Date: 20220517  
Docket: T-1335-21  
Citation: 2022 FC 726  
Toronto, Ontario, May 17, 2022  
PRESENT: Mr. Justice Diner  
BETWEEN:  
TELUS COMMUNICATIONS INC.  
Applicant  
and  
VIDÉOTRON LTÉE, BELL MOBILITY  
INC., BRAGG COMMUNICATIONS INC.,  
CITYWEST CABLE AND TELEPHONE  
CORP, COGECO CONNEXION INC.,  
COMCENTRIC NETWORKING INC.,  
ECOTEL INC., IRISTEL INC., LEMALU  
HOLDINGS LTD., 1085459 ONTARIO LTD.  
O/A KINGSTON ONLINE SERVICES,  
MULTIBOARD COMMUNICATIONS INC.,  
508896 ALBERTA LTD. O/A NETAGO,  
NEXICOM INC., ROGERS  
COMMUNICATIONS CANADA INC.,  
SASKATCHEWAN  
TELECOMMUNICATIONS, SOGETEL  
INC., STAR SOLUTIONS  
INTERNATIONAL  
INC., TBAYTEL, TERRESTAR  
SOLUTIONS INC., THOMAS  
COMMUNICATIONS LTD., VALLEY  
FIBER LTD., FIBRENOIRE INC. AND  
XPLORNET COMMUNICATIONS INC.  
Page: 2  
Respondents  
and  
ATTORNEY GENERAL OF CANADA  
Intervener  
JUDGMENT AND REASONS  
[1]  
This is a judicial review of the determination, made by a delegate of the Minister of  
Industry [the Minister], that Vidéotron ltée [Vidéotron] was eligible to bid on set-aside spectrum  
in the 2021 3500 MHz spectrum auction [the Auction]. Consistent with the prescribed process,  
the set-aside eligibility determination [the Decision] was made on April 21, 2021 and shared  
with Vidéotron, but did not become public until the results of the Auction were released by the  
Department of Innovation, Science and Economic Development Canada [ISED] on July 29,  
2021. The spectrum in question is critical for the development of fifth generation [5G]  
technology standards of cellular networks for mobile phones and other technologies across  
Canada.  
[2]  
The Decision, which permitted Vidéotron to bid on and obtain set-aside spectrum in  
British Columbia, Alberta and Manitoba [together Western Canada], is now challenged by  
TELUS Communications Inc. [TELUS] on procedural and substantive grounds. For the reasons  
that follow, I find the set-aside eligibility assessment process and the Minister’s decision to have  
been fair and reasonable, and will dismiss the Application.  
Page: 3  
I.  
Background  
A.  
Statutory Framework  
[3]  
Spectrum is a limited public resource that consists of electromagnetic waves of various  
frequencies, which facilitate the use of communication technologies and services including  
mobile phones, satellites, two-way radio and broadcasting. The Minister, to whom authority is  
conferred by the Department of Industry Act, SC 1995, c 1, the Radiocommunication Act, RSC  
1985, c R-2 and the Radiocommunication Regulations, SOR/96-484, is responsible for spectrum  
management in Canada. Management of spectrum plays a critical role for Canada, fostering the  
growth of telecommunications and ensuring that radiocommunications services, from cellphones  
to air traffic control, are properly managed and free from interference.  
[4]  
Section 7 of the Telecommunications Act, SC 1993, c 38 sets out the objectives of  
Canadian telecommunications policy, which include: rendering reliable, affordable, high quality  
telecommunications services accessible to Canadians in all regions of Canada; enhancing  
efficiency and competitiveness; stimulating research and encouraging innovation; and, fostering  
increased reliance on market forces (for s 7, and other statutory provisions referenced in these  
Reasons, see Annex A). The Canadian Radio-Television and Telecommunications Commission  
[CRTC], as prescribed in Part III of the Telecommunications Act, regulates telecommunications  
services including the approval of rates and conditions of service.  
[5]  
Section 5(1) of the Radiocommunication Act confers broad powers on the Minister to,  
inter alia, issue licenses, fix and amend their terms and conditions, and to plan the allocation and  
Page: 4  
use of spectrum. These licenses are critical to the operation of any mobile phone network and are  
issued from time to time to telecommunication service providers by way of auctions. The  
bidding process for the attribution of licenses is competitive and s 5(1.4) of the  
Radiocommunication Act allows the Minister to prescribe rules, standards and conditions  
applicable to the system of competitive bidding.  
B.  
Spectrum Licenses  
[6]  
Spectrum licenses allow their holders to use specified frequencies within defined  
geographic areas. Service areas are divided and further subdivided based on “tiers.Tier 1 is a  
single national service area covering all of Canada. Tier 2 consists of 14 large service areas  
covering the entire country, and in some cases corresponds to an entire province. For instance,  
British Columbia, Alberta, and Manitoba are each distinct Tier 2 service areas. Tiers 3 and 4, by  
contrast, consist of smaller regional, and more localized service areas, respectively. Tier 2 and  
Tier 4 service areas were relevant for the determination of eligibility to bid on set-aside spectrum  
in the Auction.  
[7]  
The 2021 3500 MHz Auction was the latest in a series of four spectrum auctions that  
have taken place since 2008. The three prior auctions took place in the decade from 2008  
through 2018, namely the ASW-1 (2008), ASW-3 (2015) and 600 MGz (2018) auctions.  
Consistent with the objectives of the Telecommunications Act, these spectrum auctions have  
included “pro-competitive measures”, intended to enhance competition among mobile phone  
service providers. The principles underlying the measures are found in Framework for Spectrum  
Page: 5  
Auctions in Canada, published in 2011 by ISED (then Industry Canada). Spectrum caps, for  
example, impose limits on the width of spectrum a particular licensee can hold.  
[8]  
Spectrum set-asides, another pro-competitive measure, reserve a certain portion of  
spectrum for carriers who do not meet the definition of “national mobile service providers”  
[NMSPs]. An NMSP, by definition, holds more than 10% of the national market share.  
Currently, there are three NMSPs - TELUS, Bell and Rogers.  
[9]  
The specific criteria for eligibility to bid on set-aside spectrum has varied in the 2008,  
2015, 2018 and 2021 auctions. In 2008, eligibility for set-aside spectrum was reserved to new  
entrants, defined as those who held less than 10% of national wireless market share based on  
revenue. In 2015, set-aside eligibility rules were much more specific. They varied depending on  
the service areas in question, and potential bidders needed to already be providing commercial  
mobile wireless services and demonstrate specific network coverage in each relevant service  
area. In 2018, eligibility requirements for set-aside spectrum related to the provision of services,  
but were less stringent and less detailed than in 2015. For example, while set-aside eligible  
bidders had to be providing commercial telecommunications service in the relevant Tier 2  
service areas, there was no minimum customer threshold or level of coverage requirement.  
C.  
2021’s 3500 MHz Spectrum Auction  
[10] The 3500 MHz band of spectrum, as mentioned above, is crucial for the deployment of  
5G mobile technology standards for cellular networks. 5G provides opportunities for innovative,  
interconnected and data intensive applications, operating at higher speeds and providing  
Page: 6  
increased bandwidth than prior standards. 5G requires large amounts of spectrum in a variety of  
frequency bands.  
[11] The process leading to the 2021 Auction and the impugned set-aside eligibility  
assessment process began in 2019. In June 2019, ISED announced a public Consultation on a  
Policy and Licensing Framework for Spectrum in the 3500 MHz Band.  
[12] Extensive consultations followed, involving broad participation by stakeholders across  
the country, including both TELUS and Vidéotron, which led ISED to make a series of policy  
decisions that would govern the Auction. In March 2020, ISED released the Policy and  
Licensing Framework for Spectrum in the 3500 MHz Band [the Framework]. This voluminous  
document sets out the policy underpinning of and ground rules for the Auction. The bidder  
application and qualification stage, which includes set-aside eligibility determinations (the  
subject of this judicial review); the bidding stage to obtain spectrum licenses; and the post-  
auction license renewal process, are all comprised within the Framework.  
[13] To promote competition for the Auction, the Framework implemented a set-aside of 50  
MHz of spectrum, consisting of approximately 25% of the spectrum up for auction, to be  
reserved for eligible service providers (which excluded NMSPs). The Framework referred to  
prior use of set-asides having contributed to growth and competiveness of regional providers.  
The Framework also referred to findings of the Competition Bureau citing the market power  
possessed by NMSPs, the high barrier to entry in certain areas, and the lower prices enjoyed by  
customers in areas where regional providers had established market share. Paragraphs 36-44 of  
Page: 7  
the Framework, in addition to other relevant excerpts referenced below, have been reproduced in  
Annex B to these Reasons.  
[14] Eligibility to bid on the set-aside spectrum was established in “Decision D2” of the  
Framework. Decision D2 limited set-aside eligibility to service providers meeting the following  
description:  
Eligibility to bid on set-aside spectrum will be limited to those  
registered with the CRTC as facilities-based providers that are not  
national mobile service providers, and that are actively providing  
commercial telecommunications services to the general public in  
the relevant Tier 2 service area of interest, effective as of the date  
of application to participate in the 3500 MHz auction. Services that  
are regulated under the Broadcasting Act will not be considered as  
“commercial telecommunications services” for the purposes of set-  
aside eligibility, however all services that are regulated under the  
Telecommunications Act may qualify.  
[Decision D2, para 64 of the Framework; emphasis added.]  
[15] It is important to note that the licenses were being issued for the more localized Tier 4  
service areas, but the eligibility criteria above refer to a bidder providing services anywhere in  
the larger Tier 2 service area. A bidder interested in obtaining spectrum in the Tier 4 service area  
of Steinbach, Manitoba, for example, need only be actively providing commercial  
telecommunications services to the general public somewhere in the relevant Tier 2 service area  
of Manitoba, such as Winnipeg, to be eligible to bid on set-aside spectrum in Steinbach  
[16] In response to concerns raised as to how “general public” would be defined, the  
Framework clarified that it could include “businesses, enterprises and institutions in addition to  
traditional ‘residential customers, and that providers who are actively offering commercial  
Page: 8  
telecommunications services to any of these consumers will be considered set-aside-eligible as  
long as they meet the additional eligibility criteria’” (at para 60, Framework).  
[17] In addition to set-aside spectrum, the Framework also imposed non-transferability  
measures. These were intended to ensure that set-aside licenses would not be transferrable to set-  
aside ineligible entities for at least five years of the license term, in order to strike a balance  
between deterring speculation for example, by bidders intending to simply resell instead of  
actually deploying licenses and awarding spectrum to entities who were positioned to use it.  
[18] Potential bidders applying for set-aside eligibility would be required to demonstrate their  
eligibility by providing relevant documentation to ISED describing 1) the services offered in the  
relevant area; 2) the retail/distribution network; and, 3) how subscribers access services and the  
number of subscribers in the area (para 64, Framework).  
[19] Section 12.5 of the Framework outlined that ISED would review the application forms  
and associated documents after the closing date for submissions of applications. During this  
initial review, ISED would identify any errors in the forms and determine whether any additional  
information related to affiliates or associated entities was required. For the purposes of set-aside  
eligibility applications, ISED would assess eligibility to obtain licenses in Tier 4 service areas  
based on the relevant Tier 2 service areas of interest. ISED could also make written requests for  
further information and could verify the information that was provided. Applicants who failed to  
comply with the written requests would be rejected. Rejected applications, including cases where  
Page: 9  
a response to a request was received but found to nevertheless be deficient, would be returned to  
the Applicant (paras 435-440, Framework).  
[20] In December 2020, ISED published responses to questions, and updates about the  
Auction in Responses to Clarification Questions on the Policy and Licensing Framework for  
Spectrum in the 3500 MHz Band the [Clarification Document]. On March 15, 2021, the  
Clarification Document was updated to provide the following question and response regarding  
set-aside eligibility:  
QUESTION 3.3: How does being an affiliate affect an  
applicant’s set-aside-eligibility?  
RESPONSE 3.3: An applicant may be eligible to qualify as a set-  
aside-eligible bidder based on the eligibility of its affiliated entities  
or, where an applicant is a partnership, on the eligibility of the  
partners who control the applicant.  
As long as the applicant itself is not affiliated with or controlled by  
a national mobile service provider, and where one or more  
affiliates or controlling partners of the applicant is registered with  
the Canadian Radio-television and Telecommunications  
Commission (CRTC) as a facilities-based provider, that applicant  
may be qualified as set-aside-eligible to bid in all licence areas  
where an affiliate or controlling partner is actively providing  
commercial telecommunications services to the general public in  
the relevant Tier 2 service area, as set out in section 6.1 of the  
Framework.  
