[dalmond]

Here's (http://www.scribd.com/doc/48179304/T-26-10-Judgment) the 60 pages of reasons and decision by the judge.

Boils down to the Governor in Council cannot read in policy not already in the Act.

 

[scrooloose]

Some of you should be over in the UBB thread supporting the CRTC decision too!

Harper took a short cut to get a little competition into our wonderfully locked up Canadian telecommunications industry, knowing full well the outcome if it went to the courts. They rolled the dice. So now if they're forced to change the law they'll need the support of the opposition parties. If Canadians support a more competitive telecommunications industry then the opposition will have no choice but to support Harper. If not, shutdown Wind Mobile and we go back to the status quo. If the Tories tried to change the law first, it would have never passed with all the opposition bickering. Harper has forced the issue if nothing else. Sometimes the system needs a cowboy.

-Mike

 

[Rockjock]

Some of you should be over in the UBB thread supporting the CRTC decision too!

Harper took a short cut to get a little competition into our wonderfully locked up Canadian telecommunications industry, knowing full well the outcome if it went to the courts. They rolled the dice. So now if they're forced to change the law they'll need the support of the opposition parties. If Canadians support a more competitive telecommunications industry then the opposition will have no choice but to support Harper. If not, shutdown Wind Mobile and we go back to the status quo. If the Tories tried to change the law first, it would have never passed with all the opposition bickering. Harper has forced the issue if nothing else. Sometimes the system needs a cowboy.

-Mike

Mike it is not just about cellular. Competition by bending the rules. By hook or by crook? This goes across the board. Globalive was warned they were not compliant and they did nothing, they were told that all of the debt was held by Orascom and they should remedy that.. they did not. and now they will cry foul? Change the laws? Hmm interesting.. but how about changing them for the next auction. Why should Wind benefit for some back room deal and the other new players not? Do take a moment and apply this to something else. We all agree to play by the same rules and at the last moment I decided that I am better than you and I will have the rules bent for my benefit. Then it comes to light and I begin to cry foul.. sure I cheated, yes I bent the rules and yes it was not fair.. BUT I will still complain.

Now I was under the impression that everyone knew what the ownership rules were, that all the new players knew how much foreign control/ownership/control they could have? So why did not one tell wind all this? Why were they not told!!! Oh wait.. they were.. they just felt the rules did not apply to them??

 

[U]

If Canadians support a more competitive telecommunications industry then the opposition will have no choice but to support Harper. If not, shutdown Wind Mobile and we go back to the status quo. If the Tories tried to change the law first, it would have never passed with all the opposition bickering. Harper has forced the issue if nothing else. Sometimes the system needs a cowboy.

-Mike

Even if the opposition agrees (and we all know that's not a given) how long would this take anyway? Rewriting the Telecom Act sounds like a multi-year effort to me. I could be wrong of course but the government usually isn't a model speed and efficiency...

 

[robsaw]

Globalive WAS told they were compliant by Industry Canada when bidding on the spectrum auction. Then they were told by the CRTC when it came to final licensing they they were not compliant (after several months of informal questioning and modest changes to WIND's ownership structure). The problem is that IC's decision was basically an "opinion" as they don't have quasi-judicial status with respect to spectrum auction, whereas the CRTC has quasi-judicial status in many areas, including this particular case.

So, given the history, it wouldn't be unreasonable to assume that the Fed's will do one or more of: appeal, revise the legislation, pass a special act just for this case, or ? I can't see the Fed's providing bridge-funding while WIND seeks other Canadian investors to comply with the Act and CRTC decision as written.

 

[Rockjock]

Rob excellent point! but just 1/2 the point. Globalive was told they would have to pass both standards. IC standard and the CRTC standard. I have asked you this before. How is it that the other new entrants were able to secure funding, keep the content within the rules and pass both standards? Since all the new entrants knew they would need to be compliant, were the people employed by the other entrants smarter than those of Globalive? Were the rules written in some long lost ancient sand-script that Globalive could not understand? How is it Globalive needed some back room deal, that was subsequently sealed so that the details never see the light of day so they could come to market??

But lets make it far more simple. Why do you feel that the rules need to be changed to accommodate Wind while the other entrants had to adhere to them?

 

[ScaryBob]

Either Globalive needs to change the way they are operating or the government needs to change the law. It's as simple as that. I agree with the court ruling. Canadians don't want MPs deciding who can break the law and who can't. There is enough government corruption already without that. OTOH, good luck getting more competition and investment in Canada after this fiasco.

