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7 August 2018 Submitted via GC Key

Mr. Claude Doucet

Secretary General
Canadian Radio-television and Telecommunications Commission
1 Promenade du Portage
Ottawa, ON
K1A 0N1

Re: Expedited application for interim and permanent relief to address deliberate actions by Telus
to cause calls to Iristel and Ice Wireless end users to fail.

Dear Mr. Doucet,

SUMMARY

1. Iris Technologies Inc., (“Iristel”) on behalf of itself and its affiliate Ice Wireless Inc. (“Ice Wireless”)
is submitting this application pursuant to Part 1 of the Canadian Radio-Television and
Telecommunications Commission Rules of Practice and Procedure and sections 27(2) and 36 of
the Telecommunications Act (“the Act”). In the balance of this Application, references to Iristel also
implicitly incorporate references to Ice Wireless, where applicable.

2. Iristel is seeking expedited interim relief and final relief to address illegal and deliberate conduct by
Telus Communications Inc. (“Telus”) that is causing calls from Telus end users to certain Iristel and
Ice Wireless end users to fail.

3. Following complaints from Iristel customers, it was determined that calls originating from Telus’
network to certain Iristel terminating numbers are being redirected to an automated recording and
not being connected. After extensive testing, it was determined that this condition is unique to Telus’
network and does not occur with calls that originate from other Canadian or foreign carriers, unless
roaming on Telus’ wireless network. Iristel’s records indicate that this situation has been continuous
since about May 29, 2018.

4. Iristel has clear and unequivocal evidence including an admission from Telus that this course of
conduct is intentional, and that Telus has no intention to cease it. See attached email
correspondence from May 29 to June 13 in Attachment 1.

5. More specifically, Telus has intentionally reduced capacity on certain toll transit circuits that carry
Telus traffic to Iristel numbers directly causing an overwhelming amount of congestion that causes
the majority of calls from all Telus end users to certain Iristel end users to fail.
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6. Despite numerous attempts, Iristel has not been able to resolve the issue through informal means,
including discussions with Telus management, and alternate dispute resolution means in which
Telus has refused to participate.

7. Telus’ conduct is in contravention with section 36 of the Telecommunications Act which prohibit
any carrier from controlling the content of telecommunications carried by it for the public without
consent from the Canadian Radio-Television and Telecommunications Commission (“the
Commission”). Telus’s conduct is also a violation of section 27(2) of the Act as this conduct clearly
unjustly discriminates not only against Iristel but against the end users of both Iristel and Telus.

8. Iristel is requesting interim relief consisting of Commission orders compelling Telus to restore its
capacity to the pre-May 29 state and to take whatever measures are necessary to ensure that calls
from Telus end users to Iristel end users are terminated correctly.

9. Iristel is also requesting final relief consisting of:

a. Confirmation that Telus must maintain its network in a way that calls to Iristel customers
are consistently terminated; and

b. An order from the Commission that compels Telus to maintain an adequate capacity on its
network to properly terminate calls that originate from its end users, or that transit through
its network, and terminate on Iristel’s network.

10. Certain information contained in this Application is being filed in confidence pursuant to Section 39
of the Telecommunications Act. This information includes correspondence between Telus and
Iristel, as well as correspondence and trouble ticket logs from Iristel customers. This information is
commercially sensitive and is consistently treated as confidential by Iristel. There is no public
benefit to the disclosure of this information, therefore public interest in the disclosure does not
outweigh the harm that would be caused to Iristel, its customers and business partners that would
result from such disclosure. A confidential version, with the exception of Attachment 2 which
contains Iristel’s customer communications, is being sent to Telus as the bulk of the information
included in this application is already known to Telus and it would be impossible for Telus to
respond to the fully abridged version. An abridged version is being filed on the public record, with
“#” indicating information filed in confidence.

DETAILS AND EVIDENCE OF DELIBERATE ACTIONS BY TELUS TO HARM IRISTEL

11. # #
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12. # #
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13. # #
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14. It appears, in hindsight, that Telus’s actions motivated by the desire of Telus to limit its cost of toll
transit through these trunks. While Iristel does not dispute that Telus has a right to route its traffic
in whichever manner Telus deems most efficient, Telus does not have the right to refuse to route
traffic through a trunk if it does not have any other means of routing the traffic. # #
# #
# #
# #

15. Iristel has received numerous complaints from its customers and business partners regarding calls
from Telus customers failing. # #
# #
# #
# #
# #

ATTEMPTS TO SETTLE THE DISPUTE THOUGH ALTERNATE MEANS HAS FAILED

16. Iristel has unsuccessfully attempted to resolve the situation directly with Telus. # #
# #
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# 1 #
# #
# # The blocking of calls by Telus continues
to this day.