All applicants must disclose their affiliates and, where applicable,  
any controlling partners of the applicant in their application form.  
Applicants who wish to be considered as set-aside-eligible bidders  
will have to indicate and explain for each licence area, if they are  
directly eligible or through which affiliate or controlling partner,  
they are eligible.  
[Emphasis added.]  
Page: 10  
[21] ISED’s assessment of applications was a closed process, as had been the case in previous  
spectrum auctions. This was to ensure the integrity of the 3500 MHz Auction, and to protect  
confidential information provided in the applications. The Clarification Document indicated that  
ISED would not release, to the public, post-auction documentation regarding where bidders  
applied, or the basis upon which successful applications were granted. Response 2.11 of the  
Clarification Document provided:  
…as in past auction processes, a list of all qualified bidders, along  
with information related to their beneficial ownership, affiliates,  
and associated entities, will be made public via ISED’s website in  
accordance with the timelines stated … The number of eligibility  
points, financial deposit amounts, and eligibility status, including  
set-aside eligibility, will not be published. ISED makes its rulings  
on applicant set-aside eligibility based upon the information  
provided by the applicant as assessed against the set-aside  
eligibility criteria in accordance with the Framework.  
[Emphasis added.]  
[22] However, in accordance with Response 2.11 above, ISED did release a list of all  
qualified bidders to the public, along with information about their beneficial ownership, affiliates  
and associated entities.  
D.  
The 3500 MHz Auction  
[23] The Auction ultimately generated revenue of $8.91 billion for the Government of  
Canada.  
[24] Vidéotron applied, and was ultimately determined eligible, to be a set-aside bidder in the  
Tier 2 service areas in question for this judicial review, Manitoba, Alberta and British Columbia,  
Page: 11  
on the basis of services provided by its affiliate, Fibrenoire Inc. [Fibrenoire]. On July 29, 2021,  
Vidéotron was the successful bidder for 128 set-aside licenses across 45 license areas in Western  
Canada.  
[25] On August 3, 2021, TELUS wrote to ISED questioning the set-aside eligibility findings  
regarding Vidéotron and requesting a complete record of the material they filed.  
[26] ISED responded with an August 11, 2021 letter explaining the finding that, based on a  
review of Vidéotron’s application materials and verification of publicly available services,  
Vidéotron was eligible as a set-aside bidder in accordance with the Framework and Clarification  
Document. ISED also stated that in accordance with the prescribed process, it would not release  
Vidéotron’s documentation.  
[27] On August 26, 2011, TELUS commenced this application for judicial review.  
E.  
Procedural Background at the Federal Court  
[28] A motion for an interlocutory injunction to stay the issuance of the licenses to Vidéotron  
in Western Canada, brought in September 2021 by TELUS, was dismissed by Justice Grammond  
of this Court by Order and Reasons dated October 22, 2021 (Telus Communications Inc. v.  
Vidéotron Ltée, 2021 FC 1127 [Telus v. Vidéotron]).  
[29] The Minister proceeded to issue the licenses assigned through the 3500 MHz Auction on  
December 17, 2021.  
Page: 12  
[30] The Attorney General of Canada [AGC] was granted leave to intervene in these  
proceedings, and initially did not produce a complete tribunal record due to confidentiality  
concerns expressed by Vidéotron. TELUS and Vidéotron each brought competing motions, for  
disclosure and confidentiality, respectively. Vidéotron’s motion was dismissed by an Order of  
Prothonotary Tabib, dated December 6, 2021, which circumscribed the disclosure process for  
confidential information. Vidéotron appealed this order.  
[31] Ultimately, the parties resolved their disagreement on consent and, on February 3, 2022,  
Justice Pentney issued a protective confidentiality Order pursuant to Rules 151 and 152 of the  
Federal Courts Rules, SOR/98-106. TELUS, Vidéotron and the AGC each thereafter provided a  
redacted public version, in addition to a confidential private version of their respective records.  
TELUS’ affiant, Mr. Mulvihill, was allowed to access and provide evidence based on the full  
record. Vidéotron and the AGC also presented affiants, Messrs. Dennis Béland and Daniel  
Anderson respectively, both of whom, like Mr. Mulvihill, annexed extensive evidence to their  
Affidavits.  
[32] The entire judicial review hearing proceeded in public before me, without any need to  
resort to in camera discussions. One of the other Respondents, Iristel Inc., provided their  
submissions in a public record, and without having had access to the confidential records of  
TELUS, Vidéotron and the AGC. Representatives of some of the other Respondents, along with  
other members of the public, also listened to the virtual hearing.  
Page: 13  
[33] Mindful of these individuals, the open court principle, and in the interests of the  
administration of justice remaining public, no confidential information from any of TELUS,  
Vidéotron or the AGC’s confidential records is contained in these Reasons. As such, there are no  
redactions, nor any need for a confidential set of reasons to be released separately.  
II.  
A.  
Decision under Review  
Vidéotron’s Set-Aside Eligibility Application  
[34] Vidéotron’s set-aside eligibility application, which formed part of the broader application  
to participate in the Auction that was required of all prospective bidders, consisted of completing  
a series of standardized forms established by ISED, attaching supporting documentation, and  
submitting the completed application confidentially on April 5, 2021.  
[35] Vidéotron’s application confirmed that: Fibrenoire was an affiliate registered with the  
CRTC as a facilities-based provider, indicated all of the Tier 2 areas where Vidéotron wished to  
apply for set-aside eligibility, and identified all of the Tier 4 areas where it was already providing  
commercial telecommunications services to the general public.  
[36] Vidéotron also attached documentation marked as confidential to its application, which  
included detailed descriptions addressing how Vidéotron met the set-aside eligibility criteria,  
including: descriptions of the services offered by Vidéotron and Fibrenoire in their respective  
service areas as well as their sales and distribution networks, the numbers of clients served, and  
how those clients accessed their services.  
Page: 14  
B.  
The Assessment and Verification Process  
[37] As indicated above, the Framework provided that ISED would review the completed  
forms and associated documents, assess eligibility and, if necessary, request further information  
and verify the information provided.  
[38] The AGC’s affiant, Daniel Anderson, a Manager in the Spectrum Licensing and Policy  
Branch at ISED, was responsible for the set-aside eligibility assessments of all applicants. He  
had also been responsible for leading the policy development for the 3500 MHz Auction. A form  
called “3500 MHz Auction Set-Aside Eligibility Assessment (Form 4)” the [Assessment Form]  
was used to record Mr. Anderson’s evaluations of the 19 applications for eligibility as set-aside  
bidders, between the application deadline of April 6, 2021 and April 22, 2021, at which point a  
list of qualified bidders would be published.  
[39] According to his Affidavit, Mr. Anderson began his assessment of Vidéotron’s set-aside  
eligibility on April 7, 2021, the day after the application deadline, entering information from the  
application directly onto the Assessment Form. He verified that both Fibrenoire and Vidéotron  
were indeed registered with the CRTC as facilities-based providers, which is reflected on the  
Assessment Form.  
[40] Vidéotron had indicated in its application that it qualified for set-aside in British  
Columbia, Alberta, and Manitoba through its affiliate, Fibrenoire. Vidéotron claimed that  
Fibrenoire had customers in each of these Western provinces as well as Northern Ontario, but did  
Page: 15  
not indicate who or where they were. Mr. Anderson testified that he wanted to verify the  
information provided by Fibrenoire about their services, including their distribution network in  
Western Canada, but was unable to do so using their website.  
[41] As a result, Mr. Anderson states in his Affidavit that he asked Nancy Macartney, one of  
his ISED colleagues who was participating in the assessment and verification process, to contact  
Vidéotron to request further details. On April 9, 2021, Ms. Macartney sent a letter to Vidéotron  
through secure electronic post, citing the criteria set out in the Framework for establishing set-  
aside eligibility and requesting that detailed information be provided for each of four service  
areas, namely Northern Ontario, and the Western Canadian provinces at issue in this case -  
Manitoba, Alberta and British Columbia.  
[42] On April 12, 2021, Mr. Béland, a Vice-President of Regulatory Affairs at Quebecor Inc.  
and Vidéotron’s affiant in the present application, replied on behalf of Vidéotron. Mr. Béland’s  
reply provided a more detailed description of the various categories of services provided by  
Fibrenoire in Western Canada, a list of customers, and detailed explanations of how business  
customers accessed the services, how equipment was distributed and what particular services  
were provided to each customer. One excerpt of the letter, for instance, reads as follows:  
[TRANSLATION]  
Fibrenoire is actively providing business telecommunications  
services to the general public in service areas 2-008, 2-009, 2-010,  
2-012 and 2-013, as it currently provides symmetrical speed  
connectivity services over dedicated fibre links to retail business  
customers with commercial operations in these areas. In addition to  
these fibre connectivity services, a growing portion of Fibrenoire’s  
customers also subscribe to services such as wireless backup  
connectivity and over-the-top networking applications.  
Page: 16  
. . .  
For each of the four categories of service provided, Fibrenoire  
ensures that the customer’s sites are connected to its backbone  
network through fibre access facilities (except for the minority of  
SD-WAN cases where coaxial cable or wireless facilities are used).  
Except in some areas of Toronto where Fibrenoire operates its own  
backbone Internet network, these fibre access facilities are sourced  
from business partners operating networks in the areas in question.  
However, even when it sources others’ fibre access facilities,  
Fibrenoire provides the equipment on the customer’s premises.  
Furthermore, in all cases, Fibrenoire is fully responsible for  
monitoring and managing the connectivity provided to the  
customer.  
Subject to the availability of adequate facilities from its business  
partners, Fibrenoire is ready to provide telecommunication services  
anywhere in the service areas . . .  
. . .  
When a new retail business customer contacts Fibrenoire for the  
first time, they are immediately assigned to a dedicated sales  
representative. This representative works with the customer to  
assess their needs, determine the most appropriate service category  
and negotiate a service contract. Typically, multi-year service  
commitments are required to ensure the most advantageous  
pricing. The assigned sales representative will then personally see  
to the delivery and installation of the equipment at the customer’s  
premises (see more details below) and will be available to the  
customer to resolve any activation issues that may arise. The sales  
representative also works with the customer on an ongoing basis to  
ensure that the service ordered continues to best meet the  
customer’s needs.  
Generally speaking, Fibrenoire’s dedicated sales representatives  
are physically located in Quebec, as Fibrenoire’s customers in the  
above-mentioned areas are most often branches of large Quebec  
companies that already have a well-established business  
relationship with the company. Nevertheless, Fibrenoire has a  
growing list of retail business customers headquartered outside of  
Quebec, who are well served by the Quebec-based sales experts.  
Page: 17  
[43] To verify that new business customers could obtain services from Fibrenoire in Western  
Canada, Mr. Anderson deposes that he placed two anonymous calls to Fibrenoire, using a  
blocked number. First, he posed as a potential business client with offices in Vancouver and  
Calgary and asked if Fibrenoire could provide services. The next day, he placed a second call  
posing as a potential business client with offices in Winnipeg and Thunder Bay. In both cases,  
Fibrenoire responded that it could offer internet services but that it would not be through  
Fibrenoire’s own infrastructure, but rather arranged through third-party infrastructure.  
[44] At the end of the Assessment Form for Vidéotron, Mr. Anderson recommended that  
Vidéotron be granted set-aside eligibility in all the service areas where it applied, including  
Western Canada. For each of the Tier 2 service areas in Western Canada, Mr. Anderson  
indicated, “Provides OTT [over the top] services to businesses through affiliate Fibrenoire” and  
at the end of the form he wrote “Provides internet services to business through Fibrenoire as  
wholesaler.”  
[45] Mr. Anderson deposes that on April 19, 2021, after completing his assessment, he met  
with ISED’s Senior Director, Mathew Kellison [the Minister’s delegate]. Mr. Anderson states  
that he explained his assessment of the application, the response received to ISED’s written  
request, the verifications he had completed by telephone, and the rationale for his  
recommendation. He also states that Mr. Kellison indicated that he agreed that Vidéotron met the  
requirements for set-aside eligibility in each of the areas in which it had applied.  
Page: 18  
[46] The Minister’s delegate made the Decision on behalf of the Minister on April 21, 2021,  
which is indicated on an internal document called “3500 MHz Auction Application Assessment  
Form” [the Compiled Assessment Form]. At the time the decision was made, the Minister’s  
delegate had the completed Assessment Form, all materials provided to ISED by Vidéotron  
(including the April 12 letter cited at para 42of these Reasons) and the Compiled Assessment  
Form before him on a USB key (as noted in a Response to Undertaking email from the AGC, at  
p. 1106 of the Applicant’s Record).  
