Canada Gazette Notice No. DGSO-001-12

Proposed Revisions to the Frameworks for Mandatory

Roaming and Antenna Tower and Site Sharing, as published

in the Canada Gazette, Part 1, dated 24 March 2012

Reply Comments

of

Bell Mobility Inc.

13 June 2012

Table of Contents

Page

1.0 INTRODUCTION...............................................................................................................1

2.0 PROPOSED REVISIONS TO THE MANDATORY ROAMING REGIME.......................... 3

3.0 PROPOSED REVISIONS TO THE MANDATORY TOWER AND SITE SHARING REGIME .......................................................................................................................... 16

3.1 Proposals Regarding Existing COLs for Tower and Site Sharing ....................... 17

3.2 Proposed New Requirements for Tower and Site Sharing.................................. 24

4.0 PROPOSED REVISIONS TO THE ARBITRATION REGIME......................................... 32

5.0 CONCLUSION ................................................................................................................ 34

1.0 INTRODUCTION

1. In accordance with the procedure set out in Industry Canada Notice No. DGSO-001-12,

Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower and Site

Sharing, as published in the Canada Gazette, Part 1, dated 24 March 2012 (the Notice), Bell

Mobility Inc. (Bell Mobility or the Company) is pleased to provide the following Reply Comments

based on its review of the comments posted on Industry Canada's website.

2. Bell Mobility notes that it filed comments (the Comments) along with twenty-one other

parties listed on Industry Canada's website.

3. The Company's Comments raised a general policy concern related to the Department's

proposal to change the Advanced Wireless Services (AWS) conditions of licence (COLs) less

than half way into the 10-year term of the AWS spectrum licences. The Company noted that:

Parties valued and bid upon the AWS licences based on COLs known by all bidders. To change them now would fundamentally change the value of moneys bid and paid after the fact. The AWS regulatory framework, including the roaming and tower sharing COLs, should be respected and left unchanged. Doing otherwise serves only to undermine certainty and confidence in future Industry Canada auctions.1

4. The Company's review of the comments only serves to heighten this concern and

demonstrates the difficulty with reopening COLs once they have been set and licences have

been paid for and awarded. A number of parties clearly see the Notice as an opportunity to

reopen virtually every aspect of the AWS licensing framework upon which the 2008 auction was

based. Indeed, several parties go so far as to suggest that commercial agreements, entered

into pursuant to the AWS COLs, should now be undone or renegotiated, as a result of the

changes proposed in the Notice.2

5. As a result, parties who previously supported the Department's initiatives to facilitate

entry into the Canadian wireless market now find themselves unable to support the proposed

changes. Saskatchewan Telecommunications (SaskTel), for example, noting that it "has been

supportive of the past public policy objectives to stimulate competition by giving special

advantages to new entrants" now states that:

1 Bell Mobility, Comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower

and Site Sharing, DGSO-001-12, dated 14 May 2012, page1. 2 See, for example, comments of Public Mobile, page 3 and comments of Mobilicity, page 3.

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In general, SaskTel is not supportive of the manner in which the proposed revisions to the regulations for roaming and tower sharing have supplanted the ability of market forces to shape the wireless industry.3

6. The Company notes that, in its foundational document addressing policy issues

concerning spectrum auctions, the Department's Framework for Spectrum Auctions in Canada

states, in discussing "Licence Attributes", that:

In order to develop business plans, secure financing and develop a bidding strategy, it is important that bidders understand exactly what is being auctioned. . . . The precise attributes related to specific spectrum licences will be included as part of the public consultation preceding a specific auction, as well as in the corresponding policy and licensing framework documents.4 (emphasis added)

7. The AWS Policy Framework, addressing the very COLs that are the subject of this

Notice, indicated that:

Following the consultation, the final conditions of licence will be made public so that all those affected are aware of the changes. They will be announced before the deadline for applications for the auction, to allow parties to make fully informed decisions, in a Canada Gazette notice and also posted on Industry Canada's Spectrum Management and Telecommunications website.5 (emphasis added)

8. To maintain the integrity of the Department's spectrum auction process, it is equally

important that bidders can rely on the knowledge that the applicable COLs, developed pursuant

to a thorough public consultation process, are fixed for the duration of the licence term. With

this context, the Company considers that changes to the existing COLs be kept to a minimum

and that the Department resists calls for further extensive and fundamental changes to its

processes.

9. In the following sections, the Company provides its Reply Comments regarding the

proposed changes to the mandated roaming and tower and site sharing COLs and the

comments of other parties posted on Industry Canada's website.

3 SaskTel, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower and

Site Sharing, DGSO-001-12, 14 May 2012, page 1. 4 Ibid. 5 Industry Canada, Policy Framework for the Auction for Spectrum Licences for Advanced Wireless Services and

other Spectrum in the 2 GHz Range, November 2007, page 12.

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2.0 PROPOSED REVISIONS TO THE MANDATORY ROAMING REGIME

4-1: Industry Canada is seeking comments on the proposed revisions to Section 9.1 of the current Conditions of Licence for Mandatory Roaming as follows (new text is in bold): The Licensee must provide automatic digital roaming (roaming) indefinitely by way of Roaming Agreement(s) on its cellular, PCS, AWS, MBS and BRS networks to any other licensee in these bands (A Requesting Operator). Where technically feasible, the Licensee shall offer roaming in all its

licensed service areas in the aforementioned bands. A Requesting Operator includes provisional licence winners.

10. The Company's Comments discussed and outlined a number of concerns with the

proposed changes to Section 9.1 of the COLs for mandatory roaming. The Company continues

to hold those concerns. Based on its review of the comments of other parties, the Company will

address the elements of the proposed changes that it believes to be particularly significant,

namely: (1) the proposal that the COLs require mandated roaming indefinitely, and (2) the

expansion of the scope of mandated roaming to include all licensees.

11. As stated in its Comments and reiterated above, the 5- and 10-year time frames

currently applicable to the mandated roaming COLs, should not be altered from those

established prior to the AWS auction. If however the Department insists on changing the

timeframes Bell Mobility agrees with TELUS Communications Company (Telus) when it notes

that:

Time-bounded roaming requirements have also been important. The current rules place strict time limits on in-territory and out-of-territory roaming. These rules, and in particular, the five-year in-territory roaming limitation, mean that those carriers that rely on roaming arrangements must make building facilities a priority.6

12. Noting the importance of encouraging the development of facilities based competition,

rather than continued reliance on the facilitates of other licensees, Telus suggests that all

roaming be mandatory for renewable five-year periods commencing with the issuance of

licence. As Telus notes the application of renewable five-year periods, contingent on the

roaming carrier meeting its build-out requirements, would provide the Department with a

reasonable opportunity to ensure that incentives to build are not diminished.

6 Telus, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower and

Site Sharing, DGSO-001-12, 14 May 2012, page 3.

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13. The Company's Comments also objected to the proposal to extend mandated roaming to

all carriers. Consistent with the policy concern noted above, the proposal to extend mandatory

roaming to all carriers is a significant and fundamental variance from the AWS COLs developed

through public consultation and relied on by Bell Mobility and others in formulating related

auction and business strategies. In light of this concern, the Company's Comments

recommended that mandated roaming continue to be restricted to new entrants, whether AWS

or MBS, in pursuance of the Department's original objective of facilitating new wireless entry.

14. MTS Allstream notes in this regard that:

The Department proposes to broaden the scope of mandatory roaming to benefit not just the service providers that entered the mobile wireless market in the last AWS spectrum auction (the AWS new entrants), but to all other service providers who have held spectrum licences in the territories in question for quite some time.7

15. MTS Allstream's comments go on to list a range of potential adverse effects which could

flow from such a fundamental change in the intent and focus of the Department's mandated

roaming policy. Some of the adverse effects cited by MTS Allstream, which also are a cause of

concern for Bell Mobility, include but are not limited to:

A reduced ability on the part of incumbent licensees, who cover the largest proportion of

their serving areas, to build out by reducing the amount of capital (i.e., due to its

diversion to accommodate additional roaming traffic) available to make the necessary

investments;

Since roaming is available indefinitely and on an unrestricted basis, no wireless service

provider, except for incumbent licensees, will have any incentive to invest in building

out infrastructure in rural and remote areas and that the incentive to do so would be

reduced;

Given that any of the incumbent licensees' infrastructure investments in rural and remote

areas will inevitably have to be shared with service providers that have no compulsion to

make similar network investments now or in the future, one of the direct effects of

7 MTS Allstream, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna

Tower and Site Sharing, DGSO-001-12, 14 May 2012, page 8.