17. Iristel has become aware during the preparation of this application that Telus has filed a part 1
application against Iristel regarding allegations of traffic stimulation. Iristel believes that while the
basis for Telus’ complaint may be the underlying motive for the illegal actions taken by Telus
described herein, the two applications should continue to be treated separately.

TELUS’ ACTIONS VIOLATE SECTION 36 AND SECTION 27(2) OF THE TELECOMMUNIATIONS ACT

18. Telus’s actions amount to deliberate blocking of calls to Iristel’s network and are a clear violation
of Section 36 of the Telecommunications Act. Section 36 prohibits a carrier from controlling content
or influencing the meaning or purpose of telecommunications carried by it for the public. By blocking
calls, Telus is effectively making the content of that call meaningless and is therefore in
contravention of section 36 of the Act. In Telecom Regulatory Policy 2009-657 Review of the
Internet traffic management practices of Internet Service Providers the Commission analysed the
scope of Section 36 and found that if an Internet Traffic Management Policy (ITMP) resulted in the
outright blocking of the delivery of content to an end-user without prior Commission approval, the
ITMP would be prohibited under section 362. While the subject of this application relates to voice
calls, as opposed to Internet traffic, the application of the principle is same in both cases. Blocking
any voice call effectively renders its content meaningless, and as such, absent prior Commission
approval, Telus is contravening section 36 of the Act.

19. Telus’s behaviour also constitutes a violation of section 27(2) of the Telecommunications Act. Telus
is deliberately manipulating its network and abusing its status as an ILEC to force a desired
commercial outcome with Iristel. This act unjustly discriminates against Iristel, its customers, and
against Telus’ customers. By blocking Iristel specific traffic, Telus is putting Iristel at a severe and
unjust disadvantage versus other carriers, # #
# #
# # Telus has essentially manipulated its network to create a situation for customers

1
#

#
2
TRP 2009-657 Review of the Internet traffic management practices of Internet Service Providers, paragraph 122
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whereby the only solution available is to stop using Iristel as a carrier. Because Telus, as an ILEC,
is in a dominant position, customers are not likely to want, or in some cases be able to, stop using
Telus’ service in order to be able to reach Iristel customers. Conversely, Iristel customers are more
likely to abandon Iristel’s services in order to be able to receive calls from Telus callers. Telus has
unjustly discriminated against its own customers who expect, and have a right, to have their calls
terminated correctly regardless of who is the terminating carrier. Instead of engaging with Iristel to
address Telus’s financial concerns by migrating traffic terminating on Iristel facilities to another
interconnection arrangement with Iristel in an orderly manner that does not affect end users
adversely, Telus is trying to pressure Iristel in a manner that damages the integrity of the Canadian
telecommunications network. Telus has previously shown disregard for the “collateral damage”
caused by its actions when, in 2005, in order to block a pro-union website during a labour dispute,
they also blocked 766 other unrelated websites.3

TEST FOR INTERIM RELIEF

20. The Commission has stated:

To assess applications for interim relief, the Commission’s practice is to apply the
criteria set out by the Supreme Court of Canada in Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd. [1987] 1 S.C.R. 110, and modified in RJR-
MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311. These criteria
(the RJR-MacDonald criteria) are that (i) there is a serious issue to be determined,
(ii) the party seeking the interim relief will incur irreparable harm if the relief is not
granted, and (iii) the balance of convenience, taking into account the public interest,
favours granting the interim relief. To be successful, an applicant must establish
that it meets all three criteria.

21. There is no doubt that there is a serious issue to be determined in this proceeding. The conduct by
Telus in blocking traffic is prima facie illegal and is severely disrupting Iristel and end-customers.

22. Telus’s conduct is causing irreparable harm to Iristel that has spilled over to Iristel’s and Telus’s
customers. Telus, though its actions, has compromised the integrity of the Canadian
telecommunications network and calls continue to fail on a daily basis as a result.

