here is that it was not until the commissioner finally filed a section 92 application that the prospect of a sale to Videotron, which had been in the background for a long time but Rogers had said they were not interested.... They tried to sell to private equity first. I was not in those back corridors and I was not privy to those conversations. I don't know what was said and how much was known, but it's pretty clear from the commissioner's perspective that preparing to challenge a merger that was suddenly changed radically...is a big difference.
What hadn't been decided by the tribunal before is whether we can change the order of the steps that normally happen and say that first you decide if there's a competitive problem, and then you decide if there's a remedy. As is always true in litigation, he who asserts must prove, so if Rogers says that this is the right solution, they bear the burden of proving that it addresses the entirety of the competitive concerns.
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You're asking something that I don't know directly, in the sense that I'm not a telecom expert. I can't tell you how many times the minister has been called upon to exercise discretion in awarding spectrum licences when there was a question about whether he or she would do so.
I would say, from the perspective of a lawyer and someone who looks at the law, that having a minister who makes a decision on an incident is probably something that you would hope to avoid. That's because the spectrum licence is not the entire transaction. You would make a decision on that as a way of indirectly achieving something that the properly constituted decision-making body does not conclude. I worry about that because it's going to look like political interference or a workaround.
As I said, this is a curiosity or, if you will, a particularity of the fact that we're in telecom and not in another industry, where it would have been the end of the matter with the decision of a court of appeal. However, I think the is entitled to say he wants to look at the full ramifications and wants to understand exactly what's involved, because when he spoke in October, we didn't have a decision from the tribunal. We didn't know how things were going, and he put out some things that he expected. However, I suppose, within the exercise of his discretion and in consulting with the right people and getting the information he needs, he could maybe add to those conditions or insist on mechanisms that allow for accountability.
The tribunal also recognizes that these conditions are not legally enforceable. I worry, honestly, that these kinds of undertakings have been done in the past. I think every one of you probably remembers times when there were undertakings made in good faith. We said, “We'll keep our head office here” or “We'll keep plants open in Canada”, and then circumstances changed and we reneged.
There is a business reason for the change, but it happens nevertheless. To the extent that the deal rests on that, you have to worry about it.
I'd like to thank all the witnesses for their testimony.
Mr. Keating, after the hearing, which lasted a month, the tribunal ruled in favour of Shaw, Rogers and Videotron. That was December 31. Expert testimony was cited extensively, particularly that of Mark Israel from Compass Lexecon.
The tribunal found Mr. Israel open, candid and knowledgeable, and that he did expose a number of significant flaws in the opposing experts' analysis. Where Mr. Israel and the opposing expert disagreed, the tribunal noted that Compass Lexecon was the expert who provided the strongest and most convincing testimony. The tribunal concluded that Mr. Israel had convincingly demonstrated that the opposing expert's model would not have predicted a significant price increase and agreed with Mr. Israel that the opposing expert's predicted price increase in the wake of the merger was highly questionable.
We just heard from representatives of the Competition Bureau. However, when they testified, they had not studied the new deal between Shaw, Rogers and Quebecor. They insisted on looking only at the agreement between Rogers and Shaw. The tribunal determined that the Commissioner of Competition had not fulfilled his responsibility to determine certain impacts the agreement would have.
Could you give us examples of how the Commissioner of Competition has failed to fulfill his responsibilities in recent months?
It's normal and is part of our democracy to have the Minister of Innovation intervene not only in this situation but also in general. We've seen the Investment Canada Act, and we'll have more legislation on that coming up.
I look back at the competitive issues. Zellers being taken over by Target didn't help competition. Future Shop being taken over by Best Buy didn't help competition. Rona was taken over by Lowe's, and that didn't increase competition. In fact, the undertakings there were very modest. Also, U.S. Steel is gone.
There have been rejections, and good examples are—thank goodness—potash and MDA regarding satellites. Those have been strong things. We also have the minister, who directs the CRTC to some degree by having a mandate letter, which comes from the Prime Minister. In mere fact, we're dealing with a public asset here. It's the spectrum that we push out in the system.
My first question is for Mr. Bester, and it's with regard to where we are now in our policies. I'm curious about that. Is there any other comparative out there in the United States, Australia or other places? I know the U.S. has antitrust legislation that is different from ours, but what else can we look at to fall back on? Do we need to modernize some of our approaches here?
The U.S. is actually looking at some of the antitrust stuff going on now with Google. Historically, this comes as part of their culture, and we can look at one of the first cases, the one with Standard Oil. It's part of their actual functioning market economy to have this type of protection for consumers. Could you comment, please?
Thank you to all the witnesses appearing today and thank you to my colleagues. I'm joining you from Mission—Matsqui—Fraser Canyon, where Shaw has a major presence.
My constituents are really struggling with the cost of living right now. As their representative, I am coming forward on their behalf today. They're asking me, “Brad, will this merger result in a more affordable Internet bill and a more affordable cellphone bill?” I'm not necessarily sure it will. However, I'm also highly suspicious of Rogers' claim that it is going to invest $6 billion in western Canada in the rural and indigenous communities that I represent.
During the pandemic, a mother who lives in Hatzic Valley and is still on Shaw's dial-up Internet asked me, “Brad, why won't Shaw simply cross the road and extend the line to my house?” They haven't done so, and they've failed to use the spectrum they received from auction to the benefit of Canadians who rely on this essential service. I'm approaching everything that I say in my remaining four minutes or so with that.
Dr. Keating, Shaw Internet customers right now.... I'll just ask what prices will be available to the two million existing Shaw Internet customers who today get zero-dollar talk and text and a $25, 25-gigabyte plan. Is Rogers planning on going down to those prices, or should those Shaw customers expect—if this merger goes through—something similar to the Rogers prices, which are, I believe, at $35 and $85, respectively?
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Mr. Lemire, in my opinion, you're raising a thorny issue. When individuals mobilize the people out of self-interest, you have to wonder how that serves the public interest.
That's why I always hammer away at the same idea, that I support public consultations. I constantly encourage all members of the public to speak out during this consultation, no matter what they have to say. In my view, government and parliamentarians have a duty to hear from the people in an unfettered manner, with no labels, no packaging, and so on.
On the other hand, you can't completely ignore mobilization attempts either, because members of the public aren't always in a position to properly structure their opposition. So I'm lenient about that, because I know that, right or wrong, true desire and true frustration must be expressed. It's not my place to say who's right or wrong.
However, it's clear to me that we have a gap between the people's understanding and the legal and economic understanding of this transaction's implications. A balance must be struck between the two if we want to avoid a revolt over the process.
I feel that no one benefits from the public being skeptical of the merger rating and assessment system, among other things. I believe we all have a vested interest in making sure we close that loophole. However, I'm not necessarily the person who can do that. I'm doing what I can, but I think that collectively we need to inform the public. I understand these mobilization efforts, even though they may be clumsy.