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Proposal 4-1 would be to actively discourage investment in rural and remote areas by

incumbent licensees.8

16. For its part, SaskTel notes regarding the proposal to expand mandated roaming to all

carriers that:

Regional service providers such as SaskTel will, under these proposed rules, be required to support cellular providers with revenues 10 to 12 times larger than themselves. These large companies, after operating in the cellular field for decades, have not found it convenient to invest in Saskatchewan. Now their inertia is being rewarded with mandated access to the infrastructure that SaskTel has expanded to include 97% of the population of Saskatchewan.9

17. Bell Mobility agrees with SaskTel when it recommends that mandated roaming should

continue to be focused on new entrants only. As SaskTel notes, such a focus acknowledges

that:

i. Given the number of existing commercial arrangements which already

provide for roaming throughout Canada there is no need to create rules which replicate the output of market forces;

[and] ii. Focusing on new entrants recognizes public policy goals of enhancing the

number of competitors in the marketplace without realigning the entire industry.10

18. Bell Mobility categorically rejects the suggestion by Rogers Communications (Rogers)

that the Company and Bell Aliant have used regulated subsidies to extend its wireless networks

effectively making it economically impossible for Rogers to expand its network into rural and

remote areas. As Rogers is well aware, any concern regarding the possibility of anti-

competitive cross subsidy was long ago dealt with by the Commission in its regulatory reform

proceedings. In this regard, the Commission specifically noted, in its 1999 decision granting

forbearance to the wireless affiliates of incumbent ILEC's, that:

. . . the Commission continues to be of the view that the costing safeguards imposed by the Commission since the release of decisions 94-15 and 96-14, such as the split rate base and price cap regime, sufficiently limit the opportunities for anti-competitive cross subsidies to wireless services.11

8 Ibid., pages 8 and 9. 9 SaskTel, comments, DGSO-001-12, 14 May 2012, page 2. 10 Ibid., page 3. 11 Telecom Order CRTC 99-991, Stentor Resource Centre Inc. - Forbearance for Wireless Services,

13 October 1999, paragraph 15.

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19. Bell Mobility further notes, in this regard, that Rogers however has always focused its

builds on larger urban centres and corridors while companies, such as Bell Aliant and other

regional ILECs, have expanded their wireless networks extensively throughout their respective

service areas, including into rural and remote areas.12

20. Bell Mobility also rejects Rogers' assertion13 that the network sharing arrangements

between Bell Mobility and Telus are anything but innovative in nature, provide increased

competitive choice for customers, expand service in many areas where none was previously

available and are business arrangements available for any entities to avail themselves of.

Indeed, Industry Canada in its recent Consultation on a Licensing Framework for Mobile

Broadband Services (MBS) — 700 MHz Band, DGSO-002-12, April 2012 (700 MHz

Consultation), noted the positive benefits of such arrangements when it stated that:

It has been noted that several Canadian service providers have entered into different forms of network and spectrum sharing arrangements, driven by the investment and spectrum efficiencies that such arrangements can bring, particularly in rural areas.14 (emphasis added)

21. Noting that in previous auctions the Department's rules did not accommodate such

arrangements, Industry Canada is now proposing, while ensuring that such entities are

vigorously competing with one another and that the integrity of the auction process is

maintained, that:

In support of the stated policy objectives of competition, investment and timely deployment to rural areas, and in light of the current scarcity of spectrum in the 700 MHz band, the high demand for capacity by customers (driven by the use of smart phones and tablets), the high cost of network deployment, particularly in rural areas, as well as the spectrum and network efficiencies that can be achieved through such arrangements, Industry Canada recognizes that changes to the rules should be considered.15

22. Consequently, Industry Canada recognizes that such innovative network arrangements,

with appropriate safeguards in-place, are both spectrally and financially efficient while making

real competitive alternatives available to customers. Bell Mobility submits therefore that Rogers'

comments in this respect are without merit and should be disregarded and should certainly not

12 Rogers, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower and

Site Sharing, DGSO-001-12, 14 May 2012, pages 6 and 7. 13 Ibid., pages 7 and 8. 14 Industry Canada, Consultation on a Licensing Framework for Mobile Broadband Services (MBS) — 700 MHz

Band, DGSO-001-12, April 2012, page 7. 15 Ibid., page 7.

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be relied on to justify the extension of indefinite roaming privileges to Rogers which has had

access to nation-wide, high-quality, low frequency spectrum since 1985.

4-2: Industry Canada is not proposing any changes to the current Section 9.2 of the Conditions of Licence for Mandatory Roaming.

23. This item dealt specifically with the issue of seamless communications hand-off. In its

Notice Industry Canada stated that it "... is not aware of any other country that currently

mandates seamless communications hand-off." The Department further noted that

"... mandating seamless communications hand-off is not considered necessary to advance

Industry Canada's stated policy objectives."16

24. Some AWS new entrants, but not all, continue to call for mandated seamless

communications hand-off. Notably none refuted Industry Canada's observation, in the Notice,

that it is not aware of any country that currently mandated seamless communications hand-off.17

25. Commenting more substantively on the issue, Rogers noted that:

The significant technical challenges and costs associated with seamless hand-off have been presented and considered in several proceedings undertaken by Industry Canada and the CRTC over the past several years. On each occasion, the conclusion has been that seamless hand-off between networks is complex, costly and uncommon and that it should not be mandated. The issue has been examined extensively, and ruled on as recently as April 5, 2012, and it does not warrant further consideration in the present consultation. For all of these reasons, we support the Department's proposal to continue to exclude seamless communications hand-off from the roaming requirement.18

26. For its part Telus noted that:

TELUS anticipates that some parties might request that seamless roaming be included as part of the mandatory roaming requirements. Such a requirement would be an anomaly in the mobile wireless world.19

27. Consistent with the view expressed above that COLs which have been relied upon by

bidders should remain unchanged for the initial term of the licence, Bell Mobility supports the

Department's proposal not to make any changes regarding Section 9.2 of the COLs for

16 Industry Canada, Notice, DGSO-001-12, 24 March 2012, page 8. 17 See for example comments of Globalive at pages 12 and 13 and comments of Shaw, pages 8 and 9. 18 Rogers, comments, DGSO-001-12, 14 May 2012, page 11. 19 Telus, comments, DGSO-001-12, 14 May 2012, page 7.

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mandatory roaming. Bell Mobility further notes that in this instance there is nothing in the record

of the proceeding that would warrant any change to Section 9.2.

4-3: Industry Canada is seeking comments on the proposed revised text to

replace the current wording of Section 9.3 of the Conditions of Licence for Mandatory Roaming (new text is in bold):

In order to satisfy the condition of roaming in accordance with this licence, the

Licensee must respond to a request for information by a Requesting Operator within two weeks of receiving the request by providing to the Requesting Operator, preliminary technical information, such as technical data, engineering information, network requirements, and other information relevant to formulating a Roaming Proposal.

28. The Company continues to believe, as stated in its Comments, that it could satisfy the

revised rule.

4-4: Industry Canada is not proposing any changes to the current text of Sections 9.4 or 9.5. It is expected that roaming agreements will be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar roaming services.

29. As previously noted above, several AWS new entrant parties perceived the Notice as an

opportunity to reopen numerous aspects of the Department's AWS licensing framework and in

particular the COLs surrounding mandated roaming and tower and site sharing. Nowhere is this

more evident than in the comments of new entrant parties regarding roaming rates.

