Wind urges CRTC to overturn its roaming decision

Wind Mobile isn’t backing down from its claim that Rogers Communications Inc. is unlawfully denying customers of the wireless startup the ability to seamlessly roam across its network.

In June the Canadian Radio-television and Telecommunications Commission (CRTC) dismissed Wind’s allegation that Rogers discriminated in giving seamlesss roaming to its new Chatr wireless service and not to competitors.

But on Tuesday, Wind asked the commission to overturn its own decision.

In an interview Simon Lockie, chief regulatory officer for Wind’s parent, Globalive Wireless Management Corp. admitted that it’s difficult to ask a regulatory body to reverse itself.

Still, under law “they have to be open to examining decisions that they got wrong,” he said.

And in this case “they got it wrong in a way that we think is very troubling with respect to undue preference.

“There’s a well-established two-part test [for determining discrimination] and in our view the way they applied this time does significant damage to the test.”

If the commission finds there has been a preference — and Wind believes it has — the burden should have been on Rogers to prove it wasn’t undue, he added, an argument Wind will make before the commission. But the carrier didn’t have to because the CRTC concluded Rogers hadn’t done anything wrong.

Under the Telecommunications Act, a party involved in a CRTC decision can ask the telecom regulator to review a decision. It can also appeal to the Federal Court, or, in some cases, directly to the federal cabinet.

The issue involves a right that a number of the new wireless entrants feel is vital to their survival: the ability of a customer to roam onto a competitor’s network in the middle of a call without being cut off – in other words, seamlessly.

Because incumbent carriers like Rogers [TSX: RCI.A], BCE Inc.’s Bell Mobility and Telus Communications Co. [TSX: T] have had a head start on their networks, Industry Canada said they had to negotiate deals with startups like Wind, Mobilicity, Public Mobile and Videotron roam on their networks for five years. That would give the new entrants time to build networks of their own. Most signed with Rogers for technical reasons. Wind says it tried and failed to get Rogers to agree to seamless roaming.

But the government didn’t make seamless roaming mandatory. So if a Wind subscriber is in the middle of a call in a Wind area, as they cross the invisible border between coverage zones the Rogers network drops the call. The subscriber has to re-dial to continue the conversation. The subscriber can roam, but the dropped call – the industry calls it a hard handoff — is inconvenient.

Meanwhile, Wind complains, Chatr customers have seamless roaming – what the industry calls a soft handoff — which it says means Rogers gave its service undue preference.

In written submissions to the commission earlier in the summer, Rogers dismissed the claim, arguing it has only one network. As a result, Chatr subscribers don’t roam on its network.

In its decision, the CRTC noted Wind’s agreement with Rogers doesn’t require seamless roaming, therefore it didn’t presence sufficient evidence to prove its allegation. As a result, it didn’t have to decide if Rogers gave itself an undue preference.

The commission also said it would be inappropriate for the regulator to order a carrier to provide seamless roaming.

In asking the commission to take another look at its decision, Wind has to show the regulator made errors in law or in fact. In a written submission the startup argues the regulator did that by ignoring the ability Chatr subscribers have for seamless handoffs on the Rogers network.

In addition, the brief argues, since the commission’s ruling the U.S. Federal Communications Commission (FCC) has increased the level of roaming agreements carriers have to negotiate, and the European Commission has also proposed toughening its roaming rules. Similarly, it suggests, the CRTC should follow the lead of other regulators and set rules for fairer roaming.

Finally, Wind argues that in a previous decision the commission said that where a new principle has arisen it didn’t forsee, it should exercise its discretion to review an older ruling.

It is “contrary to public policy to let the status quo stand when such circumstances

intentionally, blatantly and adversely impact competition and consumers,” the Wind brief argues. The public’s interest in the objectives of the Telecommunications Act, which sets out the goals of communications in the country, should take precedence over a private contact like Wind says it was forced to take with Rogers.

Rogers has the right to respond to the Wind application.

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