[47] The next day, April 22, 2021, ISED published its list of qualified bidders. The findings  
on set-aside eligibility were shared with each applicant but were not made public prior to the  
auction, in accordance with the Framework and the Clarification Document.  
III.  
Issues and Analysis  
[48] TELUS submits two arguments in support of their application for judicial review. First,  
TELUS argues that the Minister failed to respect the duty of procedural fairness that was owed.  
According to TELUS, ISED failed to adhere to the procedure it established for itself, and failed  
also to maintain adequate records of the steps taken in the assessment of Vidéotron’s set-aside  
eligibility.  
[49] Second, TELUS submits that the decision of the Minister was unreasonable. It argues that  
ISED’s reasoning process was incoherent and lacked transparency, and that the determination  
could not be justified in light of the factual record and the Framework’s set-aside eligibility  
criteria.  
Page: 19  
[50] TELUS argues that Vidéotron should be disqualified as a set-aside bidder in Western  
Canada, and that the spectrum licenses it won there should be revoked, and that a new auction  
should be held, for which Vidéotron should not be eligible to participate.  
[51] The Respondents and the Intervener assert, on the other hand, that there were no flaws in  
either the reasonableness or fairness of the set-aside eligibility determination, and that this  
application should be dismissed.  
A.  
Standard of Review  
[52] While the Parties and the Intervener disagree on the outcome of this application, they  
agree on the applicable standards of review. First, with respect to the issue of procedural fairness,  
the Court must ask whether, having regard to all the circumstances, the procedure was fair and  
just (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at paras  
54-56 [CPR]; Ahousaht First Nation v. Canada (Indian Affairs and Northern Development),  
2021 FCA 135 at para 31).  
[53] Such an assessment often involves a consideration of the non-exhaustive list of factors  
outlined by the Supreme Court in Baker v Canada (Minister of Citizenship and Immigration),  
1999 CanLII 699 (SCC), [1999] 2 SCR 817 [Baker], and entails assessing “with a sharp focus on  
the nature of the substantive rights involved and the consequences for an individual, whether a  
fair and just process was followed” (CPR, at para 54).  
Page: 20  
[54] The Parties also agree that the second issue entails considering whether the Minister’s  
decision was reasonable. In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019  
SCC 65 [Vavilov], the Supreme Court set out a revised framework to determine the standard of  
review, whereby reasonableness is the presumptive standard. The Parties agree that there is no  
reason to depart from the reasonableness standard in this case.  
B.  
Preliminary Issues  
[55] I will begin my analysis with two preliminary matters that were raised by Vidéotron and  
TELUS respectively, namely (i) TELUS’s lack of standing to bring the application, and (ii) the  
improper contents of the Anderson and Béland affidavits.  
[56] First, Vidéotron asserts that TELUS has no standing to bring this judicial review because,  
as an NMSP, TELUS was not entitled to participate in the Auction for set-aside spectrum, and  
thus has no direct interest in the matter. TELUS contests this argument, asserting that they were  
directly affected by the breach to their right to a procedurally fair process. The AGC takes no  
position on the issue, but as TELUS points out, the AGC does acknowledge that the Minister had  
at least a minimal duty of procedural fairness toward TELUS.  
[57] The second preliminary issue is TELUS’ argument that the Affidavit evidence of Messrs.  
Anderson and Béland was inappropriate and seeks to impermissibly add to the tribunal record  
(paras 59-63, 65 and 68 of the Anderson Affidavit and para 47 of the Béland Affidavit).  
(i)  
TELUS has direct standing to bring the application  
Page: 21  
[58] Section 18.1(1) of the Federal Courts Act, RSC 1985, c F-7, states:  
18.1 (1) An application  
for judicial review may  
be made by the Attorney  
General of Canada or by  
anyone directly affected  
by the matter in respect  
of which relief is sought.  
18.1 (1) Une demande de  
contrôle judiciaire peut  
être présentée par le  
procureur général du  
Canada ou par quiconque  
est directement touché par  
l’objet de la demande.  
Vidéotron argues that TELUS, as an NMSP, had no right to bid for set-aside spectrum, the  
eligibility assessment determination which it challenges in this judicial review.  
[59] As a result, Vidéotron contends that TELUS is not directly affected by the matter in  
which it seeks relief. Vidéotron relies on Soprema Inc. v. Canada (Attorney General), 2021 FC  
732 [Soprema], which in turn relies on CanWest MediaWorks Inc. v Canada (Health), 2007 FC  
752 [CanWest] (aff’d 2008 FCA 207). Soprema and CanWest stand for the principle that for an  
applicant to be considered ‘directly affected’, the matter at issue must be one which adversely  
affects their legal rights, imposes legal obligations, or prejudicially affects them directly.  
Vidéotron relies on Soprema, and CanWest for the proposition that commercial or economic  
harm is not, in itself, sufficient to ground standing.  
[60] Vidéotron also relies on other cases refusing standing due to a lack of adverse impact to  
legal rights, including Novo Nordisk Canada Inc. v Canada (Health), 2019 FC 822 at paras 8-9,  
which held that commercial or economic harm is not sufficient to grant direct standing where the  
party’s legal rights are not affected and the party is not prejudiced. Similarly, Vidéotron relies on  
Ultima Foods Inc. v Canada (Attorney General), 2012 FC 799 [Ultima Foods] at paras 102-103,  
Page: 22  
where a licence granted to a third party for the importation of yogurt was held not to impose  
rights or obligations on another party.  
[61] TELUS counters that having been an active participant both in the consultation and the  
bidding processes of the Auction, its legitimate expectations of procedural fairness were  
undermined by how the set-aside eligibility determination process unfolded. TELUS argues that  
Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116 [Irving] provides a  
complete answer to the standing issues.  
[62] TELUS acknowledges that it was not eligible to bid on set-aside spectrum, but  
nevertheless points out that it competed directly against Vidéotron during the phase of the  
auction which concerned the assignment of spectrum frequencies. TELUS notes that all the  
participants in the Auction had to apply to qualify, and set-aside eligibility determinations were  
simply one component of the broader application process in which all prospective bidders  
participated. As a participant in the Auction, TELUS contends that it has standing on the basis of  
its expectation of a fair process.  
[63] I agree that this is not a particularly compelling example of being directly prejudiced. It is  
especially telling that TELUS is not joined in pursuing this application by any of the set-aside  
eligible bidders who participated in the Auction, who would have had a relatively greater interest  
in seeing set-aside eligibility determinations being made fairly, and who would have been even  
more directly affected by bidding directly against Vidéotron for set-aside spectrum. Their silence  
in this application has not gone unnoticed.  
Page: 23  
[64] Nevertheless, I find that TELUS has a sufficient basis to assert that its legal rights are  
affected, and to ground its standing to bring this Application, on account of its arguments  
regarding the procedural unfairness of the ISED process. Even if the content of the duty owed to  
it is found to be minimal, the fact that TELUS participated actively in the consultation leading to  
the Auction, and indeed, applied and participated in the Auction itself, there is no denying that  
they had a direct interest in the entirety of the Auction process being conducted fairly. In Irving,  
Justice Evans wrote at para 28:  
In my view, the question of the appellants’ standing should be  
answered, not in the abstract, but in the context of the ground of  
review on which they rely, namely, breach of the duty of procedural  
fairness. Thus, if the appellants have a right to procedural fairness,  
they must also have the right to bring the matter to the Court in order  
to attempt to establish that the process by which the submarine  
contract was awarded … violated their procedural rights. If [the  
government department] owed the appellants a duty of fairness and  
awarded the contract to [the contract bid winner] in breach of that  
duty, they would be “directly affected” by the impugned decision. If  
they do not have a right to procedural fairness, that should normally  
conclude the matter.  
[65] I note that in Ultima Foods, which Vidéotron relies on, the circumstances were  
distinguishable. There, the applicants, firms in the Canadian yogurt market, opposed import  
permits that allowed another Canadian yogurt processor to import yogurt into Canada. The Court  
did not accept that the applicants would be directly affected or experience prejudice as a result of  
the decision to grant the import permits, despite their claims that the decision threatened their  
businesses, and would reduce revenues and threaten the supply chain of Greek yogurt in Canada.  
The Court held the applicants did not have standing because they were only going to be impacted  
economically by the permits being awarded to the prospective yogurt importer.  
Page: 24  
[66] Vidéotron further argues that Justice Grammond already dismissed TELUS’ economic  
arguments on the market distortion impact of the Auction in Telus v. Vidéotron,at paras 69-77. I  
agree with Justice Grammond’s finding as it pertains to his assessment of the irreparable harm  
component of an interlocutory injunction. However, I cannot agree that TELUS’ failure to  
establish irreparable harm in their injunction application amounts to a finding that the result of  
the Auction did not have any direct financial impact. The impossibility of predicting the outcome  
or quantifying the financial impact of an Auction scenario where Vidéotron was determined not  
to be eligible to bid on set-aside spectrum in Western Canada, does not inexorably lead to a  
finding that TELUS suffered no direct financial impact.  
[67] Furthermore, unlike Ultima Foods, TELUS was not simply a competitor on the sidelines  
of an administrative process that did not concern them. TELUS, though admittedly not eligible to  
bid on set aside spectrum, was nonetheless a direct participant in the broader Auction and, as I  
will discuss further below, had a legitimate interest in the entire process being conducted fairly.  
[68] As such, I am not prepared to accept Vidéotron’s invitation to find the Court has no  
jurisdiction to hear the application. Having said that, establishing standing, and proving  
unfairness, are two completely different matters.  
(ii)  
TELUS’ Objections to the Affidavits of Messrs. Béland and Anderson  
[69] As I do not find it necessary to refer at all to the affidavit of Vidéotron’s affiant, Mr.  
Béland, to dispose of this application, I will limit my comments on this issue to the impugned  
sections of the Anderson affidavit, namely, paragraphs 59-63, 65 and 68.  
Page: 25  
[70] TELUS argues that it was inappropriate for Mr. Anderson, a key ISED representative  
involved in the selection process, to provide the evidence contained in the impugned paragraphs  
of his affidavit which was commissioned approximately nine months after the Decision was  
made. TELUS cites Canada v. Kabul Farms Inc., 2016 FCA 143 at para 38 [Kabul Farms] and  
Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 [Leahy] at para 145, for the  
proposition that supporting affidavits on judicial review cannot be used as an after-the-fact  
means of augmenting or bootstrapping the reasons of the decision-maker.  
[71] TELUS accordingly requests that the Court disallow paragraphs 59-63, 65, and 68 of the  
Anderson (AGC) Affidavit. Those paragraphs are reproduced at Annex C of these Reasons.  
[72] The AGC counters that admission of the Anderson Affidavit is both proper and necessary  
in these circumstances, since it meets two of the exceptions which allow for admission of  
affidavit evidence on judicial review: (a) to describe the background circumstances of the highly  
administrative Auction selection, and (b) to counter the allegations of procedural unfairness  
raised by the Applicant. The AGC contends that for both (a) and (b), the information is otherwise  
unavailable, and in neither case does it bootstrap or attempt to shore up the Decision with any  
additional reasons or justification for the conclusion. Rather, the AGC submits that the affidavit  
provides important evidence as to how the process was conducted, how the decision was made,  
the steps taken and how information was communicated.  
[73] Broadly speaking, TELUS is correct that a well accepted principle of administrative law  
restricts the evidentiary record on judicial review to that which was before the administrative  
Page: 26  
decision-maker (Association of Universities and Colleges of Canada v. Canadian Copyright  
Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 19; Leahy, at  
para 145).  
[74] However, there are exceptions to this rule as the AGC points out. For example, parties  
can file affidavits on judicial review which provide “general background in circumstances where  
that information might assist [the Court] in understanding the issues relevant to the judicial  
review” (Access Copyright, at para 20; see also Delios v. Canada (Attorney General), 2015 FCA  
117 at paras 43-45 [Delios]; Bernard v. Canada (Revenue Agency), 2015 FCA 263 at para 22-  
28).  
[75] I agree with the AGC that the entirety of Mr. Anderson’s Affidavit, including the  
impugned paragraphs, are helpful and orienting in providing general background information to  
the Court on the underlying administrative context and the decision-making process conducted  
by ISED for the Auction. This is especially so given the tight timeframes and confidentiality  
concerns that were inherent to the process, which had implications for the way it was conducted.  