30. The Department's Notice states in this regard that:

When Industry Canada mandated roaming, it balanced the need for intervention to achieve certain policy objectives with a reliance on market forces where possible. As such, although there is a requirement to provide roaming, the conditions of licence do not dictate rates or the contents of agreements.20 (emphasis added)

31. Having collected and reviewed data from all licensees, as part of the initial phase of its

review of the mandated COLs, the Department states in its Notice that:

Based on the review of the preliminary data collected, there is insufficient evidence to suggest that rates being charged are unreasonable. Furthermore, agreements have been signed, and parties have recourse to arbitration if disagreements arise regarding rates or terms.21

20 Industry Canada, Notice, DGSO-001-12, 24 March 2012, page 8. 21 Ibid.

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32. Rather than balancing the need for "intervention" with "a reliance on market forces

where possible", several parties proposed what would essentially amount to re-regulation of the

competitive wireless industry through detailed regulation of roaming rates. Globalive Wireless

Management Corp. (Globalive), for instance, suggests an extensive five-point plan that would

essentially entail detailed rate regulation of wholesale roaming rates by the Commission.22

Mobilicity calls for the imposition of "tariffed" mandatory roaming with several pages of its

comments dedicated to outlining all that that entails.23 Similarly, Eastlink lays out its proposals

for a wholesale roaming regime that would see Commission rate regulation of roaming rates

initiated first by a Commission roaming proceeding to sort out the "details" of developing

wholesale roaming rates.24

33. To the contrary, Bell Mobility agrees with Telus when it states that:

Rate regulation is a highly interventionist regime and would require the development of tariffs by way of cost study reviews. Such a regime would be onerous to implement and would cause contentious proceedings. Rather than relying on a rate set by a regulator, parties should be entitled to negotiate to mutually beneficial rates and terms, with recourse to arbitration should negotiations fail.25

34. Bell Mobility also agrees with the view on this point expressed by Rogers when it notes

that:

Given that Rogers has negotiated a number of one-way roaming agreements with new entrants, it is clear that the Department's policy has been successful and there is no reason to abandon it in favour of a regime based on artificially low rates. Artificially low rates would provide an incentive to licensees to rely on roaming rather than invest in the expansion of their own network facilities. It would also require the use of heavy-handed and inefficient price regulation. As such, this alternative approach would be inconsistent with the federal government's broader telecommunications policy objectives and its efforts in reducing regulation of the sector in favour of a greater reliance on market forces. The Department should maintain the appropriate balance it established when it required that roaming be offered at commercial rates.26

22 Globalive, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower

and Site Sharing, DGSO-001-12, 14 May 2012, pages 13 to 15. 23 Mobilicity, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower

and Site Sharing, DGSO-001-12, 14 May 2012, page 16. 24 Eastlink, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower and

Site Sharing, DGSO-001-12, 14 May 2012, page 13. 25 Telus, comments, DGSO-001-12, 14 May 2012, page 9. 26 Rogers, comments, DGSO-001-12, 14 May 2012, page 16.

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35. Rogers' comments above highlight a very relevant point in that the wireless sector is a

fast moving, innovative and dynamic segment of the industry. Bell Mobility certainly does not

believe that an industry with such characteristics would be well matched with a "heavy-handed

and inefficient price regulation" regime. Nor do we believe that such a regime would be in the

best interests of Canadian wireless users.

36. Bell Mobility still considers, as stated in its Comments, that the "commercially

reasonable", "market-based" standard continues to be the appropriate standard by which to

assess compliance between the roaming COLs and agreements offered by responding

operators. This is consistent with the twin policies of relying upon market forces and minimalist

regulatory intervention. In addition, as Rogers notes above, an approach that would involve

detailed rate regulation of the sector would be inconsistent with the federal government's

broader telecommunications policy objectives and its efforts in reducing regulation of the sector

in favour of a greater reliance on market forces. As a result, the Company continues to support

the Department's proposal to leave these COLs unchanged.

4-5: Industry Canada is not proposing any changes to the current text of Section 9.6.

37. The current text of Section 9.6 requires the Licensee responding to a roaming request

from a Requesting Operator to negotiate a roaming agreement in good faith. Contrary to

Industry Canada's proposal not to change the current text of Section 9.6, Globalive proposes

that:

Section 9.6 should be reinforced with a model standard roaming agreement or a defined set of specific principles which roaming agreements should adhere to. . . . The exceptions and deviations, as they pertain to domestic roaming agreements should be filed for review and approval by the Commission as is the case with other types of inter-carrier agreements such as those in place between Local Exchange Carriers. There is no public policy reason supporting different Commission treatment of inter-carrier wireless agreements and wireline agreements.27 (emphasis added)

38. Bell Mobility notes, in reply, that as long ago as 1998 the Commission concluded that:

28. In view of the competitive nature of the wireless market, the Commission has developed, through numerous decisions, a different regulatory regime for wireless services. In particular, in Regulation of Mobile Wireless Telecommunications Services, Telecom Decision CRTC 96-14, 23 December

27 Globalive, comments, DGSO-001-12, 14 May 2012, page 15.

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1996, the Commission forbore from regulating the rates, terms and conditions for the provision of cellular, PCS and ESMR services due to its determination that these markets were sufficiently competitive to protect consumers.

29. The Commission considers the current forbearance regime to be inconsistent with a regime which would mandate access to competitive wireless networks as proposed by AIReach. Mandating such access would run counter to the Commission's general approach of fostering the growth of competitive markets and, wherever possible, leaving rates, terms and conditions for the provision of services to be disciplined by competitive markets.28

39. Contrary to Globalive's assertion, the Commission acknowledged the principle, as long

ago as 1998, that the public policy objectives for the wireline and wireless markets were not

interchangeable and that, in the circumstances, market forces were the more appropriate arbiter

for the competitive wireless market. Bell Mobility believes that this same principle applies to the

treatment of wireless and wireline inter-carrier agreements as for the provision of retail services

in the competitive wireless market.

40. As noted in its Comments, the Company's practice is always to negotiate in good faith.

We believe we have adhered to this standard in all of our roaming (and tower sharing)

negotiations. Consequently, the Company continues to support, as do a number of parties,

Industry Canada's proposal to leave this COL unchanged.

4-6: Industry Canada is seeking comments on the proposed revised text to replace Section 9.7 of the Conditions of Licence for Mandatory Roaming (new text in bold).

If after 60 days from the date that the Licensee receives the Roaming Proposal, the Licensee and the Requesting Operator have not entered into a Roaming Agreement or have not agreed to any interim arrangement, the Licensee must submit or agree to submit the matter to arbitration in accordance with Industry Canada's Arbitration Rules and Procedures, as amended from time to time. The Licensee shall agree that the arbitral tribunal shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the Roaming Agreement and those relating to procedural matters under the arbitration) and that any arbitral award or results under this condition of licence shall be final and binding with no right of appeal subject to applicable provincial or territorial legislation. The Licensee must participate fully in such arbitration and follow all directions of the arbitral tribunal in accordance with Industry Canada's Arbitration Rules and Procedures and any arbitration procedures established by the arbitral tribunal.

28 Telecom Order CRTC 98-1092, Applications Requesting Interconnection With The Telecommunications

Networks Of The Federally Regulated Cellular and Personal Communications Services Providers and Related Issues, 3 November 1998.

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41. The proposed change in language would shorten the timelines within which parties must

agree on the terms of a roaming agreement from the current 90 days down to 60 days. In its

comments, the Company opposed this change for a number of reasons noting, among other

things, that roaming negotiations are inherently complex and technical. In the Company's view,

60 days is an unreasonably small window of time within which to arbitrarily require the parties to

agree to terms.

42. Noting that it considers 90 days to be a reasonable timeframe in the circumstances,

SaskTel states its view to the effect that:

. . . SaskTel believes that the imposition of unrealistic deadlines [i.e. 60 days] will lead to arbitration becoming the default position for these negotiations and that this would unnecessarily increase the costs to all parties and could actually increase the total time required to reach agreements.29

43. In light of its review of the record of this consultation, the Company continues to consider

that the 90 day timeframe should be left unchanged.

4-7: Industry Canada invites suggestions from stakeholders on additional measures (other than those discussed above) to further increase the effectiveness of mandatory roaming.

44. Several parties proposed additional measures (other than those specifically raised in the

Notice or those which we have addressed above) which the Company will respond to in the

following sections.

Rogers

45. Rogers suggests that the Department give effect to the revised policy and COLs for

roaming as soon as it issues its decision at the conclusion of this consultation.30

46. Bell Mobility disagrees. As noted, Bell Mobility does not believe that the COLs which

were relied on by bidders should be changed less than half way into the 10-year licence term of

the AWS licences. Reliance upon market forces means allowing pre-existing commercial

agreements to run to their full terms. While Bell Mobility does not support extending mandatory

roaming beyond new entrants, we strongly believe that if the Department chooses to do so, it

29 SaskTel, comments, DGSO-001-12, 14 May 2012, page 11. 30 Rogers, comments, DGSO-001-12, 14 May 2012, page 16.

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not do so prior to the expiration of the initial term of the AWS licences. Bell Mobility notes that

SaskTel31 is of a similar view in that it recommends restricting the mandatory roaming policy to

new entrants.