 

[Rockjock]

Bob I do not see that as a problem at all.. many companies have come to Canada and have done quite well. The rules for ownership have worked and continue to work. This whole wind joke could have been solved right from the get go if Globalive had gotten funding. Public did it.. Mobli did.. so did videotron.. are they better than wind? smarter? The CRTC told them as much.. fix the control issue and we are good.. they did not.. yet again the CRTC said gents Orascom still holds all the debt.. fix it.. they did not.. then some back room deal happens and they are allowed to go to market... fair? just? not really..


If the other entrants could follow the rules why could Globalive not? If they could all get funding and stay with in the control issues guidelines why could Globalive not?

I wonder how did VW, Porsche, Volvo, Toyota, Bosch, Philips, Honda, Snap-on, wallmart, cosco, lafarge, bass pro shops and the list goes on make it so they could set up shop here? Did they all know tony clements? Did they get back room deals? No they followed the guidelines and wanted to do business here. So lets bend them so some guy who's business plan was so good, so revolutionary, so spectacular, so overwhelmingly genus like that he was laughed out of banks, trust companies and investment firms. Yes lets!

 

[TorontoColin]

Work within the laws to become compliant? Were they not supposed to be compliant from the beginning? Did the CRTC tell them several times they were not compliant? This is not just about wireless, the rules can not be bent at a whim?

That's irrelevant now. They have 45 days to make themselves compliant. That's now all that matters to their continued existence.

And I have it from people in wind that wind is running on a skeleton staff, but the fact that they are swamped NOW does not explain why the call centers were outsourced months ago.

The first time they were swamped they outsourced to the Peterborough call centre. That worked well enough, so the next time they were swamped they outsourced to an Egyptian call centre (just one). Apparently they weren't nearly as happy with the result, so they are looking at local options now, preferably in-house.

Indirect equity? Orascom owns the equipment. Orascom bought the equipment, Orascom shipped the equipment and Orascom paid to have the equipment installed. .. So yes Orascom owns it.

That is not the way indirect equity works. Globalive bought those things with the money Orascom invested. They cannot simply take their equipment. In the event of bankruptcy they would become the largest creditor, assets would be liquidated, and they would get their allotted amount. Now sure they could work out some complicated scheme where by Globalive sells it to Orascom and uses the money to pay Orascom for their debts, but I'm not even sure if that's legal.

Now why would the government buy Wind? I mean there are provisions in place if you do not comply. You would have the government run wind until they sell it? Interesting idea.. flawed but interesting.

What I have to ask is.. you seem to agree that Wind broke the rules and you want someone to bail them out. Why is this?

The government might buy Wind to save face and to keep the competition they so desired alive. It would more likely work like the auto bailouts rather than full-scale takeover. Personally I want Wind to survive because they're helping lower mobile rates in Canada. Without the combined marketing and work of the new entrants there is no chatr for example.

 

[timlocke]

I wonder how did VW, Porsche, Volvo, Toyota, Bosch, Philips, Honda, Snap-on, wallmart, cosco, lafarge, bass pro shops and the list goes on make it so they could set up shop here? Did they all know tony clements? Did they get back room deals? No they followed the guidelines and wanted to do business here. So lets bend them so some guy who's business plan was so good, so revolutionary, so spectacular, so overwhelmingly genus like that he was laughed out of banks, trust companies and investment firms. Yes lets!

Rockjock, the difference is that the companies you mention were NOT in the "space" reserved by nationalists for Canadian companies...no matter how much some other car companies etc. would like to have stopped them coming here.
This situation is more analogous to: Publishing where Amazon .ca are being allowed to "break the rules" and I am surprised that has not caused a major fuss, or in another sense, the Emirate airline dispute.

I don't think that the Telecom Act can be changed quickly and nor should it be rushed. ( When the wireless phones parts of it are changed I'd like to see some serious competition in here. Orange, Vodaphone, T-Mobile. People with deep pockets.)

 

[Dr.Dave]

Thanks to dalmond for posting the court decision. Paragraph 107 says:

The Governor in Council has in many respects adhered to and acknowledged the Canadian telecommunication policy objectives as set out in section 7 of the Act. However, the Governor in Council has stepped outside those provisions by inserting a previously unknown policy objective into section 7; namely, that of ensuring access to foreign capital, technology and experience. Secondly it erred by limiting its Decision to Globalive only.

I'm not a lawyer and I just skimmed the doc, but it looks to me that the court didn't say that Globalive wasn't Canadian-controlled. The court said that one of the reasons the cabinet used was not in the Telecom Act (ensuring access to foreign capital, technology and experience). If the cabinet had just left that clause out and not limited the decision to Globalive, I think could have approved the cabinet decision.