Mr. Anderson describes the steps and practices followed by him and his team with respect to  
form completion, eligibility assessment, information verification and confidential  
correspondence, as well as final approvals.  
[76] Given the circumstances, this information assists the Court to better understand the set-  
aside eligibility determination process and further, to consider the procedural fairness arguments  
that have been raised, in context. The Affidavit does not provide any additional reasons or  
Page: 27  
justification not included in the Decision, nor does it stray into opinion or facts not within the  
affiant’s knowledge. I will accordingly decline to disallow or strike the impugned paragraphs of  
the Anderson Affidavit. It is admitted it in its totality.  
[77] As an aside, I note that the Anderson Affidavit stands in stark contrast to the one  
produced by TELUS’s affiant, Mr. Mulvihill, a former ISED employee now employed by  
TELUS, upon which TELUS relied heavily. Mr. Mulvihill’s testimony was largely concerned  
with his perception of the underlying intentions that lead to the development of the Framework,  
informed by his prior employment at ISED, which coincided with the 2018 600 MHz auction. He  
did not participate in eligibility determinations in either the 2018 or 2021 auctions, or the  
development of the Framework itself. Though he was not qualified as an expert witness,  
significant portions of Mr. Mulvihill’s affidavit and subsequent cross-examination stray  
consistently into argument and opinion on the intentions leading to the Framework and the  
appropriate interpretation of the set-aside eligibility criteria, views, which I must add, are simply  
not born out by the Framework or Clarification Document.  
[78] As I was neither asked to formally disregard or strike any paragraphs of the Mulvihill  
Affidavit, I have considered it alongside the testimony of Mr. Anderson, to the extent that the  
information can be considered relevant, reliable and known to the affiant.  
C.  
Procedural Fairness  
[79] After reading the records of the participants in this judicial review, and considering the  
applicable jurisprudence, I am satisfied that the Minister’s set-aside eligibility determination  
Page: 28  
process and the manner in which it was conducted was fair and just having regard to all the  
circumstances. I set out my reasons for that finding here.  
[80] According to TELUS, an application of the Baker factors (set out in Baker, at paras 23-  
28), suggests that the set-aside eligibility determination attracts a significant degree of procedural  
fairness. The Applicant relies on the fact that neither the Radiocommunication Act nor the  
applicable ISED policies provide a mechanism for review or appeal of the Decision, combined  
with the importance of the impact of the Decision for TELUS’ own interests, and the public  
interest more broadly.  
[81] TELUS also submits that the Minister undertook to abide by a specific procedure,  
whereby it would assess whether applicants met the set-aside eligibility criteria by requiring  
documentation of the services being offered in the relevant service area, the retail/distribution  
network and the number of subscribers in the service area. The publication of these eligibility  
criteria in advance, following an extensive public consultation process, created - in TELUS’s  
submission - legitimate expectations that the procedure set out by Minister would be followed.  
[82] The Respondents and Intervener all counter that the Baker factors would more  
appropriately lead to a conclusion that the degree of procedural fairness owed to TELUS was  
minimal, and that in any event, ISED adhered to all the rules in the procedure it set out for itself,  
and the process was entirely fair.  
Page: 29  
[83] The non-exhaustive list of Baker factors were recently summarized at para 77 of Vavilov  
as including: (1) the nature of the decision being made and the process followed in making it; (2)  
the nature of the statutory scheme; (3) the importance of the decision to the individual or  
individuals affected; (4) the legitimate expectations of the person challenging the decision; and  
(5) the choices of procedure made by the administrative decision maker (see also Baker, at paras  
23-27; Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village),  
2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5).  
[84] I am unpersuaded that a significant degree of procedural fairness was owed to TELUS in  
the process leading to set-aside eligibility determinations, given the Baker factors, reviewed in  
sequence below.  
(i)  
The nature of the Decision was purely administrative  
[85] Having reviewed and considered the Framework more broadly and the actual set-aside  
eligibility criteria in particular, in addition to the Clarification Document, the forms associated  
with the application, and Mr. Anderson’s Affidavit, I conclude that the nature of the Decision,  
namely the assessment of applicants’ eligibility to bid on set-aside spectrum, was a straight  
forward and purely administrative process. I note that Justice Grammond concluded similarly  
(TELUS v. Vidéotron, at para 37).  
[86] With the added benefit of a full record now before me, it is clear that the process was  
intentionally designed to be confidential, and prospective bidders did not have any participatory  
rights in the assessment of one another’s applications. The process was crafted in accordance  
Page: 30  
with the Framework, which involved broad public consultation in which TELUS participated  
extensively.  
(ii)  
The statutory scheme empowers the Minister to prescribe the process  
[87] The statutory scheme places full control over the process with the Minister, as outlined  
above. Prospective bidders were aware from ISED’s published process that they did not have  
participatory rights to review or challenge their competitors’ applications. Indeed, this was  
essential to the confidentiality and integrity of the Auction process, as demonstrated in numerous  
parts of the Framework, including paragraphs 247, 257, 422, 424 and 440.  
[88] What is more, ISED clearly indicated that documentation revealing the basis for a  
bidder’s eligibility would not be published (Clarification Document at Response 2.11,  
reproduced above at para 21). At no point did TELUS or any other bidder challenge the process  
the government announced, as it could have, and indeed, has done in the past (see TELUS v  
Canada (Attorney General), 2014 FC 1, [2015] 2 FCR 3).  
(iii) The importance of the Decision to TELUS was minimal  
[89] TELUS, as an NMSP, was explicitly barred by the eligibility criteria from bidding on the  
set-aside portion of the available spectrum. TELUS’ interest in the determination that Vidéotron  
was eligible is not akin to an applicant bidding directly against Vidéotron for set-aside spectrum  
or, an applicant who may have found themselves assessed as ineligible to bid for set-aside  
spectrum despite presenting a similar application to Vidéotron’s. No such competitors brought an  
Page: 31  
application. An application previously filed by Bell Canada, another NMSP, has since been  
discontinued. In any event, the impact of the Decision on TELUS was certainly minimal.  
[90] I am not prepared to conclude, as Vidéotron invites this Court to do and as I have  
addressed above - that this factor has the effect of disqualifying TELUS from applying for  
judicial review of the process. I accept that TELUS, as a participant in the broader Auction, has a  
limited procedural and financial interest in the outcome.  
[91] However, given the fact that TELUS was barred from obtaining set-aside spectrum from  
the beginning, and that they admit their interest in the outcome to be largely economic, this  
factor suggests that whatever scarce expectation of procedural fairness to which TELUS is  
entitled as regards the set-aside eligibility determinations, is correspondingly minimal. In Airbus  
Helicopters Canada Limited v. Canada (Attorney General), 2015 FC 257 [Airbus], Justice Roy  
held at para 116:  
Generally speaking, if one were to place the guarantees of  
procedural fairness along a spectrum, they would be significantly  
more elaborate where fundamental human rights are being  
adjudicated, with the other end of the spectrum being occupied by  
cases in which commercial interests are at play. Here, the discretion  
conferred on the Minister is considerable. There is no dispute on that  
front. The consultation that was held was by choice, with no legal  
obligation. There is no doubt that the Minister must act impartially  
and in good faith. But this was not an adjudication or a process that  
can be likened to the quasi-judicial function.  
[92] In Airbus, the applicant challenged a consultation process that preceded a procurement  
for the purchase of helicopters, stating that the consultations conducted by government  
representatives were tailored to enable the winning bidder to obtain the contract and further that  
Page: 32  
the Minister had breached its legitimate expectations. The Court disagreed and found that while  
the applicant was entitled to expect that the procedure adopted by the Minister would be  
followed, this expectation was fulfilled and an informed observer would recognize the quality of  
the process that was put in place (Airbus, at paras 121-123).  
[93] Accordingly, and given the present context where TELUS is a participant in the broader  
Auction, but not a direct competitor in the set-aside portion for which Vidéotron was assessed to  
be eligible, the importance of the Decision to TELUS suggests that TELUS’ expectation of  
procedural fairness would be no greater than the one recognized in Airbus: at the limited end of  
the spectrum.  
(iv)  
TELUS was entitled to expect that the process would be followed  
[94] As with Airbus, and as the Parties essentially agree, TELUS’ legitimate expectations as a  
participant in the broader Auction was limited to an expectation that ISED would follow the  
procedure it had publicly set out for itself.  
(v)  
Choices of procedure: The Minister chose to require documentation describing  
compliance and to allow information requests and verifications  
[95] Once again, while they disagree on whether Vidéotron adequately documented their set-  
aside eligibility application, the Parties are agreed that the Minister chose to require prospective  
bidders to provide relevant documentation to ISED including descriptions of the services being  
offered in the relevant service areas, the retail/distribution network and how subscribers accessed  
the services (see para 14 of these Reasons, which reproduces Decision D2 of the Framework).  
Page: 33  
[96] There is also no dispute among the parties that section 12.5 of the Framework explicitly  
empowered ISED to review the application forms, assess eligibility, request further information  
and verify the information received, all within tight timelines that were made publicly available.  
The bidder qualification process, including a link to the Table of Key Dates, was detailed at  
paragraphs 435-440 of the Framework.  
[97] Finally, as I have noted above, the application materials, the set-aside eligibility  
assessment process itself, and the results, were all intentionally kept confidential. Indeed this too  
was explicitly indicated to the parties in Response 2.11 of the Clarification document.  
(vi)  
Conclusion and analysis: the degree of procedural fairness owed was minimal  
and, having regard to the circumstances, was met  
[98] Having reviewed the Baker factors in the context of the present application, I conclude  
that the degree of procedural fairness owed by the Minister to TELUS was minimal and was  
limited to complying with the process it had set out for itself. I also find, having regard to all of  
the circumstances, that the Minister complied with this duty and the procedure followed was fair  
and just.  
(a)  
The process was followed  
[99] TELUS argues that the Minister breached the duty of procedural fairness by failing to  
maintain adequate records of its internal decision-making. The Framework, and the Assessment  
Form, required all applicants provide documentation to ISED demonstrating their eligibility  
under the bidding requirements. TELUS points to an excerpt of section 12.5 of the Framework,  
Page: 34  
which reads: “Applicants that do not comply with ISED’s written requests will have their  
application to participate in the auction rejected.” TELUS contends that since the Assessment  
Form indicates “no” for whether documentation was submitted in respect of Fibrenoire’s  
retail/distribution network for the Tier 2 service areas in Western Canada, the Court should  
conclude that Vidéotron did not comply with ISED’s written requests and should have had their  
application rejected.  
[100] TELUS further submits that Mr. Anderson failed to document the contents of his calls to  
Fibrenoire and that in any event, those calls were not a verification, as was allowed by the  
Framework, but rather an impermissible attempt to gather key information missing from the  
application. TELUS qualifies this as an impermissible bid repair, analogous to the procurement  
environment, where a clarification submitted by a bidder goes beyond the contents of the bid and  
provides new information.  
[101] In support of its argument, TELUS cites a series of decisions from the Canadian  
International Trade Tribunal, as well as Francis H.V.A.C. Services Ltd. v. Canada (Public Works  
and Government Services), 2017 FCA 165 [Francis], where the Federal Court of Appeal  
explained, at para 22:  
I agree that there is no doubt that bidders cannot make material  
corrections or amend their bids after the bid’s closing date. The  
requirements found in an RFP must be met at the time of bid  
closing, and a procurement entity is not entitled to consider  
information submitted after that date. “Bid repair”, as it has come  
to be known, is considered to be an indirect way of allowing a late  
bid. The rationale behind the rule against bid repair is easy to  
understand: allowing a bid to be modified or altered after the fact  
would undermine the bidding process itself, as it would allow a  
Page: 35  
change to be made to a bid at a time when the bids of others are  
known or could be known.  
[Citations omitted.]  
[102] While I am not in disagreement with any of the principles cited by TELUS with respect  
to procurement, I cannot agree that they apply to this set-aside eligibility assessment process. A  
final selection and award after a procurement process, and the eligibility determination for the  
set-aside portion of the Auction, are fundamentally different processes with distinct stakes and  
outcomes. A procurement that results in a binding contract, to the exclusion of other bidders,  
fundamentally contrasts from the Auction’s bidder qualification process, and in this case, the set-  
aside eligibility determination.  
[103] Here, there was no limit to the number of prospective bidders that could be determined  
eligible to bid on set-aside spectrum, so long as they met the criteria. Indeed, the stated purpose  
of set-aside spectrum was to increase competition. The mere submission of an application for  
set-aside eligibility would, if compliant, only qualify the applicant to bid, and would not  
guarantee the obtention of a 3500 MHz spectrum license, or give rise to a contract.  