Public Mobile

47. Public Mobile proposes a variety of additional measures which include regulation of

roaming rates, reopening of existing roaming contracts entered into pursuant to the existing

COLs, Commission involvement in the setting of roaming rates, development of a public

database of roaming rates and terms as well potential Industry Canada involvement in roaming

agreement negotiations.32

48. For all the reasons previously discussed above, Bell Mobility strongly disagrees with

Public Mobile's recommendations as being ill-suited to the competitive wireless market and

offensive to the principles of reliance on market forces and minimalist regulatory intervention.

Mobilicity

49. Mobilicity, for its part, has several pages of additional recommendations ranging from

calls for rate regulation, matters addressing interconnection arrangements between carriers and

calls for Industry Canada to implement extensive and on-going information gathering.33

50. Bell Mobility considers that the majority of these recommendations are out of scope and

should be treated accordingly. In particular, Bell Mobility does not support the inclusion of a

COL, as suggested by Mobilicity which would mandate points-of-interconnection as proposed in

paragraph 73 of Mobilicity's comments.

51. Finally, in this regard, Bell Mobility, reiterates the suggestion contained in its Comments

that the Company considers that the Department should remind all stakeholders that the COLs

pertaining to roaming specifically mean that roaming is not resale and that there is no obligation

whatsoever on responding licensees to provide licensees requesting roaming with resale

31 SaskTel, comments, DGSO-001-12, 14 May 2012, page 3. 32 Public Mobile, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Antenna Tower

and Site Sharing, DGSO-001-12, 14 May 2012, pages 3 to 5. 33 Mobilicity, comments, DGSO-001-12, 14 May 2012, pages 18 to 21.

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services or privileges. We note Rogers' agreement with this view in its comments when it

states:

We agree with the Department's proposal that mandatory roaming will continue to exclude resale. It is important to remember that the Department's original decision to exclude resale was set in the broader context of the federal government's decision to accelerate the pace of deregulation of competitive telecommunications markets. This decision culminated in the issuing of a direction to the CRTC regarding the implementation of the Canadian telecommunications policy objectives. The CRTC was directed, among other things, to rely on market forces to the maximum extent, increase incentives to promote facilities-based competition and phase out mandated access to wholesale services that are not essential services. Consistent with this broader policy context, the Department introduced mandatory roaming, while at the same time explicitly excluding resale and requiring that roaming be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar roaming services. . . . We believe that the Department should . . . uphold its objectives of promoting facilities-based competition and investment in wireless networks by excluding resale from the roaming requirement.34

Public Safety Canada and the Centre for Security Science

52. A number of public safety organizations or affiliated groups submitted comments

addressing mandated roaming and seamless communications hand-off. To facilitate Bell

Mobility's response to such proposals our reply will focus on the joint submission from Public

Safety Canada / Centre for Security Science (Public Safety Canada).

53. Regarding mandated roaming, Public Safety Canada's proposal is that it be allowed to

roam onto the networks of commercial mobile carriers while acknowledging in its comments

that, "This necessarily has implications for how commercial users are affected when first

responders roam onto commercial networks."35

54. Regarding roaming from commercial networks onto public safety networks (the reverse

of the above), its comments state that:

As for roaming in the other direction, that is, non-public safety users roaming onto the future public safety network, Public Safety Canada believes that a more careful study is required to understand the implications on security and

34 Rogers, comments, DGSO-001-12, 14 May 2012, pages 13 and 14. 35 Public Safety Canada and the Centre for security Science, comments on Proposed Revisions to the Frameworks

for Mandatory Roaming and Antenna Tower and Site Sharing, DGSO-001-12, 14 May 2012, page 3.

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availability of the future public safety network to first responders during emergencies. As such, Public Safety Canada recommends that a decision on roaming by commercial users onto the public safety network be deferred for future consultation and adequate testing.36 (emphasis added)

55. Bell Mobility notes that the implications for commercial users identified above include,

but are not limited to, access to and pre-emption of commercial users on public networks,

including access to emergency services, likely during times of emergency or distress. Bell

Mobility believes the appropriate approach would be to defer any and all mandated access

between commercial and public safety networks until such time as both forms can be subject to

sufficient study and testing to determine the potential impacts on the users of both networks.

56. Public Safety Canada also recommends37 that seamless communications hand-off also

be mandated, presumably in this case between commercial and public safety networks. Bell

Mobility does not agree with Public Safety Canada's comments regarding seamless

communications hand-off. As a result, for all the reasons identified above, Bell Mobility does not

believe that seamless communications hand-off, between any networks, should be mandated by

the Department.

Level of Service

57. In its comments, Rogers proposes a new level of service requirement be applied to

licensees requesting roaming. Rogers suggest that should a carrier currently operating a high-

speed packet access (HSPA) network begin to implement long-term evolution (LTE) within that

network, it would be required to provide LTE coverage to 60% of the population of their entire

network coverage area before they would be entitled to request LTE roaming from a

Responding Licensee.

58. Since it also supports the Department's objective of encouraging facilities-based

competition rather than resale, Bell Mobility agrees with Rogers' proposal regarding the level of

service available to requesting licensees.

36 Public Safety Canada, comments, DGSO-001-12, 14 May 2012, page 3. 37 Ibid., page 4.

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3.0 PROPOSED REVISIONS TO THE MANDATORY TOWER AND SITE SHARING REGIME

59. Bell Mobility has reviewed the submissions of other parties regarding the proposed

revisions to the mandatory tower and site sharing regime. In this section, the Company will

address the issues raised by parties in the order of their appearance in the Notice.

60. At the outset, the following summarizes the Company's position on the Department's

proposals related to mandatory tower and site sharing:

a. concurs with the proposed changes to broaden the application to apply to all

radiocommunication service providers in order to promote the objective of limiting the

proliferation of towers.

b. continues to believe that the Department's proposed reduced timeframe in which to

provide a preliminary technical information package (provided that the package is

complete) as specified in the Notice will be challenging.

c. tower sharing rates must continue to be commercially negotiated. There is no evidence

that rates are not reasonable in comparison to rates currently charged to others for

similar access and rate regulation is not required.

d. continues to support the Department's good faith negotiation proposal together with the

proposed revised wording in Section 8.6 of the COLs for mandatory tower and site

sharing.

e. remains of the view that although the proposed reduction of the timeline for concluding a

sharing agreement from the current 90 days to 60 days may, in some instances present

a challenge, experience gained from negotiating agreements over the past three years

would enable us to meet the 60 day timeline in the majority of cases.

f. remains concerned that some of the data elements being requested by the Department

under the section entitled "Improving Transparency" are problematic. With respect as to

how this information should be made available we are of the view that the Department's

present website should be expanded to accommodate this requirement.

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g. concurs with the Department proposal to establish a time limitation upon which the

validity of an Offer to Share must be responded to.

h. remains of the view that the intended purpose of the requirement to file semi-annual

reports is unclear and we are prepared to provide this data to the Department on an ad

hoc basis when required.

3.1 Proposals Regarding Existing COLs for Tower and Site Sharing

5.1 Application of the Conditions of Licence

5-1: Industry Canada is seeking comments on the proposed text to replace sections 8.1 and 8.2 of the Conditions of Licence for Mandatory Tower and Site Sharing (new text is in bold).

The mandatory tower and site sharing conditions of licence will apply to all radiocommunication service providers in all bands.

8.1 The Licensee must facilitate sharing of antenna towers and sites, including rooftops, supporting structures and access to ancillary equipment and services ("Sites") and not cause or contribute to the exclusion of other radiocommunication service providers from gaining access to Sites. Without limiting the generality of the foregoing,

- where the Licensee is party to an agreement that includes a provision

excluding other operators from the use of a Site, then, in order to facilitate the sharing of Sites, the Licensee must consent to waiving that portion of the agreement to facilitate a Request to Share;

- as applicable, the Licensee must consent to or, in a commercially

reasonable manner, seek the consent of third parties to the assignment, sublease or other rights of access to Sites pursuant to any agreement or arrangement to which the Licensee is a party; and

- the Licensee must not enter into or renew agreements that exclude other

operators from using a Site.

