Shaw Communications Inc.’s assertion that its wireless business has not been profitable “doesn’t stand up to scrutiny,” a lawyer for the Competition Bureau told a hearing into Shaw’s proposed $26-billion merger with Rogers Communications Inc.
Lawyers for the Competition Bureau made their final arguments in front of the Competition Tribunal on Tuesday, wrapping up a case that has spanned four weeks and included evidence from 45 witnesses. The hearing has largely focused on whether selling Shaw’s Freedom Mobile to Quebecor Inc.’s Videotron Ltd., a deal valued at $2.85-billion, would maintain competition in the wireless market. The sale would prevent Rogers from absorbing Freedom into its own wireless division.
The Competition Bureau is asking the tribunal to block the merger of Canada’s two largest cable companies, arguing that a “complex web” of agreements between Videotron and Rogers would leave Freedom, Canada’s fourth-largest wireless carrier, in a position of “severe vulnerability” after the transaction. The contracts govern the terms under which Videotron could access cable infrastructure in Western Canada to connect cellphone calls.
Representatives of Calgary-based Shaw have told the tribunal that Freedom, which serves 1.7 million customers in Ontario, Alberta and B.C., has not generated any free cash flow, and that Shaw has yet to recoup the $4.5-billion it has invested in wireless since 2016.
The cable companies say that combining Freedom Mobile with Videotron’s Quebec wireless business would result in a stronger, near-national wireless competitor with a larger portfolio of spectrum licences. (Spectrum refers to the airwaves used to transmit wireless signals.)
Alexander Gay, one of the lawyers representing the Competition Bureau, said Shaw’s claim that it was struggling financially and had to “sell the farm chairs in order to survive” is not supported by the facts.
Mr. Gay also accused the telecom of attempting to “slice, dice and distort” financial information. For instance, Shaw’s claim that Freedom Mobile was not generating free cash flow is based on a skewed definition of the metric that isn’t used in any of the company’s financial reporting, he argued.
“Beware of the hollow statements and stick to the facts,” Mr. Gay entreated the tribunal.
Paul Klippenstein, another lawyer representing the Competition Bureau, argued that the cable companies have failed to prove the “vast majority” of the cost savings, or efficiencies, that they claim would flow from their merger. Canadian competition law allows mergers, even anti-competitive ones, to close if they generate lower total costs for the combined businesses.
The tribunal is aiming to release a decision by the end of the year if possible. Rogers and Shaw have raised concerns that the deal could fall apart if it doesn’t close by Jan. 31. Rogers will have to pay millions to its bondholders to extend its deadline with Shaw past the end of this year.
Federal Court Chief Justice Paul Crampton, who is overseeing the hearing, said on Tuesday that it may be challenging to meet that deadline, in part because of continuing disagreements between the two sides over issues such as definitions of the relevant markets and products.
“We’ve got less than 10 days between now and Christmas,” Chief Justice Crampton said. “So anything the respondents can do to help facilitate our attempt to write up a decision before the end of the year, if we can otherwise reach one, would be greatly appreciated.”
John Tyhurst, another lawyer representing the Competition Bureau, urged Chief Justice Crampton not to rush the process.
“It’s critical that the tribunal take the time necessary to carefully consider the record before rendering a decision,” he said.
The merger also requires the approval of Industry Minister François-Philippe Champagne, whose department is responsible for reviewing the transfer of Shaw’s spectrum licences to Videotron.
Shortly before the hearing began, Mr. Champagne attached a number of conditions to his approval, including that Quebecor commit to bringing down cellphone bills. Quebecor has agreed to those conditions.
Rogers and Shaw are slated to deliver their closing arguments on Wednesday.