From seemingly the moment in launched in Canada, Wind Mobile argued that it was being placed at a competitive disadvantage due to unfair roaming agreements with Rogers. As a new entrant, the company was reliant on roaming agreements to offer nationwide service, yet it claimed that Rogers was tilting the playing field against it. Rogers unsurprisingly disagreed. In a Senate appearance in 2009, the company was asked directly about the issue:
Senator Zimmer: Have you had any requests from new wireless entrants for roaming and tower-sharing agreements, and how have you handled those? What is the progress on these arrangements to date?
Mr. Engelhart: I am glad you asked that question, because we have been reading in the press some grumbling by some of the new entrants, and it has left us puzzled. Mr. Roy and I, mostly Mr. Roy, have successfully concluded roaming agreements with all the new entrants who have approached us, and we did that in a business negotiation that did not need arbitration or enforcement from Industry Canada. We have also provided access to a huge number of our towers to the new entrants. We believe the government policy that requires us to make those facilities available is working, and we are proud of what we have done.
A year later, Wind filed a complaint with the CRTC over dropped calls when its customers roamed on the Rogers network, arguing that it was an undue preference since Chatr (a Rogers flanker brand) did not face the same problem. The Commission rejected the complaint, finding that there was insufficient evidence and that:
the fact that the terms and conditions of the roaming agreement negotiated between WIND and Rogers do not require seamless roaming, the Commission is not persuaded that WIND has demonstrated the existence of a preference in the circumstances of this case.
By 2013, the regulatory environment for wireless services in Canada had changed and the government was displaying a clear willingness to regulate wholesale wireless services to encourage greater competition. The CRTC began investigating the issue in 2013 with a fact-finding exercise that found:
some Canadian mobile wireless carriers were charging or proposing to charge significantly higher rates for wholesale mobile wireless roaming services to other Canadian mobile wireless carriers than to U.S.-based carriers. For instance, the rates that some Canadian carriers contracted to pay or were being asked to pay were many times higher than those that U.S.-based carriers paid, particularly with respect to data services. Further, some Canadian carriers were subject to more restrictive terms and conditions than those that applied to U.S.-based carriers.
While Rogers remained dismissive, warning against cheaper roaming agreements that it says discourage network development, those findings raised the possibility of a violation of Canadian telecom law, with the incumbent carriers granting themselves an undue preference or engaging in unjust discrimination.
Yesterday, the CRTC ruled that Rogers had engaged in unjust discrimination, charging new entrants far higher prices than those for U.S. carriers and including exclusivity clauses that prevented the new entrants from negotiating better terms with other carriers. As a result, the Commission has created a ban on exclusivity clauses in wholesale domestic wireless roaming agreements.
Further regulatory measures may be forthcoming in the fall when the CRTC conducts a more extensive review of wholesale wireless services. While the practical effect may be limited given the new legislated cap on domestic roaming, the decision provides some vindication for Wind and affirms that unlawful, discriminatory tactics were used by incumbent carriers to hamstring new wireless competitors in Canada.