8.2 The Licensee must share its Sites containing antenna-supporting structures, where technically feasible, when requested to do so by any other radiocommunication service providers authorized under the Radiocommunication Act or by a party who is a provisional licence winner in accordance with a licensing process ("A Requesting Operator").

61. The Company remains of the view that the proposal by the Department to expand the

applicability of the requirement to share to include any radiocommunication service provider is

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valid. This is in line with the Department's objective to minimize the proliferation of towers to the

extent possible, provided that sharing is feasible.

62. As noted by Rogers in this regard:

It is Rogers understanding that paging and trunked radio operators, which are not interconnected, would now be caught under the conditions of licence as they offer radiocommunication services for compensation. Rogers supports the proposed change as it will expand the number of site owners caught by the mandatory tower sharing conditions of licence and as a result will further expand the number of sites available for sharing.38

63. And, as further supported by TerreStar Solutions Inc.:

Agrees with the proposal to broaden the applicability of this policy from Radiocom Carriers to Radiocom Service Providers. Solutions agrees with this change as it expands the pool of players who would be mandated to share their towers.39

64. As indicated in Bell Mobility's initial Comments, inclusion of all radiocommunication

service providers would continue to promote the objective of limiting the proliferation of towers.

It would also serve to increase the number of sites available for sharing and, as also indicated

by Globalive in its comments, expedites network deployment:

WIND submits this is a positive change which will promote both of the stated tower and site sharing policy objectives: (a) to reduce tower proliferation and (b) to facilitate competitive entry by expediting network deployment.40

65. While a number of parties recommended that the Department should not expand the

applicability of sections 8.1 and 8.2 of the COLs for Mandatory Tower and Site Sharing to

include radiocommunication service providers, we remain convinced that unless there are

extenuating circumstances that prevent such co-location, that the Department proceed with the

proposal as outlined in their Notice. The policy is broad enough to ensure that licensees who

may have extenuating circumstances and who are unable to share a particular tower/site are

able to take these into consideration when a request for sharing is made.

38 Rogers, comments, DGSO-001-12, 14 May 2012, paragraph 47. 39 TerreStar Solutions Inc., comments on Proposed Revisions to the Frameworks for Mandatory Roaming and

Tower and Site Sharing, DGSO-001-12, 14 May 2012, paragraph 10. 40 Globalive, comments, DGSO-001-12, 14 May 2012, paragraph 55.

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66. Bell Mobility supports and concurs with the Department's proposal to broaden the

applicability of tower and site sharing to all radiocommunication service providers in order to

increase the number of towers and sites available for co-location and to limit the proliferation of

towers.

5.2 Responding to Requests for Information

5-2: Industry Canada is seeking comments on the proposed revised text to Section 8.3 of the Conditions of Licence for Mandatory Tower and Site Sharing (new text is in bold).

8.3 In order to satisfy the condition of Site sharing in accordance with this licence, the Licensee must respond within two weeks of receiving a complete* request for preliminary technical information from a Requesting Operator as follows:

- the Licensee shall provide to the Requesting Operator any preliminary

technical information for each Site, such as drawings, surveys, technical data, engineering information, future requirements, lease provisions and other information relating to the site relevant to formulating a Proposal to Share that it has in its possession or control; and

- upon reasonable notice by the Requesting Operator, the Licensee shall

facilitate access to the site so that a formal Proposal to Share can be formulated.

* a preliminary request for technical information will be considered complete if it contains, at a minimum, two of the following: (1) the licensee's site reference number (2) the site address (3) geographical coordinates.

67. The Notice sought comments on the proposed revision of Section 8.3 of the COLs for

Mandatory Tower and Site sharing regarding a proposed change in the response time to

respond to a Preliminary Information Package (PIP) to a Requesting Operator.

68. While the Company continues to view the proposed two week timeline as challenging,

we also agree with the Department's view, as outlined in the Notice, that in order to ensure a

prompt turnaround time, the preliminary request for technical information received from the

Requesting Operator must be complete.

69. In this vain, we agree with the views expressed by MTS Allstream in their comments that

the proposed timeframe is feasible provided that the request received is complete. MTS

Allstream goes on to say:

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The proposed two-week timeframe is feasible, subject to two important caveats that are seemingly included in Proposal 5-1 but deserve to be underscored.

1. Completeness of Request for Preliminary Technical Information 2. Content of Preliminary Information Package.41

70. The Company also supports comments made by Telus wherein they suggest that one of

the ways that processing can be expedited is that Requesting Operators provide a priority list of

their requested sites as normally not all sites in a network deployment are built at the same

time. Telus indicated:

A significant improvement would recognize the industry response to such resource constraints, caused by large unexpected spikes in demand. It is a common practice for operators to consult on the prioritization of sites. Typically, not all sites in a large network deployment are confirmed for build at the start. Prioritizing sites has two advantageous effects. First, it allows information to be exchanged more quickly for the sites that the requesting operator intends to build at the start. Second, it recognizes that network deployment plans can change, especially for non-prioritized sites, and longer timelines for response on lesser priority sites can avoid wasting resources on sites that are eventually abandoned. The proposal should allow scope for the parties to agree on prioritized sites, and benchmark the highest priority sites to a two week PIP response time.42

71. Bell Mobility has been requesting that Requesting Operators provide a priority list in

those instances where many requests have been submitted at the same time. We are of the

view that the use of a priority list serves to expedite processing and is responsive to the needs

and requirements of the Requesting Operators. The provision of a priority list as outlined above

would serve to ensure that Requesting Operators obtain technical information for sites that they

are primarily interested in. With respect to the proposal by Rogers43 to further reduce the

timeframe from the proposed 14 days to 10 days, Bell Mobility does not support a further

reduction in timeline.

72. With respect to the proposal to shorten the timeline in which a responding licensee must

provide preliminary technical information to requesting operators, Bell Mobility maintains its

views as presented in our initial Comments that although the proposed shortened timeframe

may present challenges; we will nevertheless endeavor to do our utmost in order to meet the

revised deadline.

41 MTS Allstream, comments, DGSO-001-12, 14 May 2012, paragraph 45. 42 Telus, comments, DGSO-001-12, 14 May 2012, paragraph 48. 43 Rogers, comments, DGSO-001-12, 14 May 2012, paragraph 50.

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5.3 Tower Sharing and Technical Feasibility

5-3: Industry Canada is not proposing any changes to the current text of Sections 8.4 or 8.5. It is expected that Site Sharing Agreements, including access to ancillary equipment and services, will be offered at commercial rates that are reasonably comparable to rates currently charged to others for similar access.

73. The Department's Notice sought views regarding whether Section 8.4 and 8.5 of the

COLs concerning tower sharing rates should be modified. A number of respondents44 45 46 to

the consultation on this issue agreed with the Department's proposal to not make any changes

to the current text of the COLs.

74. In the Notice, the Department confirmed that from their preliminary review of rates being

charged, that the rates are reasonable:

"there is insufficient evidence to suggest that rates, being charged are unreasonable."47

75. Bell Mobility further agrees with the Department's view that if parties cannot agree on

rates or terms contained in an agreement that they have recourse to arbitration to deal with the

matter.

76. We do not agree with the assertion from Globalive48 that "commercial rates" continue to

be problematic and inconsistent with the costing principles applied to other support structures.

Clearly from the Department's review, as stated previously, there is no evidence to suggest that

rates being charged are unreasonable.

77. It should be noted that the Company does not view wireless towers as bottleneck

facilities. As outlined in a 1998 Commission decision, the Commission concluded that cellular

and personal communications services (PCS) markets are sufficiently competitive and that none

of the wireless providers can be said to have dominant market power or control bottleneck or

essential facilities. In this regard, the Commission stated:

44 Telus, comments, DGSO-001-12, 14 May 2012, paragraph 50. 45 Rogers, comments, DGSO-001-12, 14 May 2012, paragraph 51. 46 Québecor, comments on Proposed Revisions to the Frameworks for Mandatory Roaming and Tower and Site

Sharing, DGSO-001-12, 14 May 2012, paragraph 37. 47 Industry Canada, Notice, DGSO-001-12, paragraph 50. 48 Globalive, comments, DGSO-001-12,14 May 2012, paragraph 59.

