Competition Tribunal Threatens to Disclose IP Addresses Following Rogers Shaw Merger Challenge Rejection

After rejecting a challenge to the Rogers Shaw merger, the “Competition” Tribunal is now threatening to disclose IP addresses.

Rogers had been asking for a decision about the Rogers Shaw merger by the end of the year. It appears that the Competition Bureau decided to treat that as marching orders and is doing everything it can to serve the interests of Rogers. Now, it finds itself tangled in a screw up which led to the organization threatening to violate the privacy of Canadian’s.

If you recall, back in May, the Competition Bureau recommended that the Rogers Shaw merger be blocked. Among the reasons is the obvious fallout of potentially higher prices for competitions due to less competition. In fact, for the “Competition” Tribunal said that reducing the whole sector from 4 big players to 3 would not result in less competition. From the “Competition” Tribunal:

The core issue in this proceeding was whether a proposed acquisition of Shaw Communications Inc. (“Shaw”) by Rogers Communications Inc. (“Rogers”), as modified by a divestiture arrangement with Videotron Ltd. (“Videotron”), is likely to prevent or lessen competition substantially in the provision of wireless telecommunications services in Alberta and British Columbia. Pursuant to their three-way arrangement, Shaw would first transfer its subsidiary Freedom Mobile Inc. (“Freedom”) to Videotron. Rogers would only then acquire the remainder of Shaw through an amalgamation arrangement.

The Tribunal has determined that the proposed transactions and ancillary agreements comprising the arrangement (the “Merger and Divestiture”) are not likely to prevent or lessen competition substantially. In other words, the Merger and Divestiture are not likely to result in materially higher prices, relative to those that would likely prevail in the absence of the arrangement. The Merger and Divestiture are also unlikely to result in materially lower levels of non-price dimensions of competition, relative to those that would likely exist in the absence of the arrangement. Such non-price dimensions of competition include service, quality, variety, and innovation.

Put it in another way, the Tribunal found that reducing the competition in the sector by 25% would not decrease competition. Further, such an arrangement won’t result in any changes to prices in the consumer market monopolies would never dream of doing such a thing. In response, the Competition Bureau expressed disappointment in the decision:

Matthew Boswell, Commissioner of Competition, issued the following statement regarding the Competition Tribunal’s Information Note indicating it intends to dismiss the Competition Bureau’s challenge of Rogers’ proposed acquisition of Shaw.

“I am very disappointed that the Tribunal is dismissing our application to block the merger between Rogers and Shaw. We are carefully considering our next steps.”

Apparently, it didn’t take long to consider the next steps. Reports have surfaced, saying that they will be appealing the decision. From Globe & Mail (probably regwalled):

Rogers Communications Inc. RCI-B-T and Shaw Communications Inc. SJR-B-T said they have been advised that the Competition Bureau is appealing a decision from the Competition Tribunal permitting their proposed $26-billion merger to proceed.

The cable companies said in a joint statement that they are “deeply disappointed” that Commissioner of Competition Matthew Boswell is applying for an injunction that would prevent the deal from closing until the appeal can be heard by the Federal Court.

If an injunction is granted, that could push the deal into mid-2023, RBC analyst Drew McReynolds predicted. If the Competition Bureau does not obtain a stay, the deal could close as soon as Mr. Champagne’s department signs off. That could be as early as January, Mr. McReynolds wrote in a research note.

The cable companies have extended the deadline for their proposed merger into next year as they wait to clear the final regulatory hurdles after being handed a victory by Canada’s Competition Tribunal late Thursday.

It seems, however, that the decision to move forward with the merger process involved some mistakes along the way. Apparently, the Competition Tribunal spent a mere two weeks to read through tens of thousands of documents and expert testimony:

2 weeks to review 10s of thousands of pages and 45+ expert witness testimony!? No one could even scan the evidence let alone produce a thoughtful decision!

In the process, confidential information was apparently accidentally exposed:

Not only has Competition Tribunal shamed itself with Rogers-Shaw rush to judgement, but it also mistakenly released confidential information, harvested the IP addresses that accessed it, and now wants to know if it can disclose the IP addresses. (v/@pukwa)

Now, the Competition Tribunal is looking to disclose the IP addresses of anyone who accessed that document. From the Competition Tribunal:

Date: December 29, 2022

Matter: CT-2022-002 – Commissioner of Competition v Rogers Communications Inc. and Shaw Communications Inc.

Direction to Counsel, including counsel for Bell (from Justice Little, Chairperson)

Re: Letters dated December 22, 23 and 24, 2022, from counsel for Bell and counsel for Rogers

The Tribunal advises the following information received from the Registry:

– A version of Rogers’s compendium was posted to the Tribunal website at approximately 12:35 PM on December 13, 2022. Access to it on the website ended at approximately 9:39 AM on December 14, 2022.
– The document received 71 “clicks” and 10 “downloads” on December 13, 2022.
– The document received 41 “clicks” and 3 “downloads” on December 14, 2022.
– Lists of the IP addresses for these “clicks” and “downloads” have been generated.

Affected parties are invited to share with the Tribunal their positions with the respect to whether, and under what conditions (if any), such IP addresses may be disclosed, and any Tribunal or court process(es) that may be required.

Sara Pelletier
Senior Registry Officer
Competition Tribunal
600-90 Sparks, Ottawa ON K1P 5B4
Tel.: 343-574-0140

What??? On what planet is this somehow a logical response to the situation? In response, we alerted the Canadian Privacy Commissioner about the intent to disclose such personal information:

Uh, @PrivacyPrivee, is there a reason why the Competition Tribunal is threatening the privacy of Canadians with the idea of disclosing IP addresses? “… under what conditions (if any), such IP addresses may be disclosed”

It was bad enough that the Competition Tribunal seems to be working on behalf of Rogers and Shaw and not the public interest. Now, we have this added mess on top of it all to deal with. Little wonder why so many are looking at this whole situation and commenting on how astonishing this whole thing is.

Drew Wilson on Twitter: @icecube85 and Facebook.

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