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Spectrum Transfer Policy To Test Government's Resolve on Wireless Competition

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Wednesday April 17, 2013
The issue of spectrum transfers has generated considerable attention over the past few weeks as Industry Canada prepares to unveil a transfer policy in response to the proposed sale of spectrum by Shaw to Rogers. Industry Minister Christian Paradis has made it clear that he is uncomfortable with the proposed sale, acknowledging that the intent of the 2008 spectrum auction set aside was not to have the spectrum end up in the hands of incumbents. While the incumbents and their supporters are raising the concerns about market uncertainty and potential lawsuits, the reality is that the government's policy on the Canadian wireless market has been clear since 2007.  Despite the efforts of the CWTA and the incumbents to convince politicians and the public that Canada is a competitive market, the government believes more competition is needed.

The Conservatives' policy on wireless competition solidified in 2007, when Prime Minister Harper shuffled then-Industry Minister Maxime Bernier (who most believed was opposed to government intervention in the form of a set-aside or other measures) with Jim Prentice. Within months, Prentice unveiled the government's policy with the headline "Government Opts for More Competition in the Wireless Sector."  In case there was any lingering doubt about where the government stood, the release noted:

Recent studies comparing international pricing of wireless services show Canadian consumers and businesses pay more for many of these services than people in other countries. These services are key to strengthening the competitiveness of Canadian business.

In the years that followed, the government continued to support measures for greater competition - backing the Wind Mobile entry despite concerns about foreign financing ("The policy of our government is to encourage choice and competition in wireless and Internet markets. Ours was the government that set aside spectrum during the 2008 auction to allow new entrants to compete. New entrants mean more competition, lower prices and better quality services for Canadians.") and later relaxing foreign ownership restrictions for the smaller players in the telecommunications market ("the goals remain steadfastly the same: increased innovation, increased competition, better service and better prices for consumers").  More recently, it announced the next spectrum auction rules with caps on spectrum ownership designed to limit the ability of the incumbents to control all the newly issued spectrum.

Despite these measures, the policies have had only limited success. Prices have declined only modestly and the vision of robust competition from a strong fourth carrier remains a distant hope (though the situation may be better in Quebec with a stronger fourth carrier and more aggressive provincial regulation). Moreover, there is a sense that the new entrants may throw in the towel, cashing out to the incumbents and leaving Canada with higher prices and further reduced competition.

The responses to the recent consultation on spectrum transfer makes it clear that half-measures will no longer work.  Past efforts have included set-asides without fully addressing roaming and tower sharing; foreign investment without fully opening the market, or new spectrum with caps that do not allow for a robust competitor. The response to spectrum transfer issue suggests that the government should either go all-in or it should be prepared to declare that its policies have failed.

The incumbents are unsurprisingly opposed to further government policy measures. For example, Bell is most vociferous in its opposition as it is reluctant to even respond to Industry Canada's questions. It is opposed to a policy aimed at creating four competitors and believes that the government should encourage spectrum transfers for their most optimal use (never mind the hoarding and non-use of spectrum by the incumbents). Further, Bell is against any caps or other measures designed to foster greater competition.  Rogers is also opposed to a competitive assessment and spectrum concentration analysis. However, should the government implement such measures, it argues that it should only apply to future spectrum (thereby grandfathering its deal with Shaw).

On the new entrant side, the message is plain: either fix the competitive environment or we want out. The most obvious call for spectrum transfers comes from Mobilicity, which says the government must help to find ways to raise capital for future spectrum auctions or it should refrain from implementing any new rules on spectrum transfers. Wind Mobile and Public Mobile are more nuanced, focusing on the need for stronger policy measures to facilitate competition but making it plain that failure to do could lead to future spectrum transfers. Wind Mobile essentially says there should be no new restrictions on transfers until the government has addressed the competitive conditions in the Canadian marketplace. It points to four:
  • the forthcoming spectrum auction rules will not allow non-incumbents to gain sufficient spectrum to support LTE
  • non-usage of spectrum, such as in the case of Shaw, should be revoked and made available to the new entrants
  • active regulation is needed to address high domestic roaming charges
  • increased regulation is needed to deal with tower co-location
Public Mobile emphasizes some of the same issues, including the problems with the forthcoming 700 MHz spectrum auction (insufficient for a non-incumbent to develop an LTE network), the need for retaining set-asides in the AWS spectrum, and ensuring that all future spectrum auctions account for spectrum advantages held by the incumbents.

So where does that leave the Canadian government?