[104] In Francis, on the other hand, a compliant bid was due by a specific closing date and the  
complete and compliant bid in response to a tender could have given rise to a contract. The  
circumstances are clearly distinct.  
[105] Furthermore, here, the Framework explicitly provided that additional information could  
be requested and verified by ISED officials during the eligibility assessment process (see paras  
Page: 36  
435 and 437 of the Framework). This type of iterative process was not akin to a bid repair, which  
is prohibited conduct within the purview of a government procurement. To the contrary, it  
demonstrates that, in accordance with the purpose of increasing competition, the process was  
intentionally designed to facilitate increased participation and to provide ISED with the  
flexibility required to ensure prospective bidders could correct errors, and to request or verify  
further information where necessary.  
[106] In short, the procedures established for the eligibility assessment of the Auction - which  
were developed in consultation with TELUS were fundamentally different from a government  
procurement process.  
[107] In assessing whether the stated process was complied with, I note that Vidéotron  
provided written documentation in support of the application with detailed explanations  
describing how all of the criteria for set-aside eligibility were met. As the process allowed, ISED  
requested further information in writing.  
[108] As I have noted, the Framework allowed for an iterative process, where the bidder would  
submit information, ISED could request corrections or additional information, and could perform  
the requisite verifications to ensure compliance with eligibility criteria. Prospective bidders  
would be informed of whether they had been found eligible within the prescribed period. This  
iterative process, including the post-submission verifications, should come as no surprise to  
Auction participants: not only being spelled out in the Framework, at paras 435, 437, but also  
indicated on the set-aside eligibility form.  
Page: 37  
[109] Following ISED’s written request for further information, Vidéotron complied and  
provided additional documentation that satisfied the departmental officials overseeing the set-  
aside eligibility assessment process. Mr. Anderson considered the additional information and  
conducted a verification of that information by placing independent anonymous phone calls. He  
was ultimately satisfied that Vidéotron met the requirements. He shared the Assessment Form  
with his supervisor, the Minister’s delegate, and participated in a team meeting wherein he  
explained the rationale for his recommendation that Vidéotron be determined eligible. The  
Minister’s delegate agreed with the analysis, and signed the Compiled Assessment Form.  
[110] Despite TELUS’ insistence on the “no” appearing on the Assessment Form, I find  
TELUS to be overly concerned with formality and to be elevating, in literal terms, the form  
above its substance. As the Respondent Iristel pointed out during the hearing, the forms to be  
completed are subordinate to the Framework itself, and are not meant to add to the requirements  
to be met by applicants.  
[111] Particularly where, as here, a decision making process does not lend itself to the  
production of a single set of reasons, one has to consider not only the physical form, but the  
entire surrounding context in a highly administrative process (Vavilov, at para 137). Here, the  
fact that the Minister’s delegate was ultimately satisfied that Vidéotron met the eligibility  
criteria, had the requisite explanations and documentation before him, and signed the approval, is  
clear from the Compiled Assessment Form.  
Page: 38  
[112] Even if the “retail and distribution network” itself was not independently documented by  
Vidéotron, it was abundantly described and substantiated in the initial and response documents  
that were provided by Vidéotron, which were independently assessed and verified by Mr.  
Anderson. I am not prepared to hold ISED or Vidéotron to a standard more exigent than what is  
explicitly set out in the Framework (at para 64 and Decision D2), as further discussed below in  
response to TELUS’ challenge to the reasonableness of the Decision.  
[113] In order to demonstrate that they met the eligibility criteria of actively providing  
commercial telecommunications services to the general public in the relevant Tier 2 service  
areas, Vidéotron was required to provide documentation which would include descriptions of:  
the services being offered in the relevant service areas; the retail and distribution network; and,  
how subscribers accessed the services and the numbers of subscribers in the service areas. It is  
clear to me from the initial and follow-up materials that were provided in addition to the  
Assessment Form, that Mr. Anderson, after requesting further information and conducting his  
independent verification, was satisfied that Vidéotron had done exactly that and was satisfied  
that they were set-aside eligible.  
(b)  
The Maintenance of adequate records  
[114] As for the maintenance of adequate records, TELUS cites the Treasury Board of  
Canada’s Directive on Service and Digital, at sections 4.3.2-4.3.3 [TBS Directive], and its Policy  
on Service and Digital [TBS Policy]. The TBS Directive requires employees of the Government  
of Canada to document “their activities and decisions of business value” (at s. 4.3.3.1).  
Page: 39  
Paragraph 4.3.2.10 of the TBS Policy, entitled “Recordkeeping”, reads that Deputy Heads are  
responsible for:  
Ensuring that decisions and decision-making processes are  
documented to account for and support the continuity of  
departmental operations, permit the reconstruction of how policies  
and programs have evolved, support litigation readiness, and allow  
for independent evaluation, audit and review.  
[115] Citing the TBS Directive and the TBS Policy, TELUS submits that the failure of Mr.  
Anderson to document the contents of his calls, and of Mr. Anderson and the Ministers delegate  
to keep minutes of their meeting, were both procedurally unfair given the magnitude of the  
decision under review.  
[116] TELUS also argues that no approvals by the Minister’s delegate appear on the  
Assessment Form, or on any other document produced by ISED. TELUS once again relies on  
Leahy, at paras 100, 119-121, 137, and Kabul Farms, at para 34, this time for the proposition that  
the adequate records were not kept.  
[117] I disagree with both of TELUS’ contentions, namely, 1) that the Minister was required to  
keep more detailed records than it did, and 2) that the evidentiary record was deficient or “so thin  
that [the Court] cannot properly assess whether the decisions were correct or reasonable” (Leahy,  
at para 100).  
[118] The Minister’s delegate’s signature and approval are documented on the Compiled  
Assessment Form, which also clearly indicates all the ISED employees involved in the business  
decision in question, along with their respective responsibilities in the process. That form lists  
Page: 40  
Mr. Anderson as the set-aside eligibility reviewer. Furthermore, the Assessment Form was  
completed by Mr. Anderson at the time of his work on the file, and indicates his assessment of  
how Vidéotron met the set-aside eligibility criteria for each of the service areas in question.  
[119] I do not find - nor do the Framework, the TBS Directive or the TBS Policy requirethat  
the record-keeping obligation extended to keeping recordings or detailed minutes of all internal  
discussions or verification processes. Given the nature of the eligibility assessment, and the  
compressed timelines involved, such a requirement would go well beyond what was required.  
[120] In sum, I find that the Minister followed its process in assessing Vidéotron’s set-aside  
eligibility and that the process was adequately documented, consistent with what could have  
been legitimately expected by the affected parties. Having regard to all of the circumstances, I  
find the process of assessing Vidéotron’s set-aside eligibility to have been fair and just.  
D.  
The Decision was reasonable  
[121] A court performing a reasonableness review scrutinizes the decision in search of the  
hallmarks of reasonableness – justification, transparency and intelligibility – to determine  
whether it is justified in relation to the relevant factual and legal constraints (Vavilov, at para 99).  
Both the outcome and the reasoning process must be reasonable and the decision must be based  
on an internally coherent and rational chain of analysis, justified in relation to the facts and the  
law (Vavilov, at paras 83-85).  
[122] TELUS argues that two aspects of the Decision fail to meet this standard.  
Page: 41  
[123] First, TELUS argues that Mr. Anderson’s use of the terms “wholesaler”, “OTT” and  
“phone” on the Assessment Form were unreasonable on account of their incoherence, ambiguity,  
and unintelligibility. TELUS further submits that key information was missing from the reasons,  
namely the phone calls that were placed, such that the Decision lacks transparency.  
[124] Second, TELUS argues that Vidéotron’s application was non-compliant with the  
Framework’s eligibility criteria, and the Decision therefore cannot be justified in light of the  
factual record; the only reasonable conclusion was to reject it. Each of these two arguments  
contesting the Decision’s reasonableness are analysed next.  
(i)  
Transparency and intelligibility of terms used in the Decision  
[125] TELUS submits that Mr. Anderson’s use of the term “wholesaler” in the Assessment  
Form is confusing, ambiguous and unintelligible and that “reseller” would have been a more  
appropriate term since, as is undisputed by the parties, Fibrenoire buys access to the  
infrastructure of other carriers in Western Canada and then resells it to its own customers.  
TELUS submits that this may have confused the Minister’s delegate and it is not clear he  
understood Vidéotron to be a reseller without its own infrastructure in the Tier 2 service areas in  
question. TELUS contends that on either meaning of the term wholesaler, Fibrenoire cannot  
reasonably be considered to actively provide commercial telecommunications services to the  
general public.  
[126] Similarly, TELUS argues Mr. Anderson’s use of the term “OTT” on the Assessment  
Form was ambiguous and unintelligible in the circumstances. TELUS notes that the term is  
Page: 42  
frequently used in the broadcasting context to describe a method of service delivery by a  
company that provides streaming content, but does own the underlying facilities or delivery  
network. As such, TELUS contends that one can only guess at what the Minister’s delegate  
would interpret such a term appearing on the Assessment Form to mean, since, in TELUS’  
submission, it is not well-suited to describe the services provided specifically within the  
telecommunications industry.  
[127] Finally, TELUS claims that Mr. Anderson’s use of the term “Phone” was unintelligible  
having been written in the “comments” section of the Assessment Form, related to  
retail/distribution network. TELUS argues that this notation is unclear, raising multiple  
interpretations and making it impossible for the Court to be satisfied that an acceptable line of  
reasoning was employed.  
[128] Accordingly, TELUS submits, Mr. Anderson either verified the retail distribution  
network by making phone calls in which case he ought to have used the “verified via” box and  
not the “comments” box to indicate his observation or, alternatively, he intended to indicate  
that the retail distribution network was marketed to Fibrenoire’s Western Canada clients by  
phone. Either way, TELUS contends, the Court is left guessing. It cannot fill in the reasons for  
the decision maker. Administrative decisions no matter how discretionary or administrative in  
nature must nonetheless be not only justifiable, but also justified.  
[129] An applicant in a judicial review has the burden of showing there are sufficiently serious  
shortcomings, consisting of central or significant flaws, to render the decision unreasonable  
Page: 43  
(Vavilov, at para 100). This burden cannot be met by demonstrating superficial or peripheral  
missteps. Reviewing Courts must also remain attentive to decision makers’ demonstrated  
expertise; an outcome which might on its surface appear puzzling may “nevertheless [accord]  
with the purposes and practical realities of the relevant administrative regime and [represent] a  
reasonable approach given the consequences and the operational impact of the decision”  
(Vavilov, at para 93).  
[130] I am unpersuaded by TELUS’ arguments, which, even if they were accepted, would only  
amount to superficial shortcomings. Furthermore, TELUS’ arguments are highly formalistic,  
elevating form over substance, and invite the Court to engage in a “line-by-line treasure hunt for  
error” instead of looking at the record holistically and paying due sensitivity to the administrative  
regime (Vavilov, at paras 102-103). Where, as here, a Decision does not lend itself to the  
production of a formal set of reasons, the Court must look to the record as a whole to understand  
the decision and uncover its rationale (Vavilov, at para 137).  
[131] To isolate words and remove them from their broader context, is akin to cropping a  
person out of one background and dropping them into another. While certainly possible to do,  
the doctored picture depicts an altered reality from that seen by the original viewers, and  
interferes with the new viewer’s ability to situate the person in their original surroundings –  
somewhat akin to removing the dots from a written page so that one cannot connect them.  
[132] One cannot, in the process of judicial review, jettison the plain meaning of words and  
disregard the broader context in which those words belong, and instead invite the Court to  
Page: 44  
proffer an alternate view. Here, TELUS invites the Court to divorce the words used by Mr.  
Anderson from their ordinary meaning by removing them from their context, proffering an  
alternative meaning, and shedding doubt on which interpretation was adopted by the Minister’s  
delegate. This kind of overly semantic exercise is inconsistent with the instructions in Vavilov in  
assessing reasonableness, namely that reasonableness takes its colour from the context, and that  
remaining sensitive to the context of every situation is how reviewing Courts can assess the legal  
and factual constraints that bear on the decision in question (Vavilov, at paras 89-90).  