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The Commission notes that it used the concept of essential facilities to provide for competitors' interconnection with the dominant wireline providers' networks to allow the evolution of facilities-based competition in the local and long distance wireline markets. As previously noted, the circumstances that exist in the wireline industry are different from those prevailing in the PCS and cellular markets. In particular, in contrast to the wireline market, facilities-based entry was the initial form of competition in the wireless market. The Commission considers that the cellular and PCS markets are sufficiently competitive such that it cannot be said that facilities are monopoly controlled or cannot be economically or technically duplicated. As a result, none of the wireless providers can be said to have dominant market power or to control bottleneck or essential facilities. Accordingly, the Commission considers that wireless networks are not essential facilities as suggested by certain parties.49

78. Further, Bell Mobility does not agree with the proposed modification suggested by

Mobilicity50 regarding "non-discriminatory and reasonable commercial terms" for the same

reasons as cited above. There is no evidence to suggest that agreements are being

discriminated against and that they do not include reasonable terms. In any event, if parties

cannot agree on terms of an agreement, the arbitration process continues to be available in

order to resolve any disputes.

79. As indicated in our initial comments, the Company also wholeheartedly agrees with the

Department's views that rate regulation would be highly interventionist and inconsistent with

long-standing Departmental policies.

80. Bell Mobility continues to support the Department's proposal on the continued reliance

on commercial negotiations and arbitration process if required, to establish rates and terms of

commercial agreements for site sharing as well as access to ancillary equipment and services

as outlined in the Notice.

5.4 Good Faith Negotiations

5-4: Industry Canada proposes that the text from Section 1.2 of CPC-2-0-17 be moved to Section 8.6 of the conditions of licence for mandatory tower and site sharing as follows (new text is in bold):

Licensees must negotiate with a Requesting Operator in good faith, with a view to concluding a Site Sharing Agreement in a timely manner. In order to be considered to be negotiating in good faith, Responding Licensees must

49 Telecom Order CRTC 98-1092, Applications Requesting Interconnection With The Telecommunications

Networks Of The Federally Regulated Cellular and Personal Communications Services Providers and Related Issues, 3 November 1998, paragraph 27.

50 Mobilicity, comments, DGSO-001-12, 14 May 2012, paragraph 86.

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offer access to ancillary equipment and services at reasonable commercial rates.

81. The majority of respondents to this proposal agreed with the Department to add text

from Section 1.2 of CPC-2-0-17 Conditions of Licence for Mandatory Roaming and Antenna

Tower and Site Sharing and to Prohibit Exclusive Site Arrangements to Section 8.6 of the

conditions of licence for Mandatory Roaming and Antenna Tower and Site Sharing concerning

negotiating in good faith.

82. As noted by Telus51 in their response on this point however, the requirements being

proposed already form part of the overall general practices instituted by licensees when

negotiating site sharing arrangements. Therefore, the Company sees no difficulty with this

modification.

83. As indicated in our initial comments in response to this proposal, Bell Mobility has and

will continue to negotiate with all Requesting Operators in good faith.

5.5 Timelines for Tower Sharing Negotiations

5-5: Industry Canada proposes that the text in Section 8.7 of the conditions of licence for mandatory tower and site sharing be modified to indicate that arbitration may be initiated as follows (modified text is in bold):

8.7 If after 60 days from the date that the Licensee receives a Proposal to Share, the Licensee and the Requesting Operator have not entered into a Site Sharing Agreement or have not agreed to any interim arrangement, the Licensee must submit or agree to submit the matter to arbitration in accordance with Industry Canada's Arbitration Rules and Procedures, as amended from time to time. The Licensee shall agree that the arbitral tribunal shall have all necessary powers to determine all of the questions in dispute (including those relating to determining the appropriate terms of the Site Sharing Agreement and those relating to procedural matters under the arbitration) and that any arbitral award or results under this condition of licence shall be final and binding with no right of appeal, subject to applicable provincial or territorial legislation. The Licensee must participate fully in such arbitration and follow all directions of the arbitral tribunal in accordance with Industry Canada's Arbitration Rules and Procedures and any arbitration procedures established by the arbitral tribunal.

84. The Notice requested comments to modify the timelines to allow arbitration to be

initiated after 60 days rather than the current 90 days. As noted in our initial Comments, the

Company believes that while shortening the timeframe to 60 days may pose some challenges

51 Telus, comments, DGSO-001-12, 14 May 2012, paragraph 51.

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the fact that parties are able to agree to extend negotiations should facilitate this reduced

timeline.

85. As noted by the majority of responding parties, while there does not appear to be any

difficulties with reducing the timeline, it must be noted as further elaborated by Rogers in their

submission, that:

site sharing is a time consuming process that requires the efforts of both the requesting and responding party. The process is dependent on the availability of key resources, including outside engineering consultants, to examine and approve tower sharing requests.52

86. Successful negotiation of site sharing agreements requires the active participation and

effort on the part of both parties and it is hoped that ongoing dialogue and communications

between parties will facilitate concluding an agreement within the 60 days.

87. To reiterate Bell Mobility's initial Comments on this matter, while we do not see any

difficulty with the reduced timelines we do believe, that in the event that negotiation of an

agreement is unnecessarily delayed due to inactivity or lack of a response to a specific proposal

from a requesting carrier, that the timeline should be reset to the 60-day mark.

3.2 Proposed New Requirements for Tower and Site Sharing

5.6 Improving Transparency

5-6: Industry Canada is seeking comments on the proposed new text to be inserted into the Conditions of Licence for Mandatory Antenna Tower and Site Sharing.

For each site where the licensee operates an antenna mounted on an antenna-supporting structure (the tower), the licensee must make the tower information listed below available to all parties that may be interested in seeking a sharing agreement, in addition to Industry Canada. Licensees must provide any updates on a monthly basis.

(1) unique site identifier (standardized to include identification of tower

owner) (2) site location details (latitude/longitude and civic address) (3) tower height and type (monopole, self-support, etc.) (4) a tower loading profile, including all antennas on the tower, spaces

reserved for imminent future use and the summary of existing leases

52 Rogers, comments, DGSO-001-12, 14 May 2012, paragraph 54.

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(5) for space reserved for imminent future use, the date on which the space was identified as such

(6) contracted third party lease arrangement contacts (7) compound layout (8) tower foundations design (9) Transport Canada and/or NAV CANADA form(s) (10) site access information, such as contacts, procedures and specific

restrictions related to a site visit

In addition to the new wording proposed above, comments are also being sought on the following:

(a) How should tower information be made available?

- Individual licensee responsibility to post information on their own

websites; - An industry-led initiative to develop and manage a database

accessible to parties; - Expansion of the site upload data currently collected by Industry

Canada.

(b) Are there additional data elements that are required to further facilitate the PIP stage of the tower sharing process?

88. The Notice requested comments on the requirement to have licensees make information

on their towers available to improve transparency.

89. As noted in the Company's initial Comments while certainly some of the information

being requested is available in our internal databases, there are certain data elements that are

not readily and easily available. Nevertheless, our main issue with the proposal revolves

around making certain data elements publicly available. We remain concerned about the

confidentiality and security of the proposed information requested. This aspect was also

addressed by Rogers in their comments:

In the alternative, should Industry Canada persist with the database despite its drawbacks, several concerns regarding the database's composition need to be addressed. To begin with, Rogers generally has serious concerns about the confidentiality and security of the proposed information requested. The proposed data elements would provide a large amount of technical data about all radiocommunication service provider sites throughout Canada. It would also provide detailed information about third party landlords and third party co-locators that Rogers and other Licensees do not have consent to post. Based on this, Rogers submits that any database could only be available on a confidential basis to registered users that would need to be approved before being provided access to any site information.53

53 Ibid., paragraph 64.

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90. Bell Mobility does not agree with the assertion by Public Mobile54 wherein they propose

that the information requirements should apply to rates and all terms and conditions of tower

collocation agreements.

91. As outlined in our Comments under Section 5-3 dealing with rates, we continue to

believe that site sharing agreement rates are all based on commercial rates and should

continue to be negotiated between parties. We do not see a need to include such information in

a public database.

92. Bell Mobility agrees with the comments proposed by Québecor Média inc. and Vidéotron

s.e.n.c. (Québecor) in that certain data elements are not necessary to be included in the data

base:

Cela dit, nous sommes d'avis que les données suivantes n'ont pas à être insérées à la base de données: • les sommaires de baux existants; • les dates auxquelles les espaces réservés pour utilisation future imminente

ont été identifiés ainsi; • les baux • les informations relatives à l'accès aux sites.55

93. The Company stands by our initial Comments that we do not see the requirement for

any additional data elements to be provided to facilitate the PIP stage of the tower sharing

process. Further, gathering unnecessary information results in additional valuable resources

(both in terms of time and money) having to be expended which could also lead to unnecessary

delays in releasing information in a timely manner.