Following the incumbents' advice is a non-starter. For the past 5 1/2 years, the government has made it clear that it believes the Canadian wireless market is uncompetitive, resulting in high prices for consumers and businesses.  Given the ongoing competition concerns, doing nothing is not an option. That said, neither is maintaining the current approach of half-measures. It is time for the government to go all-in with all the policy levers aimed at fostering increased competition. That will require:
  • complete removal of foreign investment restrictions
  • stringent restrictions on transferring set-aside spectrum to incumbents
  • future set-asides and limits in spectrum holdings by single entities (as is being discussed in the U.S.)
  • enforcing use-it-or-lose-it rules on spectrum so that unused spectrum is reallocated
  • enforceable measures on domestic roaming and tower sharing so that new entrants have a viable path to competitiveness
  • increased CRTC regulation of consumer wireless issues
  • encouraging the Competition Bureau to play a more active role in sector
The CWTA and the incumbents will scream, but the public will strongly support the measures. Industry Minister Christian Paradis said in March that the government "has worked hard to increase competition in the Canadian wireless sector." Unless Paradis is prepared to take further policy steps, the efforts of the past few years may soon be wiped out.
Comments (5)add comment

Jean-François Mezei said:

...

What is happening right now showcases how fragile the HOPE for competition is since the government had put all its eggs into the "new entrant" basket.

And right now, the new entrants are a basketcase, threathening to disapear and jeoperdize the government's plans to avoid having to regulate the wireless industry.

By timing the 700mhz auction, the CRTC wireless code of conduct and the expiration of "you can't sell your spectrum" rules so close to each other, the government ended up giving new entrants a huge amount of blackmail power which is likely what we are seeing right now.

However, the government has only itself to blame, thinking that simpply rigging an auction to allow new entrants to get spectrum would be enough and that afterwards, the government could sit back and watch competition grow by itself without any further inervention.

Things got so bad that provinces started to legislate to protect their consumers from the wireless abuses.

Notwidthstanding the current new entrant tamper-tatrums, the big question is whether Industry Canada and the CRTC will change their "hands off" policy and agree to be more interventionist to foster competition even between incumbents.

It is clear that merely allowing new entrants to exist via spectrum auctions is not enough to break the incumbent's over 90% control on the market.

Only time will tell whether the current government will reluctantly agree that a greater form of intervention is required to not only allow new entrants to thrive, but also reduce the monopolistic behaviours of the incumbents.

Since the 1700 spectrum turned out to be a dud for 3G the new entrants were greatly disadvantaged due to reduce handset selection.

One way to paliate this would be to tell incumbents that they need to release some 850 or 1900 for every chunk of 1700 they acquire from new entrants. This spectrum could then be distributed for free to new entrants who would then ne able to use standard 3G phones and deploy LTE on 1700.

In terms of 700, there is a danger in giving it only to new entrants: insufficient demand will greatly reduce handset availability on 700. The best way to ensure new entrants can thrive is that they are given the same frequencies as incumbents actually use. For 3G, this means 850 and 1900, and for 4G it is 1700 and 700.

April 17, 2013

Joah Moat said:

...
What about antitrust violation. Or is antitrust not a work anymore. It's quite obvious that there is much monopolizing by the big 3 with their pseudo kiosks they set-up opposite wind and moblicity. Advertising under a different name is false advertisement.

Critical mass, where are though. Will you happen in my lifetime? Did I dream of this Distopia? heh heh, how is it that I feel so against this corporate usury, no one is getting killed. But perhaps it isn't really about the getting killed, but the fact that we are just spinning our wheels, content to be filled with swill, like swine in a warm pen. Meanwhile our prodigal days go by with us hanging on to our chemotherapy and plastic bills. -sigh
April 18, 2013

WLF68 said:

...
It doesn't matter how many companies have X amount of spectrum. If the infrastructure/tower is not shared properly, then it's next to impossible for entrants to compete outside of the cities.
April 19, 2013

Un-Trusted Computing said:

...
Thanks for a great assessment Michael, and JF your contributions to the discussion are wonderful as always.
April 19, 2013

Pat said:

Utter failure
We need set aside spectrum that cannot be sold to the incumbents like what Shaw is trying to do with Rogers. If someone will not use their spectrum it goes back to the government to be auctioned off again. There should be tax credits for all new entrants to put up new towers because the incumbents dropped their prices to prevent people from leaving thereby preventing new incumbents from gaining market share since the costly part of expanding coverage became economically unfeasible to build new towers. The only thing stopping me from switching to Wind or Mobilicity is the fact they don't have towers (and therefor good reception) in my area. I would switch in a second if they were (as would most people).

The government sets the rules through legislation as these are public airwaves. Its time the government takes them back to create real competition instead of pretending to be for it as we consumers get swindled again.
April 22, 2013

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