I wonder if the cabinet could modify it's decision and reissue it to comply with the court's ruling.

 

[JohnnyCanuck]

Not sure they can modify the ruling. Not sure they will. I think this is off to the Federal Court of Appeal.

That said, I think the Court got it absolutely right. They authority of Parliament has to trump that of Cabinet. Parliament passed a law and the Cabinet is bound to follow the law.

 

[Rockjock]

Coilin they have had 14 months and 45 days to become compliant. And they have not.
How were they swamped at the call centers? I find that so amusing. Was the network so bad they were called day and nite? Come on! They outsourced to save money.
Globalive did not buy the equipment, Orascom Telecom bought and installed the equipment. At 1 point Tony said that his experts were installing the equipment and he went on about the experts etc.. but the question still stands.. how is it that 3 of the 4 new entrants were able to get the right funding, be compliant, meet both the CRTC and IC standards while Globalive was not able to?

Saving face? You are kidding right? Tony Clement is the one with egg on his face. All this time Globalive could have improved its position and made itself compliant.. I do recall after the back room deal was reached it was stated an appeal would be coming. To me that says hey you dodged the bullet but they are going to take another shot... so lets get all of our paperwork sorted!

Tim this rule was not just for telecom it was for everything. Do think about that for a moment. Any company that sets up HAS to abide by the same rules. It was foreign control not telecom foreign control. So I ask you. How were these and other companies able to comply and Globalive could not?

Vodafone and the others would love to come here! But I think the idea of a carrier owning the frequency is madness. Look at Europe where the government owns the frequency and then the carrier rent space and they all compete.. Why not buy the frequencies from the big 3 make them rent it from you and allow other companies to compete.. Now thats competition.. !!!

 

[TorontoColin]

I don't understand your point. They now have 45 days to become compliant. As I said, the past year or more is irrelevant to their continued existence. I agree with the courts that they weren't compliant, but it doesn't matter. What matters is that now they must somehow find a way to become compliant.

The outsourced call centre to Egypt was absolutely to save money. That was never in question.

The rules for telecoms are very different than other businesses. While they all still have to meet guidelines to operate here, businesses like Honda or Wal-Mart are foreign owned and it's not an issue. They also require far, far less start-up capital than a wireless network.

 

[Rockjock]

Colin I have to say you have no idea what you are talking about. The foreign ownership criteria is the same across the board. My point is Wind knew it was not compliant from day 1. So would you not think it would be prudent knowing that a appeal was filed that you should become compliant? Yet again you do not answer my simple question. How is it the other 3 entrants were able to abide by the rules and come to market? Why must we change the laws to accommodate 1 party while the others easily were able to meet the standards and proceed? So you agree that they were not compliant, but that does not matter now? So you are saying that its ok that they broke the rules and now that they are caught they should be allowed to become compliant? That is like catching someone driving with out a license and them saying oh its ok I have 45 days to get my license, or opening a bar with out a liquor license and telling the inspector that you fully intend to get one eventually. Colin I can not believe you believe what you are saying.


Was Globalive compliant? No
Should Globalive have been allowed to go to market.. No, they were not compliant.
Was it fair the other 3 entrants HAD to abide by the rules while Globalive did not? No
Was it fair that the bad room deal was made and then sealed so the details could be kept secret? No. So now that they have been found non compliant you want the laws to be changed? Colin really?

Colin you can not have it both ways.. you said the call centers were swamped.. this was pre 100k thats a joke! the wait times are still insane.. so what had changed?

clearly you are a wind fan boy on this matter. As matter of law Globalive broke the rules, the apple does not fall from the tree, Orascom the owners of Wind break them all the time.

 

[sk1d]

My guess is, Shaw comes in with enough cash to make them "Canadian" enough. Everyone wins, Wind stays in business, Shaw gets a cell phone network for a song, and the government gets to continue doing nothing worthwhile.

 

[TorontoColin]

The foreign ownership criteria is the same across the board.

Not true at all. Plenty of businesses are allowed to operate in Canada despite being 100% foreign owned. The difference is that Wal-Mart isn't subject to CRTC regulation. They set up a Canadian division with a Canadian president and CEO, but Verizon could do that and still wouldn't be allowed to operate in Canada.

My point is Wind knew it was not compliant from day 1. So would you not think it would be prudent knowing that a appeal was filed that you should become compliant?

Of course, and I know they looked for Canadian funding and couldn't find it in the scale they needed.