[133] Vidéotron’s application to ISED included an explanation of how it qualified to bid on set-  
aside spectrum, along with details regarding Fibrenoire’s role. Mr. Anderson did not simply  
accept that explanation. Rather, he investigated it, requested additional information, and  
conducted a verification to ensure they were actively providing services in the relevant Tier 2  
areas. Once satisfied, he summarized his findings on the Assessment Form. That form, along  
with Vidéotron’s application materials, was then placed before the Minister’s delegate, who  
determined Vidéotron to be eligible.  
[134] Mr. Anderson’s words, like any others within one document, could certainly be cut and  
pasted out of their broader context, isolated, and then assigned a different meaning. However,  
there is no evidence to suggest that there was any doubt as to the meaning of these terms, or that  
either Mr. Anderson or the Minister’s delegate engaged in such word-smithing.  
[135] To accept TELUS’ argument would require this Court to ignore the full record, including  
Vidéotron’s application materials, which were before the Minister’s delegate, in addition to Mr.  
Page: 45  
Anderson’s Affidavit and subsequent testimony in cross-examination. Such an approach would  
also ignore Mr. Anderson and the Minister’s delegate’s knowledge and respective roles in the  
process. It would unreasonably elevate a trivial, semantic exercise, and replace the abundantly  
reasonable and readily apparent interpretation that the Minister’s Delegate adopted. It would fail  
to take the entire record into account, as the reviewing Court is called to do.  
[136] I am no more convinced by TELUS’ argument today than my colleague Justice  
Grammond was for the interlocutory stay in Telus v. Vidéotron, at para 47, and I have the added  
benefit of a full and unredacted record that was unavailable to him.  
[137] The nature of the services provided by Vidéotron and their retail distribution network  
were described in great detail in the application documents. The meaning of “wholesaler” and  
“OTT”, read in that context, are abundantly clear to me: Fibrenoire relied on third party  
infrastructure to provide commercial telecommunications services to businesses in Western  
Canada.  
[138] Indeed, it appears to have been clear to both Vidéotron and ISED, as it is to me, that as  
long as Fibrenoire too was a facilities-based provider registered with the CRTC, actively  
providing commercial telecommunications services to the general public in the relevant Tier 2  
areas, the Framework’s eligibility criteria was unconcerned with whose underlying infrastructure  
was being used to deliver the services.  
Page: 46  
[139] Under the circumstances, it is unrealistic for TELUS to argue that the Minister’s delegate,  
would not have understood the intended meaning of these terms, nor is there any evidentiary  
basis to support the argument, particularly in light of the fact that the recommendation and the  
rationale were discussed prior to the final decision, and Vidéotron’s documents were before the  
Minister’s delegate at the time.  
[140] The same is true of the use of the word “phone” on the Assessment Form, read in context.  
I read its use to indicate that the Fibrenoire’s retail distribution network was accessible and  
delivered by phone with personal support, as described in the Vidéotron’s materials submitted in  
support of the application. As the Respondent Iristel pointed out, given that the record shows  
Vidéotron’s customer base in Western Canada consisted of business clientele, it makes perfect  
sense that their distribution network would be available by phone. Furthermore, there was no  
requirement for them to have a brick and mortar retail network.  
[141] Even if I am mistaken, and the use of phone was intended to indicate the verification  
method, this minor ambiguity is entirely insufficient to render the decision unreasonable, given  
the other contents of the Assessment Form, the affidavit and cross-examination of Mr. Anderson,  
and the broader context of the process governed by the Framework.  
[142] I conclude my remarks on transparency and intelligibility of the decision with Vavilov’s  
reminder to reviewing Courts that in judicial review, written reasons given by an administrative  
body must not be assessed against a standard of perfection. Rather, the Court must be able to  
discern a reasoned explanation for the decision (see also Alexion Pharmaceuticals Inc. v. Canada  
Page: 47  
(Attorney General), 2021 FCA 157 at para 7). This exercise requires deference and respectful  
attention to the demonstrated experience and expertise of the decision maker, the practical  
realities of the administrative regime, and the operational impact of the decision.  
[143] In light of the context, the forms, the application materials and the letters exchanged  
reveal a rational chain of analysis (Vavilov, at para. 103; Riccio v. Canada (Attorney General),  
2021 FCA 108 at para 22). The meaning ascribed to the words “phone”, “wholesale” and “OTT”  
by Mr. Anderson, read in context, were notations to reflect the due diligence he conducted in  
assessing Vidéotron’s compliance with the eligibility criteria. The Decision that followed,  
considered in context, is transparent and intelligible.  
(ii)  
The record is adequately documented  
[144] TELUS further submits, as with their procedural fairness arguments above, that the lack  
of records of Mr. Anderson’s phone calls and of his meeting with the Minister’s delegate where  
he explained the rationale for his recommendation, makes it impossible for the Court to perform  
its role of scrutinizing the decision, and is thus unreasonable.  
[145] For the same reasons as above, I disagree. Having regard to the context, the record, the  
confidentiality and tight timelines inherent to the process, along with the guiding Framework and  
Clarification Document, there was no requirement for ISED to keep more detailed records than it  
did. It acted reasonably in this regard.  
(iii) Incorrect customer statistics did not impact the reasonableness of the Decision  
Page: 48  
[146] TELUS also notes that when Vidéotron responded to the Minister’s written request, it  
disclosed and corrected some cases of over-reporting of the numbers of its customers in Western  
Canada, as a result of double counting. TELUS further notes that the Assessment Form reflects  
the numbers originally given to ISED, rather than the corrected numbers disclosed by Vidéotron  
in its response. TELUS submits that the Minister’s delegate thus had incorrect factual  
information before him when he made the Decision, with an inflated customer count for Western  
Canada. This, according to TELUS, is a significant error since the numbers of customers would  
have directly informed the question of whether Vidéotron was actively providing services to the  
general public.  
[147] I have reviewed the figures appearing on both the Assessment Form and those provided  
in the corrected lists by Vidéotron. I find the difference in the number of customers in each of the  
service areas to be insubstantial. Given that there was no minimum threshold requirement of  
customers required to meet the set-aside eligibility criteria, there is no reason to believe the  
minor differences in the figures would have impacted the decision.  
[148] Even if I were convinced that the Minister’s delegate was not aware of the correction –  
which I am not – the difference is certainly not a sufficiently serious shortcoming to render the  
decision unreasonable. As noted above, Vidéotron’s written documentation, including the  
correction disclosed in Vidéotron’s response, was before the Minister’s delegate when the  
decision was made. The fact that the Assessment Form was not updated following Vidéotron’s  
response to ISED’s written request does not automatically mean the corrected information was  
unknown to the Minister’s delegate.  
Page: 49  
[149] Either way, the minor differences in the numbers of customers reported for each of the  
three provinces in Western Canada are immaterial, and do not have the effect of rendering the  
Decision unreasonable.  
(iv)  
The Decision is justified in light of the facts and the law  
[150] TELUS’ final ground for challenging the reasonableness of the Minister’s decision,  
namely that it is not justified in light of the facts and eligibility criteria, goes to the heart of its  
rationale in bringing this application. Specifically, TELUS appears to be in irreconcilable  
disagreement with ISED’s application of the set-aside eligibility criteria.  
[151] Some aspects of this argument incorporate elements of others I have already disposed of  
earlier in these Reasons, namely: (i) the appropriateness of the contents of Mr. Anderson’s  
Affidavit to provide helpful background evidence (in paras 68-77); and, (ii) ISED’s compliance  
with the procedural requirements of the Framework, including Mr. Anderson’s verification calls  
(in paras 98-112).  
[152] TELUS first submits that even if the verification calls were allowed, it was irrational to  
rely on them to conclude that services actually were being actively provided to the general  
public, without taking further steps to verify Fibrenoire’s claim that it could provide internet  
services. TELUS submits that the fact that Vidéotron’s capacity to offer telecommunications  
services in Western Canada was conditional on finding a business partner with the infrastructure  
to provide the service, was tantamount to it not meeting the eligibility criteria. By deciding  
otherwise, in TELUS’ submission, ISED impermissibly departed from the Framework.  
Page: 50  
[153] TELUS further submits that ISED failed to apply the eligibility criteria in a reasonable  
manner, making it unreasonable to conclude that Vidéotron had met them. According to TELUS,  
Vidéotron could not reasonably be considered 1) to be actively providing commercial  
telecommunications services in Western Canada, because of its lack of infrastructure and  
distribution network, or 2) providing those services to the general public, because of its low  
customer base there.  
[154] TELUS’ argument takes as its premise that to actively provide service to the general  
public in the relevant Tier 2 service area, it is not sufficient to be registered as a facilities-based  
provider with CRTC. Instead, the Framework must be read to mean that the facilities-based  
provider must be providing services in each of those service areas using its own facilities-based  
physical infrastructure. Further, TELUS submits that the numbers of customers served by  
Vidéotron in Western Canada was insufficient to meet the criteria of providing services to the  
general public, in spite of the absence of any minimum threshold requirement in the Framework.  
[155] TELUS is, of course, free to provide its own suggested interpretation of how the  
eligibility criteria should be applied and of the underlying intentions and ministerial policy goals  
that formed the backdrop to the Framework that was ultimately adopted. Indeed, it relies heavily  
on the prior work experience of its affiant, Mr. Mulvihill, a former ISED employee, in doing so.  
[156] Be that as it may, it is not for TELUS to draft and apply its own criteria, which do not  
appear in the Framework governing the process, or to apply its own measuring stick to how the  
criteria that do appear in the Framework ought to have best been interpreted and applied (Delios,  
Page: 51  
at para 28). It is not enough to put forward an alternative interpretation when the one adopted by  
the decision-maker is compatible with the text and context (McLean v. British Columbia  
(Securities Commission), 2013 SCC 67 at paras 40-41).  
[157] It is clear to me, as it was to the Minister, that both Vidéotron and Fibrenoire were  
registered with the CRTC as facilities-based providers, neither being an NMSP, and that  
Fibrenoire was actively providing commercial telecommunications services to the general public  
in each of the three Tier 2 service areas in question. Given that these three set-aside criteria were  
met, the determination that Vidéotron was eligible to bid on set-aside spectrum in those  
provinces was eminently reasonable, and entirely open to the Minister, in the circumstances.  
[158] Nowhere in the Framework or elsewhere was it stated, as TELUS now argues, that to be  
eligible to bid for set-aside spectrum, the telecommunications services had to be offered by the  
prospective bidder using their own transmission facilities located in the relevant service areas.  
Rather, the Framework only required that the prospective bidder be registered with the CRTC as  
a facilities-based provider. ISED’s interpretation, from this perspective, holds up under the plain  
language of the eligibility requirements. TELUS’ alternative interpretation cannot reasonably be  
implied by the Framework.  
[159] It is also not clear to me how such an interpretation of the eligibility requirements could  
have been assessed in the applicable timelines. This would require the assessor, for every  
application, to consider not only whether the applicant was a facilities-based provider registered  
with the CRTC, but whether it was serving its customers in each of those service areas using its  
Page: 52  
own transmission facilities. I am not prepared to adopt that this was the underlying intention of  
the Framework, and that such a requirement can be read into the eligibility criteria, or practically  
assessed or verified in the applicable timelines. There is simply no justification to distort the  
language of the criteria in the way TELUS suggests.  
[160] Furthermore, there was no minimum threshold to meet for the numbers of customers  
served. Fibrenoire’s distribution network was accessible by phone. Its services were customized  
to the needs of its existing business clientele, and available to new customers. Regardless of what  
TELUS may submit regarding the size of the customer base, where their home offices were  
located, or whose underlying infrastructure Fibrenoire relied on to deliver its services, Fibrenoire  
served an appreciable number of customers in each of the Tier 2 service areas in question.  
[161] Indeed, to hold otherwise would not have borne the hallmarks of reasonableness –  
transparency, intelligibility, justification it would be inconsistent with the flexible rules on  
telecommunications services being provided somewhere in the larger Tier 2 service areas and the  
absence of a minimum customer threshold. Such an interpretation would have also undermined  
the clear objectives of increasing competition.  
[162] I note that this judicial review is not the first time that TELUS has opposed a pro-  
competitive interpretation or application of the eligibility criteria. Indeed, the Framework, at para  
49, highlights TELUS’s opposition to them during the consultation. It also notes that TELUS  
was opposed to set-aside-eligible bidders being allowed to bid on open spectrum and getting  
priority to non-encumbered spectrum (at paras 49 and 87). Despite noting these objections, the  
Page: 53  
Minister decided to proceed largely as initially proposed with respect to the set-aside auction,  
framed by the objective of increased competition.  