5.7 Addressing the Issue of Outstanding Offers to Share

5-7: Industry Canada is seeking comments on the proposed new text to be inserted into the Conditions of Licence for Mandatory Antenna Tower and Site Sharing.

If within 60 days, the Licensee has not received a response from the Requesting Operator to an Offer to Share, the Licensee may treat the Offer to Share as withdrawn with no further obligations.

54 Public Mobile, comments, DGSO-001-12, 14 May 2012, proposal 5-6, page 6. 55 Québecor, comments, DGSO-001-12, 14 May 2012, paragraph 41.

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94. The Notice also sought comments on the issue of outstanding offers to share and

proposed that if a response is not received from a Requesting Operator to an offer to share

within 60 days, the licensee may withdraw the offer with no further obligations.

95. The majority of the responding parties agreed with the Department's proposal. A firm

expiry period on offers to share would enable licensees to better manage their tower capacity

and be in a better position to provide other requesting operators with timely information on

availability of tower space. A similar point was made by SaskTel in their comments:

SaskTel fully supports this condition as it allows tower capacity to be managed much more efficiently and should reduce tower information requests to serious queries only.56

96. It must be noted, that it is of key importance that all parties clearly understand what a

"response from the Requesting Operator" means. This matter is further elaborated by Rogers in

their comments:

Industry Canada has proposed wording to allow Licensees to treat Offers to Share as withdrawn if a response has not been received from a Requestor within 60 days. Rogers supports the proposed revision but asks that the "response from the Requesting Operator" wording in the conditions of licence be clarified to ensure that response is either an acceptance or a cancellation. Rogers' concern lies in the fact that Requestors could interpret the term "response" to mean a confirmation of receipt, a request for an extension or any other type of response that is not an official acceptance or cancelation of the request.57

Rogers suggests the following wording for the condition of licence (new wording in bold):

If within 60 days, the Licensee has not received a response from the Requesting Operator to an Offer to Share, the Licensee may treat the Offer to Share as withdrawn with no further obligations. A response from a Requesting Operator is either a formal withdrawal of the request or the return of the signed Offer to Share to the Licensee within the 60 day period.

97. The Company is in agreement with the Rogers proposal to modify the currently

proposed text to provide clarity in terms of what constitutes a "response" from a Requesting

Operator.

56 SaskTel, comments, DGSO-001-12, 14 May 2012, paragraph 52. 57 Rogers, comments, DGSO-001-12, 14 May 2012, paragraphs 72 and 73.

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98. It should also be noted, that in the event that a Requesting Operator fails to respond to

an offer to share within the 60 day period, the Operator should not assume that they continue to

have priority on the site. This would ensure that the process remains fair and equitable to all

Requesting Operators that may be in the queue waiting for access. This point was further

elaborated by Mobilicity in their comments:

Mobilicity supports Industry Canada's proposal that "if within 60 days, the Licencee has not received a response from the Requesting Operator to an Offer to Share, the Licencee may treat the Offer to Share as withdrawn with no further obligations." However, in the event that more than one Requesting Operator concurrently seeks access to the tower (which would be known to the Requesting Operator with the pending Offer to Share in Mobilicity's proposed additional transparency clauses), Mobilicity recommends that the Requesting Operator that fails to respond with an Offer to Share shall lose its priority, and the next Requesting Operator in the queue shall be provided the opportunity to negotiate a site sharing agreement. This will ensure that there is no onus on the Licencee to determine if it may or may not grant an extension to the benefit of one party and the detriment of another.58

99. Together with the above additional comments, Bell Mobility stands by its original

Comments and concurs with the Department's proposal to deem that an offer to share is

withdrawn if a response has not been received by the licensee from the requesting operator

within 60 days.

5.8 Increased Monitoring of the Tower Sharing Progress

5-8: Industry Canada is seeking comments on the proposed new text to be inserted into the Conditions of Licence for Mandatory Antenna Tower and Site Sharing. Specifically, should licensees be required to report on additional information? If so, what other information should be included?

The licensee must provide to Industry Canada a standardized report containing all tower sharing requests initiated and received, including:

the unique site identifier site location details (latitude/longitude and civic address) name of tower owner or licensee requesting to share the date that the preliminary information package (PIP) request was sent

or received the date that a Proposal to Share was sent or received the date that an Offer to Share was sent or received the date that an agreement was reached or the date and reason why the

request was withdrawn/denied

58 Mobilicity, comments, DGSO-001-12, 14 May 2012, paragraph 96.

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The report is to be submitted to Industry Canada semi-annually (end of March and September) every year.

100. In the Notice, the Department requested comments on the proposal to have tower

sharing data from licensees filed on a semi-annual basis. One of the reasons cited was that

although Industry Canada could request this data from licensees at any time, such requests

tend to be made only when concerns are raised. As expressed in our initial Comments, the

Company remains of the view that the absence of any arbitration related to tower or site sharing

is a clear indication that the existing conditions of licence have been and continue to be both

effective and efficient.

101. The above point is also raised in SaskTel's comments wherein they refer to the already

high level of administrative burden of reporting already imposed by various government

agencies:

SaskTel does not favour increased reporting requirements of any kind. The administrative burden of reporting to various government agencies on a host of matters is already high and should not be increased. If anything, this information should be provided annually (perhaps at the end of September to avoid conflict with an array of other government data requests) and only for requests received from radiocommunication carriers. Additional reporting requirements, even when imposed by federal bodies other than the CRTC, should still comply with the spirit of the Policy Direction to "when relying on regulation, use measures that are efficient and proportionate to their purpose…59

102. While Bell Mobility is not in favour of any additional reporting, in the event that the

Department decides to proceed with the proposal to implement this requirement, there should

be a clear understanding, for all concerned, of each of the data elements being requested. This

point was further elaborated in Telus' comments:

Furthermore, for some of the elements in the proposed reporting standard, there is no common understanding of the terms of reference. The date the PIP request was sent does not coordinate well with the proposal to create a PIP database (another administrative burden of limited utility). The Offer to Share may or may not include alternative elevations provided by the tower owner, depending on how the tower owner frames the response. The information on why a request was withdrawn or denied will typically not be available to one of the parties, and if they do record the information, their records may not coincide. As such, TELUS disagrees with this proposal. However, should this proposal be implemented, TELUS asks that Industry Canada provide clear guidance on the terms of reference and a transition period so that all carriers have the ability to set up the

59 SaskTel, comments, DGSO-001-12, 14 May 2012, paragraph 53.

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record keeping requirements that are entailed by this proposal. TELUS would propose that an implementation period of six months be included.60

103. For the reasons cited previously, the Company does not see the need for these reports

to be filed at all. We also do not agree with the assertion made by Rogers61 that the reports

should be filed on a quarterly basis instead of on a bi-annual basis.

104. Bell Mobility remains of the view, as expressed in our initial Comments, that as the

intended purpose of the requirement to file semi-annual reports is unclear; as is the purpose for

which it would be used by the Department, we do not support this proposal. Further, given the

lack of transparency regarding the intent of the proposal and the purpose for which the data

would be used, we do not see the requirement for such needless regulation.

105. Consistent, however, with our past practice over the past several years, Bell Mobility

continues to be prepared to provide this information to Industry Canada on an ad hoc basis

whenever the Department requires it.

5.9 Other Issues Relating to the Mandatory Tower and Site Sharing Process

5-9: Industry Canada invites suggestions from stakeholders on additional measures (other than those discussed above) to further increase the effectiveness of mandatory tower and site sharing.

106. The Company does not agree with the proposal made by TerreStar Solutions Inc.62 in

Section 5 – 9 of the Notice relating to access of underground and in building facilities.

107. It must be noted, that underground or in building systems are unique by their very

nature. These are not comprised of an infrastructure but are comprised of primarily RF cable

and amplifier distribution units. These systems are not infrastructure/tower based structures

that other carriers can simply install their respective equipment on.

108. Bell Mobility believes that sharing the existing distribution system will introduce

significant system degradation, technical complications as well as cross system interference.

Sharing of an in-building or underground system requires that the RF design be done jointly.