How is it the other 3 entrants were able to abide by the rules and come to market?

I'm not sure as to which 'three' new entrants you are referring. If you mean Public and Mobile, they were done on much, much smaller scale and needed far less funding. If you're referring to Shaw and Videotron, they represent companies already established in the Canadian telecom sector and can use the funds and assets from their other divisions as the start up capital for their wireless divisions. And again, they're not on the same scale as Wind.

To be honest, I don't really care that they broke the rules, that's for the courts to handle. I have nothing invested in any of them and Wind's presence makes rates cheaper for me. Maybe they should be fined or something, but simply shutting them down obviously isn't a practical outcome. The courts made their decision, now we'll see what happens. I'm hoping for an outcome which favours consumers.

you said the call centers were swamped.. this was pre 100k thats a joke! the wait times are still insane.. so what had changed?

If you want a better timeline, Wind found their call centres were at capacity before they launched in Vancouver, Ottawa, and Edmonton, so they hired a whole bunch of new CSRs. Following those launches they quickly realized that their one call centre wasn't nearly enough so they contracted the second call centre in Peterborough. Pleased with the results, when that one reached capacity they hoped to do the same thing only cheaper by contracting the Egyptian call centre. They aren't pleased with that one, and they're apparently now much more wary of contracted call centres, so they're now trying to add more in-house, but that takes much longer and they are already overloaded. Keep in mind that they're adding subs at a fairly high rate. I'm not saying they haven't made mistakes with the call centres, I'm saying these aren't the actions of a company on the verge of leaving.

 

[TorontoColin]

Wind has posted a response on their blog:

Many of you have heard the news about the Federal Court's decision this past Friday. At WIND we are pretty used to taking on challenges and we will not shy away from this one. We will not be deterred by our competitors efforts to slow down our business. We have our actions to take to continue to bring competitive choice to Canadians. We plan on providing you great service at a great price for a long time.
Here are the facts of the situation: on Friday, the Federal Court released a decision concerning an application brought by our competitors, Public Mobile and Telus. The Court ruled that the Cabinet decision that confirmed our right to operate back in 2009 contained two errors and so should be quashed. This decision does not have any immediate impact on our customers – it’s business as usual for WIND as we resolve this in the Courts.
As a new entrant, this isn’t the first challenge that we’ve faced. We haven’t backed down when dealing with any of the challenges we’ve been confronted with since entering the auction for our wireless spectrum licenses in 2008, and we aren’t going to start now.

Followed by a list of the things they've accomplished and how they're not going away, it's all mostly fluff.

 

[robsaw]

C

Was Globalive compliant? No
Should Globalive have been allowed to go to market.. No, they were not compliant.
Was it fair the other 3 entrants HAD to abide by the rules while Globalive did not? No
Was it fair that the bad room deal was made and then sealed so the details could be kept secret? No. So now that they have been found non compliant you want the laws to be changed? Colin really?

Was Globalive complaint - No, Yes, No - When CRTC made their decision - no; at the time the Cabinet made their decision - yes; at the time the Federal Court made their ruling - no. Legally, without any historical perspective they were never compliant, but you make a business decision on the facts at the time with assumptions for certain risk not a crystal ball.

The Cabinet decision wasn't a backroom deal. It is by legal tradition that Cabinet decisions are not public.

Desiring to change a law now that is not in keeping with the competition policy of the gov't with respect to Telecom is perfectly sensible.

Fairness has nothing to do with law, just can't be arbitrary, vague or otherwise unconstitutional. The Telecom Act itself, in particular the clauses that supported the CRTC decision are subjective and vague - perhaps a point that will see them tossed in SC eventually if not amended by Parliament first.

 

[Rockjock]

Rob they never were compliant. That is clear. They were told by the CRTC they were not.. not just once but twice.. Yes again I have to ask. How where the other new entrants able to proceed while Globalive was not? the backroom deal is just that.. once it happened the details were asked about the it was sealed. That to me is shady. Now it comes to light that Orascom has 90% of the debt. this is just unwinding more and more.. Tony was just on the radio.. 800 employees and 200k in subs? those numbers are different from his last statement... was he mistaken? naaa he got the fax from Orascom..

The law sould apply to them all.. Should Wind get a gimme?? a mulligan..?

Please put your wind handset down.. you are inside and can not get a signal..

Wind is not compliant. So as I see it there are 2 options. 1 Become compliant. Or 2 change the law. They have had more then 14 months to do so and have not.. and why change a law that 3 of the 4 new entrants had no problem with? No name calling just answer that simply.