[163] In short, TELUS’s opposition to the set-aside eligibility criteria, in favour of another  
model, were neither ignored nor unreasonably overlooked. Rather, the Minister clearly decided  
to reject them in favour of the eligibility criteria that were adopted, and which I have found were  
reasonably applied in their entirety to Vidéotron’s application.  
[164] Ultimately, TELUS has not provided a basis for the Court to intervene. Rather, it prefers  
a far more restrictive interpretation to meet the set-aside eligibility criteria. However, the  
Minister’s delegate here chose an interpretation that added up, being both justified and justifiable  
in light of the Framework. The Decision was thus entirely reasonable not only in light of the  
plain language of the eligibility requirements found in the Framework, but also in light of the  
record that was before the Decision-maker. Read holistically, the Decision supports a rational  
application of the criteria, using the yardstick that the Decision-maker was handed, and applied.  
IV.  
Costs  
[165] At the Court’s request, the parties provided their submissions on costs at the hearing.  
[166] Vidéotron argued that costs should be ordered in the highest column (V) of Tariff B of  
the Federal Courts Rules, SOR/98-106, on the basis that TELUS should never have brought the  
challenge in the first place, and at minimum, like Bell, should have discontinued its application  
after the interlocutory decision in Telus v. Vidéotron. Vidéotron urged that a message should be  
Page: 54  
sent to the Applicant that the Court should not be used as a weapon in the conduct of commercial  
warfare.  
[167] The AGC requested costs as well, arguing that it should be entitled to them as an  
Intervener, citing Sawridge Band v. Canada, 2006 FC 656 [Sawridge] and Glaxo Canada Inc. v.  
Canada (Minister of National Health & Welfare), 1988 CarswellNat 566, 19 CIPR. 120, aff’d  
[1990] 107 NR 195. It requested a lump sum of $10,000, on the basis that while an average  
matter of this scope would merit about $5,000 in costs, it had to participate in the application  
hearing as well as the previous motion for injunctive relief, in addition to gathering a significant  
amount of evidence.  
[168] Iristel also requested costs, although it did not specify the amount requested.  
[169] The Applicant opposed any call for elevated costs, contending that the default middle  
column (III) of Tariff B should apply regardless of the successful party, given that the  
application addresses an important issue, namely whether a federal body properly carried out its  
function. They also noted that counsel have been working collegially. TELUS noted that the  
interim motion dealt with costs, which were not in the cause, and thus should not have any  
bearing.  
[170] Taking these diverging positions on costs into consideration, and given that the parties  
did not present any bills of costs, and the Intervener requested lump sum costs, I will order that  
Page: 55  
Costs be assessed under the fourth Column of Tariff B. This is not due to any lack of civility  
amongst the parties that I witnessed, or to sanction any inappropriate behaviour.  
[171] Rather, the increased costs beyond the default column (III), are merited given the  
significant amount of work and stakes involved in this litigation, including: the lengthy process  
of agreeing to and preparing the evidentiary record; the records from three primary parties  
totalling nearly 5000 pages, not including their books of authorities; and, the numbers of counsel  
involved in the litigation, six of whom made oral submissions to the Court. As in Ludco  
Enterprises Ltd. v. Canada, 2002 FCA 450 at para 9, these figures illustrate the volume of work  
generated by the importance and complexity of the issues.  
[172] Finally, costs to the intervener are warranted in this case. I find, consistent with  
Sawridge, at paras 39-45, that while interveners are not generally entitled to costs, in this case,  
the AGC had a particular interest, and indeed contributed to the Court’s deliberations  
significantly. The AGC did so by leading evidence of the broader legislative framework  
generally, and, more importantly, the specific procedural backdrop to the development of the  
Framework for the Auction and the set-aside eligibility assessment process in particular. This  
viewpoint would not otherwise have been available.  
V.  
Conclusion  
[173] In light of the reasons provided above, the application for judicial review is dismissed,  
with costs payable by the Applicant to the two Respondents and the Intervener, to be assessed  
under Column IV of Tariff B.  
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JUDGMENT in T-1335-21  
THIS COURT’S JUDGMENT is that:  
1. The Application for judicial review is dismissed.  
2. Costs are payable by the Applicant to the Respondents, Vidéotron and Iristel, and  
Intervener, the Attorney General of Canada, each to be assessed under Column IV of  
Tariff B.  
"Alan S. Diner"  
Judge  
Page: 57  
ANNEX A: Relevant Legislative Provisions  
Telecommunications Act, SC 1993, c 38  
Loi sur les télécommunications (L.C. 1993, ch. 38)  
Canadian Telecommunications Policy  
Politique canadienne de  
télécommunication  
7 It is hereby affirmed that  
7 La présente loi affirme le caractère essentiel  
des télécommunications pour l’identité et la  
souveraineté canadiennes; la politique  
telecommunications performs an essential  
role in the maintenance of Canada’s identity  
and sovereignty and that the Canadian  
telecommunications policy has as its  
objectives  
canadienne de télécommunication vise à :  
(a) to facilitate the orderly development  
throughout Canada of a  
telecommunications system that serves to  
safeguard, enrich and strengthen the social  
and economic fabric of Canada and its  
regions;  
a) favoriser le développement ordonné des  
télécommunications partout au Canada en  
un système qui contribue à sauvegarder,  
enrichir et renforcer la structure sociale et  
économique du Canada et de ses régions;  
(b) to render reliable and affordable  
telecommunications services of high  
quality accessible to Canadians in both  
urban and rural areas in all regions of  
Canada;  
b) permettre l’accès aux Canadiens dans  
toutes les régions rurales ou urbaines  
du Canada à des services de  
télécommunication sûrs, abordables et de  
qualité;  
(c) to enhance the efficiency and  
competitiveness, at the national and  
international levels, of Canadian  
telecommunications;  
c) accroître l’efficacité et la compétitivité,  
sur les plans national et international, des  
télécommunications canadiennes;  
(d) to promote the ownership and control  
of Canadian carriers by Canadians;  
d) promouvoir l’accession à la propriété  
des entreprises canadiennes, et à leur  
contrôle, par des Canadiens;  
(e) to promote the use of Canadian  
transmission facilities for  
telecommunications within Canada and  
between Canada and points outside  
Canada;  
e) promouvoir l’utilisation d’installations  
de transmission canadiennes pour les  
télécommunications à l’intérieur du  
Canada et à destination ou en provenance  
de l’étranger;  
(f) to foster increased reliance on market  
forces for the provision of  
telecommunications services and to ensure  
f) favoriser le libre jeu du marché en ce  
qui concerne la fourniture de services de  
télécommunication et assurer l’efficacité  
Page: 58  
de la réglementation, dans le cas où celle-  
that regulation, where required, is efficient  
and effective;  
ci est nécessaire;  
(g) to stimulate research and development  
in Canada in the field of  
telecommunications and to encourage  
innovation in the provision of  
telecommunications services;  
g) stimuler la recherche et le  
développement au Canada dans le  
domaine des télécommunications ainsi que  
l’innovation en ce qui touche la fourniture  
de services dans ce domaine;  
(h) to respond to the economic and social  
requirements of users of  
telecommunications services; and  
h) satisfaire les exigences économiques et  
sociales des usagers des services de  
télécommunication;  
(i) to contribute to the protection of the  
i) contribuer à la protection de la vie  
privacy of persons.  
privée des personnes.  
Radiocommunication Act, RSC 1985, c R-2  
Loi sur la radiocommunication (L.R.C. (1985), ch. R-2)  
Minister’s Powers  
Pouvoirs ministériels  
5 (1) Subject to any regulations made under  
section 6, the Minister may, taking into  
account all matters that the Minister  
considers relevant for ensuring the orderly  
establishment or modification of radio  
stations and the orderly development and  
5 (1) Sous réserve de tout règlement pris en  
application de l’article 6, le ministre peut,  
compte tenu des questions qu’il juge  
pertinentes afin d’assurer la constitution ou  
les modifications ordonnées de stations de  
radiocommunication ainsi que le  
efficient operation of radiocommunication in développement ordonné et l’exploitation  
Canada,  
(a) issue  
(i) radio licences in respect of radio  
efficace de la radiocommunication au Canada  
:
a) délivrer et assortir de conditions :  
(i) les licences radio à l’égard  
d’appareils radio, et notamment prévoir  
les conditions spécifiques relatives aux  
services pouvant être fournis par leur  
titulaire,  
apparatus,  
(i.1) spectrum licences in respect of the  
utilization of specified radio  
frequencies within a defined  
geographic area,  
(i.1) les licences de spectre à l’égard de  
l’utilisation de fréquences de  
radiocommunication définies dans une  
zone géographique déterminée, et  
notamment prévoir les conditions  
spécifiques relatives aux services  
pouvant être fournis par leur titulaire,  
Page: 59  
(ii) les certificats de radiodiffusion à  
l’égard de tels appareils, dans la mesure  
où ceux-ci font partie d’une entreprise  
de radiodiffusion,  
(ii) broadcasting certificates in respect  
of radio apparatus that form part of a  
broadcasting undertaking,  
(iii) radio operator certificates,  
(iii) les certificats d’opérateur radio,  
(iv) technical acceptance certificates in  
respect of radio apparatus, interference-  
causing equipment and radio-sensitive  
equipment, and  
(iv) les certificats d’approbation  
technique à l’égard d’appareils radio,  
de matériel brouilleur ou de matériel  
radiosensible,  
(v) any other authorization relating to  
radiocommunication that the Minister  
considers appropriate,  
(v) toute autre autorisation relative à la  
radiocommunication qu’il estime  
indiquée;  
and may fix the terms and conditions of  
any such licence, certificate or  
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authorization including, in the case of a  
radio licence and a spectrum licence,  
terms and conditions as to the services that  
may be provided by the holder thereof;  
(b) amend the terms and conditions of any  
licence, certificate or authorization issued  
under paragraph (a);  
b) modifier les conditions de toute licence  
ou autorisation ou de tout certificat ainsi  
délivrés;  
(c) make available to the public any  
information set out in radio licences or  
broadcasting certificates;  
c) mettre à la disposition du public tout  
renseignement indiqué dans les licences  
radio ou les certificats de radiodiffusion;  
(d) establish technical requirements and  
technical standards in relation to  
d) fixer les exigences et les normes  
techniques à l’égard d’appareils radio, de  
matériel brouilleur et de matériel  
radiosensible, ou de toute catégorie de  
ceux-ci;  
(i) radio apparatus,  
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(ii) interference-causing equipment,  
and  
(iii) radio-sensitive equipment,  
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or any class thereof;  
Page: 60  
e) planifier l’attribution et l’utilisation du  
(e) plan the allocation and use of the  
spectrum;  
spectre;  
(f) approve each site on which radio  
apparatus, including antenna systems, may  
be located, and approve the erection of all  
masts, towers and other antenna-  
supporting structures;  
f) approuver l’emplacement d’appareils  
radio, y compris de systèmes d’antennes,  
ainsi que la construction de pylônes, tours  
et autres structures porteuses d’antennes;  
(g) test radio apparatus for compliance  
with technical standards established under  
this Act;  
g) procéder à l’essai d’appareils radio pour  
s’assurer de leur conformité aux normes  
techniques fixées sous le régime de la  
présente loi;  
(h) require holders of, and applicants for,  
radio authorizations to disclose to the  
Minister such information as the Minister  
considers appropriate respecting the  
present and proposed use of the radio  
apparatus in question and the cost of  
installing or maintaining it;  
h) exiger que les demandeurs et les  
titulaires d’autorisations de  
radiocommunication lui communiquent  
tout renseignement qu’il estime indiqué  
concernant l’utilisation — présente et  
future — de l’appareil radio, ainsi que son  
coût d’installation et d’entretien;  
(i) require holders of radio authorizations  
to inform the Minister of any material  
changes in information disclosed pursuant  
to paragraph (h);  
i) exiger que ces titulaires l’informent de  
toute modification importante des  
renseignements ainsi communiqués;  
(j) appoint inspectors for the purposes of  
this Act;  
j) nommer les inspecteurs pour  
l’application de la présente loi;  
(k) take such action as may be necessary  
to secure, by international regulation or  
otherwise, the rights of Her Majesty in  
right of Canada in telecommunication  
matters, and consult the Canadian Radio-  
television and Telecommunications  
Commission with respect to any matter  
that the Minister deems appropriate;  
k) prendre les mesures nécessaires pour  
assurer, notamment par voie de  
réglementation internationale, les droits de  
Sa Majesté du chef du Canada en matière  
de télécommunications et consulter le  
Conseil de la radiodiffusion et des  
télécommunications canadiennes sur les  
questions qui lui semblent indiquées;  
(l) make determinations as to the existence  
of harmful interference and issue orders to  
persons in possession or control of radio  
apparatus, interference-causing equipment  
or radio-sensitive equipment that the  
Minister determines to be responsible for  
the harmful interference to cease or  
l) décider de l’existence de tout brouillage  
préjudiciable et donner l’ordre aux  
personnes qui possèdent ou contrôlent tout  
appareil radio, matériel brouilleur ou  
matériel radiosensible qu’il juge  
responsable du brouillage de cesser ou de  
modifier l’exploitation de cet appareil ou  
Page: 61  
de ce matériel jusqu’à ce qu’il puisse  
fonctionner sans causer de brouillage  
préjudiciable ou sans en être contrarié;  
modify operation of the apparatus or  
equipment until such time as it can be  
operated without causing or being affected  
by harmful interference;  
(m) undertake, sponsor, promote or assist  
in research relating to  
radiocommunication, including the  
technical aspects of broadcasting; and  
m) entreprendre, parrainer, promouvoir ou  
aider la recherche en matière de  
radiocommunication, notamment en ce qui  
touche les aspects techniques de la  
radiodiffusion;  
(n) do any other thing necessary for the  
effective administration of this Act.  
n) prendre toute autre mesure propre à  
favoriser l’application efficace de la  
présente loi.  