23. The Commission has previously determined that ““[i]rreparable” harm requires an analysis of the
nature of the harm, rather than the magnitude. Harm is more likely to be irreparable where there
is an unquantifiable loss or a loss that the applicant may not be able to recover.” Iristel has suffered,

3
OpenNet Initiative. “Telus Blocking of Labor Union Web Site Filters 766 Unrelated Sites”. Retrieved from
https://opennet.net/bulletins/010/ONI-010-telus.pdf
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and continues to suffer, irreparable harm as a result of Telus’ actions. # #

# #
# #
# # More specifically, the reputational
harm done to Iristel is irreparable.

24. Telus, having a number of other means to limit its perceived harm (such as negotiating an
arrangement with Iristel to rerout traffic in an orderly manner), has elected to choose the course
that causes the most harm to Iristel, regardless of the damage done to innocent third parties. Given
the impact that Telus’ actions are having on innocent third parties, namely its own customers, and
Iristel’s customers, there is little doubt that the balance of convenience favours interim relief. In
particular, the effort required for Telus to alleviate the congestion involves a few minutes for a
technical resource to configure existing trunks to be unblocked.

REQUEST FOR FINAL RELIEF

25. Iristel requests that the Commission order Telus to maintain adequate capacity on its network to
allow all calls to be terminated correctly and to avoid causing congestion in a deliberate manner
now and in the future. Telus clearly has the means to do so as there are # #
# # that could potentially handle the current traffic. Iristel notes that # #
# # in the trunk groups have been administratively disabled by
Telus. Reenabling them would involve a trivial technical effort for Telus.

26. Iristel also requests that the Commission clarify that any action taken by a carrier to deliberately
choke circuits in a manner that reduces existing capacity below the minimum level needed to
carry existing traffic requires Commission approval as per section 36 of the Telecommunications
Act. In Telecom Regulatory Policy CRTC 2009-657, the Commission ruled “that where an ITMP
would lead to blocking the delivery of content to an end-user, it cannot be implemented without
prior Commission approval.”4 This legal principle applies equally to the blocking of voice traffic.
No carrier may block voice calls absent Commission approval, pursuant to Section 36 of the Act.

IRISTEL’S REQUESTED RELIEF IS CONSISTENT WITH THE POLICY OBJECTIVES OF THE

TELECOMMUNICATIONS ACT

27. Iristel’s request will further the policy objectives of the Telecommunications Act. Specifically,
Section 7 of the Act states:

4
Telecom Regulatory Policy 2009-657, paragraph 122
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“…that the Canadian telecommunications policy has as its objectives

(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;

(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;”

[emphasis added]

Telus’ blocking of calls to further its commercial goals is completely antithetical to the notion of
orderly development, reliability and high quality. Indeed, if carriers were allowed to take this sort of
action, the Canadian telecommunications system would be transformed into an anarchic “wild west”
landscape where amongst carriers might makes right, and customers have no expectation that their
telephones will function correctly from day to day. An order from the Commission forcing Telus to
restore its network to the pre-May 29 state with respect to Iristel will further the aforementioned
policy objectives. Iristel calls on the Commission to grant the requested relief, thereby restoring
customer confidence in the Canadian telecommunications system and furthering the policy
objectives of the Act.

CONCLUSION

28. Telus, through unilateral action, has reduced capacity certain trunk groups that carry voice traffic
from Telus to Iristel, to such an extent that regular telephone calls are not being completed. As a
result, Telus own customers, Iristel’s customers and Ice Wireless’ customers are unable to
communicate reliably. Telus actions have compromised the integrity of the Canadian
telecommunications system by deliberately blocking traffic, in violation of Section 36 of the
Telecommunications Act.

29. In addition to the deleterious effects on users of the Canadian telecommunications system, Telus
has abused its dominant market position, in violation of Section 27(2) of the Act and has caused
irreparable harm to Iristel’s business interest and reputation, and to end-users of both Telus and
Iristel.

30. Iristel calls on the Commission to grant interim and final relief by ordering Telus to relieve the
congestion of the affect trunk groups.
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All of which is respectfully submitted,

Jean-François Dumoulin
VP Regulatory and Government Affairs

Cc: Chris Seidl, CRTC

Michel Murray, CRTC
Telus Regulatory

*** End of Document ***

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Attachment 1

Correspondence between Iristel and Telus technical resources.

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Attachment 2

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Attachment 3

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Attachment 4