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Noah Zivitz

Managing Editor, BNN Bloomberg

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Telus Corp. and BCE Inc.'s Bell division have joined a push to compel the Canadian Radio-television and Telecommunications Commission (CRTC) to delay a key component of its review into Rogers Communications Inc.'s planned $20-billion takeover of Shaw Communications Inc.

The CRTC -- one of three regulators that has to green light the transaction -- is currently scheduled to hold a hearing on Nov. 22 to consider Rogers' deal with Shaw. A growing chorus is arguing the hearing should be postponed because of the power struggle at Rogers that has landed in the B.C. Supreme Court. However, the campaign to delay is meeting opposition from Shaw and its takeover partner.

The initial call to delay the hearing came on Monday, when the Public Interest Advocacy Centre (PIAC) and the National Pensioners Federation (NPF) formally asked the CRTC to adjourn the hearing.

"PIAC-NPF are concerned that the Commission will not be able to conduct the hearing in a manner that is fair to all parties and protects the public interest until and unless the confusion surrounding the effective control of Rogers is adequately resolved," wrote John Lawford, counsel to PIAC-NPF, in a letter dated Nov. 1

That same day, Bell (which shares the same owner as BNN Bloomberg) threw its support behind that request, pointing to an "unprecedented" situation unfolding at Rogers.

"It would not be appropriate or fair to interested parties who are participating in this proceeding to proceed with the oral hearing prior to a final resolution of the current dispute over control of Rogers," wrote Robert Malcolmson, Bell's chief legal and regulatory officer, in his letter to the CRTC's secretary general. 

Telus followed that up one day later, arguing it's a matter of public interest to postpone the proceedings. 

"In the present circumstances, the public interest requires that the CRTC's public hearing not proceed until the issue of corporate control of Rogers has been ascertained with certainty. This is the only way to ensure a fair and effective public review process," wrote Stephen Schmidt, vice-president of telecom policy and chief regulatory legal counsel at Telus, in a letter to the CRTC on Tuesday. 

Rogers, however, is pushing back.

"Rogers strongly opposes the requests for adjournment," wrote its senior vice-president for regulatory matters, Ted Woodhead, in a response to the CRTC on Tuesday. 

"The requests are without merit. Rogers and Shaw remain steadfastly committed to the timely receipt of the necessary regulatory approvals and closing of this transaction.”
                        
Woodhead went on to argue the parties pushing for the postponement haven't "provided any credible evidence" that the public interest would be harmed by sticking with the Nov. 22 hearing date. 

"Any suggestion that the current legal dispute creates any uncertainty in respect of the process before the Commission is tactical and should be given no consideration," he wrote.

And in a letter to the CRTC on Wednesday, a representative for Shaw Communications echoed that sentiment.

“Contrary to PIAC-NPF’s misplaced concern, there is no uncertainty concerning the application before the Commission, and there is no uncertainty concerning Rogers’ and Shaw’s complete and unwavering commitment to the historic combination,” wrote Paul Cowling, Shaw’s senior vice-president, general counsel and regulatory affairs, in the letter.

He went on to state that Shaw believes Bell and Telus are backing the bid to delay the hearing “in a transparent attempt to game the Commission’s process and create unacceptable regulatory uncertainty surrounding a transaction that is clearly in the public interest.”

Rogers struck its deal to buy Shaw for $40.50 per share in cash in March. At the time, the two companies said they expected the deal to close in the first half of next year. Other than the CRTC, the deal also requires approval from the Competition Bureau and the Ministry of Innovation, Science and Economic Development.