(1.4) The Minister may establish procedures,  
standards and conditions, including, without  
limiting the generality of the foregoing,  
(1.4) Le ministre peut établir les formalités,  
les normes et les modalités applicables au  
processus d’adjudication visé au paragraphe  
bidding mechanisms, minimum bids, bidders’ (1.2) et notamment fixer les mécanismes  
qualifications, acceptance of bids, application d’enchère, la mise à prix, les qualités des  
fees for bidders, deposit requirements,  
enchérisseurs, les modalités d’acceptation des  
withdrawal penalties and payment schedules, enchères, les frais de demande exigibles des  
applicable in respect of a system of  
competitive bidding used under subsection  
(1.2) in selecting the person to whom a radio  
authorization will be issued.  
enchérisseurs, les exigences de dépôt, les  
pénalités pour retrait et les calendriers de  
paiement.  
Page: 62  
ANNEX B: Policy Framework  
36. A wide range of service providers, including NMSPs, regional service providers, and  
wireless Internet service providers (WISPs), have expressed demand for sufficient 3500 MHz  
spectrum to provide 5G services to Canadians. The release of this band presents a key  
opportunity to support the ability of Canada’s telecommunications service providers to offer 5G  
services to consumers, the ability of regional service providers to compete with the NMSPs in  
the provision of 5G services, and the ability of WISPs to offer fixed wireless services in rural and  
remote areas of the country.  
37. However, without pro-competitive measures it is unlikely that the 3500 MHz auction would  
support ISED’s policy objectives. Notably, there is a risk that competition in the 5G mobile  
wireless market could suffer if regional service providers do not acquire sufficient spectrum. In  
their recent submission to the Canadian Radio-television and Telecommunications  
Commission’s (CRTC) review of mobile wireless services in 2019, the Competition Bureau  
found that the NMSPs possess retail market power, indicated by high concentration, high  
profitability, and high barriers to entry. The Competition Bureau also found that in areas where  
the NMSPs face a facilities-based regional service provider, prices are significantly lower. The  
Bureau reported that generally, prices are 35-40% lower in areas where facilities-based regional  
service providers have achieved a market share above 5.5%.  
38. The use of spectrum set-asides has contributed to the growth of regional service providers  
and their competitiveness in the market as they continue to invest in their mobile wireless  
networks and grow their subscribership. A set-aside is likely to provide the increased opportunity  
for regional service providers to acquire sufficient spectrum to compete effectively against the  
NMSPs in the market for 5G services. In particular, access to spectrum in urban areas would  
promote the delivery of comparable services from these regional service providers and increase  
the level of competition in the market.  
39. WISPs provide fixed broadband services to rural and remote areas that are generally  
underserved compared to urban regions, with slower broadband speeds and less choice. Many  
WISPs have noted that access to spectrum continues to be a barrier for service providers in these  
areas.  
40. Accordingly, it is critical that both regional service providers and WISPs have the  
opportunity to acquire 3500 MHz spectrum given it is one of the key bands where 5G  
technologies are likely to be deployed. ISED is of the view that without the use of pro-  
competitive measures, NMSPs have the incentive and means to acquire all the spectrum  
available at auction, significantly hindering competition from regional service providers and  
WISPs.  
41. Spectrum set-asides used in previous auctions reserved between 40-60% of the available  
spectrum for eligible bidders. In the Consultation for the 3500 MHz auction, many stakeholders  
identified 50 to 100 MHz of mid-band spectrum as necessary to provide high-quality 5G  
services. However, there is only a total of 200 MHz in the 3500 MHz band, much of which is  
currently licensed. Due to the high demand for this band and the need to balance access to  
spectrum for many different service providers, ISED is of the view that a set-aside of 50 MHz,  
Page: 63  
accounting for essentially 25% of the total band, will provide the best opportunity to achieve the  
policy objectives for the 3500 MHz auction and will be implemented.  
42. In addition to a set-aside, ISED also consulted on the use of a spectrum cap for the 3500  
MHz auction. While spectrum caps have been used in past auctions to prevent excessive  
spectrum concentration, the application of a cap in the 3500 MHz auction as a standalone  
measure or combined with a set-aside would not support ISED’s policy objectives. Due to the  
existing holdings of existing licensees and the bidding power of the NMSPs, a spectrum cap  
would be ineffective in facilitating access for regional providers and WISPs in many tiers. This  
would have negative consequences for competition in the mobile wireless market, as well as the  
delivery of high-speed broadband in rural and remote regions.  
43. While a set-aside is necessary to promote access to spectrum for smaller service providers,  
ISED recognizes that there are tiers where less than 50 MHz of spectrum is available for auction.  
In many of these tiers, WISPs have existing holdings that reduce the amount of spectrum  
available for auction. Therefore, where there is less than 50 MHz of spectrum available for  
auction, in tiers that do not contain a large (urban) population centre, ISED will not implement a  
set-aside.  
44. On the other hand, it is noted that it is particularly critical that regional service providers  
have the opportunity to acquire enough spectrum to meaningfully offer 5G services and compete  
with NMSPs in highly populated areas. Recognizing the importance of each type of service  
provider and regional differences across the country, ISED will implement a set-aside in all Tier  
4 service areas with a large population centre. In those service areas with less than 50 MHz  
available, all spectrum will be set-aside. This will enable the launch of high-quality 5G services,  
foster competition in the market, and promote access to spectrum in rural and remote areas.  
6.1 Eligibility for set-aside spectrum  
47. In the Consultation, ISED sought comments on the proposal that eligibility to bid on set-  
aside spectrum be limited to bidders registered with the CRTC as facilities-based providers that  
are not NMSPs, and that are actively providing commercial telecommunication services to the  
general public in the relevant Tier 2 service area of interest, effective as of the date of application  
to participate in the 3500 MHz auction.  
Summary of comments  
48. Bell suggested that the proposed criteria were overly broad and they should be narrowed to  
only include providers who are registered with the CRTC as mobile wireless carriers or can  
demonstrate that they have deployed a fixed wireless network, and are actively providing  
commercial wireless services in the relevant Tier 4 area. Specifically, it added that the provision  
of satellite relay distribution and direct-to-home services should not qualify bidders as set-aside-  
eligible. Other stakeholders including Cogeco, Iristel and Québecor also raised similar concerns  
and suggested that providers of satellite relay distribution and direct-to-home services should not  
qualify as set-aside-eligible bidders. Xplornet agreed with other parties that broadcast services  
should not count towards meeting the eligibility criteria.  
Page: 64  
49. Rogers proposed set-aside-eligible bidders should be restricted to bidding only on set- aside  
spectrum in all service areas to increase auction fairness and competition within set-aside  
spectrum. Similarly, TELUS suggested that set-aside-eligible bidders be prohibited from  
bidding on open spectrum. It also strongly opposed the proposed eligibility criteria, including the  
restriction on NMSPs and the limitation to active Tier 2 service areas.  
50. Cogeco and Québecor proposed that eligibility for set-aside spectrum be based on actively  
providing services in the Tier 4 area. Xplornet proposed that providers should have been  
actively providing services in the relevant Tier 4 area as of June 5, 2019, to be set-aside-eligible.  
51. Eastlink proposed that the definition of set-aside-eligible bidders should include the  
provision of mobile or fixed wireless telecommunications services.  
52. Ecotel proposed that eligibility for set-aside spectrum should not be restricted to offering  
services in the relevant Tier 2 area, nor should offering commercial telecommunications services  
be limited to the general public, but should also include industries, vertical markets, private  
networks, Internet of Things and others.  
53. Shaw proposed that providers be required to present proof that they are actively offering  
commercial mobile wireless services in Canada using a radio access network that it owns and  
operates in the relevant Tier 4 area.  
54. BCBA proposed that set-aside eligibility should be different for non-urban areas, with the  
set-aside only available to companies with less than $25 million in annual revenues. BCBA also  
proposed that operators serving a Tier 4 area adjacent to a provincial border be allowed to bid on  
adjacent Tier 4 areas in the neighbouring province.  
55. CanWISP proposed that regional mobile service providers be restricted from accessing set-  
aside spectrum.  
56. Kris Joseph and Michael McNally proposed that the Tier 2 requirement should be limited to  
urban contexts or eliminated.  
57. SaskTel, TekSavvy and EOWC/EORN agreed with the proposed criteria.  
Discussion  
58. ISED has identified three primary issues raised by stakeholders concerning the eligibility  
criteria for set-aside spectrum licences:  
• defining “commercial telecommunications services”  
• defining “general public”  
• identifying the tier at which providers must be actively providing services to be set-aside-  
eligible  
Page: 65  
59. To promote optimal spectrum utilization and deployment, set-aside-eligible bidders must be  
actively providing commercial telecommunications services. Services that are regulated under  
the Broadcasting Act will not be considered as “commercial telecommunications services” for  
the purposes of set-aside eligibility, however all services that are regulated under the  
Telecommunications Act may qualify.  
60. The definition of “general public” was raised as a potential issue concerning service  
providers that offer their services to industries, vertical markets, private networks, and other  
“non-traditional” consumers. For the purposes of this decision, “general public” can include  
businesses, enterprises and institutions, as well as “traditional” residential consumers. Therefore,  
providers who are actively offering commercial telecommunications services to any of these  
consumers will be considered set-aside-eligible as long as they meet the additional eligibility  
criteria.61. ISED is of the view that allowing set-aside-eligible bidders to bid on spectrum in any  
Tier 4 service area within the relevant Tier 2 service area for which they are currently offering  
services would facilitate the expansion of smaller providers’ networks, including to rural areas.  
62. Therefore, eligibility to bid on set-aside spectrum will be limited to those registered with the  
CRTC as facilities-based providers, that are not National Mobile Service Providers, and that are  
actively providing commercial telecommunications services to the general public in the relevant  
Tier 2 area of interest, effective as of the date of application to participate in the 3500 MHz  
auction. Services that are regulated under the Broadcasting Act will not be considered as  
“commercial telecommunications services” for the purposes of set-aside eligibility, however all  
services that are regulated under the Telecommunications Act may qualify. National Mobile  
Service Providers will be defined as “companies with 10% or more of national wireless  
subscriber market share.” The determination of subscriber market share will be based on the  
2019 CRTC Communications Monitoring Report and related open data.  
63. Eligible entities are referred to as set-aside-eligible bidders. Upon application to participate  
in the auction, applicants will be required to indicate in their application whether they are  
applying to bid as a set-aside-eligible bidder on a Tier 2 service area by service area basis.  
64. In its assessment of a bidder's eligibility to bid on the set-aside spectrum, ISED will  
determine whether commercial telecommunications services are actively being provided to the  
general public in the service area by the potential bidder. Potential bidders will be required to  
demonstrate this by providing relevant documentation to ISED, which will include, but not be  
limited to, descriptions of:  
• the services being offered in the service area;  
• the retail/distribution network; and  
• how subscribers access services and the number of subscribers in the service area.  
Decision D2  
Eligibility to bid on set-aside spectrum will be limited to those registered with the CRTC as  
facilities-based providers that are not national mobile service providers, and that are  
Page: 66  
actively providing commercial telecommunications services to the general public in the  
relevant Tier 2 service area of interest, effective as of the date of application to participate  
in the 3500 MHz auction. Services that are regulated under the B