One cannot simply assume that because a system exists that it can easily be expanded to

60 Telus, comments, DGSO-001-12, 14 May 2012, paragraphs 65 and 66. 61 Rogers, comments, DGSO-001-12, 14 May 2012, paragraph 74. 62 TerreStar Solutions Inc., comments, DGSO-001-12, 14 May 2012, paragraphs 16 to 19.

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accommodate additional carriers. As mentioned previously, we are of the view that as these are

in most instances unique, specifically built and designed systems that do not necessarily use

infrastructure to house equipment/antennas that they are not part of the site sharing conditions

of licence. It does not seem reasonable that Bell Mobility or other licensees would choose to

make their in-building/underground strategy known to all competitors. It should also be noted,

that the costs associated with deploying in-building or underground systems are high and in

some cases exceed the cost of constructing a new tower. In addition, implementation and

design may be extremely complex and take a considerable amount of time to get operational.

109. The Company also recognizes that there may be instances wherein certain landlords

stipulate and require that in-building and underground systems be shared. In these particular

instances, we have no difficulty in sharing these systems as their design would, by necessity,

take into consideration operation by multiple carriers.

110. With respect to Globalive's63 proposal for Industry Canada to set out the acceptable

conditions that can be imposed as a pre-condition to waiving exclusive rooftop access, Bell

Mobility does not support this proposal.

111. The Company is of the view that waiving of exclusive rooftop access is sufficiently clear

in the Department's CPC 2-0-17 - Conditions of Licence for Mandatory Roaming and Antenna

Tower and Site Sharing and to Prohibit Exclusive Site Arrangements, Section 8, Point 1 –

Page 4 which states:

1. The Licensee must facilitate sharing of antenna towers and sites, including rooftops, supporting structures and access to ancillary equipment and services ("Sites") and not cause or contribute to the exclusion of other radiocommunication carriers from gaining access to Sites. Without limiting the generality of the foregoing,

- Where the Licensee is party to an agreement that includes a provision

excluding other operators from the use of a Site, then, in order to facilitate the sharing of Sites, the Licensee must consent to waiving that portion of the agreement to facilitate a Request to Share;

- as applicable, the Licensee must consent to or, in a commercially reasonable manner, seek the consent of third parties to the assignment, sublease or other rights of access to Sites pursuant to any agreement or arrangement to which the Licensee is a party; and

- The Licensee must not enter into or renew agreements that exclude other operators from using a Site.

63 Globalive, comments, DGSO-001-12, 14 May 2012, paragraphs 79.

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112. The condition as written above is sufficiently clear and adequately addresses the issue

of exclusivity of sites and Bell Mobility believes that no modifications are necessary.

4.0 PROPOSED REVISIONS TO THE ARBITRATION REGIME

6-2-1: Industry Canada is seeking comments on the proposed revised arbitration timelines noted in Table 1.

113. In its Comments regarding the proposed revisions to the arbitration timelines, the

Company noted the Department's statement that "the arbitration process has not been widely

used." The Company stated its view that it makes no sense and offends the principle of

regulating only to the extent necessary, to make changes to rules for a process that is largely

untested. Put another way, the Comments stated, stakeholders have no evidentiary basis for

changing rules when there is no evidence the current rules are broken. Bell Mobility submitted

therefore that this proposal should be rejected and the current arbitration timelines should be left

unchanged.

114. The Company notes that Telus is of the same view, in this regard, as it notes that:

. . . TELUS' position is that the current timelines are already tight enough and that the proposal to shorten some of the current timelines is not necessary and potentially, of limited use if the new timelines are not workable. While TELUS agrees that it would be better for all parties if an oral hearing could be completed in 85 days rather than the current 98 days, TELUS suggests that shortening this timeline will simply lead to the arbitrator adjusting the timeline to accommodate parties as necessary. TELUS' position is the same for a written hearing, wherein IC proposes to reduce the timeline by 15 days. Therefore, TELUS recommends that no changes be made to the current arbitration timelines.64

115. Bell Mobility concurs with Telus' recommendation that no changes be made to the

current arbitration timelines.

6-2-2: Industry Canada is seeking comments on the proposed new text below to be incorporated into the arbitration rules. Industry Canada also invites suggestions from stakeholders on any other clarifications which would further increase the effectiveness of Industry Canada's Arbitration Rules and Procedures.

64 Telus, comments, DGSO-001-12, 14 May 2012, page 28.

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Text to be added to the Arbitration Rules in CPC-2-0-18 (new text is in bold):

Rule 2.1: The Rules apply to disputes (other than disputes regarding technical feasibility) between Parties preventing them from agreeing upon the final terms and conditions of a Site Sharing Agreement or Roaming Agreement. The Arbitration Tribunal may hear together and consolidate disputes relating to more than one Site Sharing Agreement or Roaming Agreement.

Rule 11.8: At any time during the arbitration process, the Arbitral Tribunal may require any Party to provide further evidence or submissions, including information on comparable terms and rates, in such a manner as it determines.

Rule 12.5: (new rule) An award under these rules does not create a binding precedent in relation to other disputes.

116. Regarding the proposed change to Rule 11.8, the Company's Comments noted that the

proposed revision would entitle the tribunal to require any "Party" to provide evidence. The

Company noted that it has several concerns relating to this notice, and the need to ensure

reasonable measures are taken to maintain the confidentiality of sensitive commercial

agreements. In terms of notice to third parties, when an Arbitral Tribunal is seeking further

evidence and the evidence includes third party agreements, those third parties must be

provided notice of the motion to disclose such information and a reasonable opportunity to make

submissions to the Arbitral Tribunal in order to safeguard the confidentiality of their confidential

information. The Company continues to adhere to this view.

117. The Company's Comments also noted that Bell Mobility was recently made aware, after

the fact, of just such a disclosure motion in an arbitration to which it is not a party, but where

one of its confidential commercial agreements has been disclosed to one of the parties. In this

regard, Bell Mobility's Comments acknowledged that while the members of the tribunal need to

have access to commercially relevant agreements and other related evidence, the opposite

party to the arbitration does not. Bell Mobility noted in this regard that Binding Arbitration was

identified by Industry Canada as an approach consistent with the settlement of commercial

disputes. Private commercial binding arbitrations do not, the Company noted, require one party

to disclose its confidential and commercially sensitive information to third parties and there is no

basis for doing so here. The Company remains strongly of this view. The critical point in this

regard is as follows. The third party which obtained access to the Company's commercial

information could very likely assert its right to mandatory roaming (or tower sharing) with Bell

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Mobility in the future and, in effect, the Arbitral Tribunal has provided that third party with a

"discovery" of Bell Mobility information that it would not otherwise have any right to acquire. The

Department must be vigilant in ensuring that only the Tribunal, and not third parties, obtains

access to this confidential commercial information. Accordingly, Bell Mobility requests that

Industry Canada should clarify the Industry Canada Arbitration Rules (ICAR) that commercially

sensitive and confidential agreements and related evidence, while made available to members

of the tribunal, shall not be provided to opposite parties to the arbitration.

6-3: Industry Canada invites suggestions from stakeholders on measures (in addition to those discussed above) to further increase the effectiveness of the arbitration process for mandatory tower/site sharing and roaming.

118. The Company's Comments recommended a change to ICAR Rule 9.2 which states the

Arbitral Tribunal will consist of one arbitrator unless the Parties agree to a three arbitrator panel.

The Company proposed, and continues to recommend, that the rule be reversed. In other

words, there should be a presumption of three arbitrators, unless the Parties agree to depart

from this default principle and agree to conduct their arbitration before a single arbitrator. As the

Company noted a three-member panel, working on the basis of a simple majority, brings a

greater scope of experience to the matter and diminishes the risk of an unreasonable final

ruling.

5.0 CONCLUSION

119. The Company's Comments concluded with a recommendation that the Department

needs to be vigilant in adhering to its standards of relying on market forces to the maximum

extent and regulating only when and to the extent necessary in order to guard against

"regulatory creep". Bell Mobility notes that the record of this proceeding bears out the need for

that vigilance. The Company submits that Industry Canada should resist calls for extensive

regulatory intrusion into the competitive wireless industry and instead continue to allow market

forces to drive innovation and growth in this important sector.

120. The Company appreciates the opportunity to file these Reply Comments and looks

forward to the Department's determinations in this regard.

All of which is respectfully submitted.

*** End of Document ***