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Rogers says defence of false advertising case a ‘slam dunk’

Rogers Communications Inc. has recorded a slowdown in its wireless data revenue growth rate in its past two quarterly reports as more consumers chose cheaper data plans.

Adrian Wyld/The Canadian Press

Rogers Communications Inc. came out swinging in a Toronto courtroom on Thursday, saying the false advertising allegations from the federal Competition Bureau over the company's "fewer dropped calls" claims are "completely without merit."

"We say that effectively our case is a slam dunk," Kent Thomson, Rogers's lead lawyer on the case, said in his opening statement in the trial over the allegations.

The Competition Bureau alleges that Rogers used a "false and misleading" ad campaign in 2010, when it launched its discount Chatr cellphone service by boasting that it had "fewer dropped calls" than other new wireless carriers. The bureau, which is seeking a $10-million fine, says the claim was false and not backed up by "adequate and proper tests" as required by law.

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Mr. Thomson said Rogers maintains the ads were truthful and that its evidence will show that its testing, using so-called "drive tests" that involve making calls on competitors' networks from specially equipped trucks, is commonly accepted in the industry here and in the United States and Europe.

Earlier, lawyer Tom Curry, acting for the Commissioner of Competition, outlined the regulator's case against Rogers, detailing the "extensive" ad campaign for Chatr, which he said did not refer to any of Rogers's testing.

The bureau alleges that Chatr did not have fewer dropped calls than all other new carriers, as it claimed, in the months after the campaign launched in Montreal, Ottawa and Toronto.

But even in cities where the ads' claims were true, the bureau alleges that the message was misleading because the difference in dropped call rates over all cases was extremely small, less than one additional dropped call in 500, Mr. Curry said.

"The difference is so slight as to be imperceptible by a subscriber," Mr. Curry told the court Thursday. "And as such it is misleading to suggest that a Chatr subscriber had fewer dropped calls."

The two sides are clearly expected to do battle over Rogers's testing. The bureau insists that so-called network data on dropped calls, gleaned from the carriers' computers, is far superior to Rogers's drive tests, which Mr. Curry says were not conducted properly.

Mr. Curry said Rogers conducted only limited drive tests, in Toronto, Vancouver and Ottawa, before making its claims. Data for tests in Calgary were lost. No tests were conducted in Edmonton, and no tests were done of Public Mobile's network – allegedly because Rogers claimed it was not able to buy a Public Mobile handset – before the claims were first made, he told the court. Mr. Curry said the court will hear from a statistics expert who will deem Rogers's claims "misleading."

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Mr. Thomson said Rogers will produce its own experts who say otherwise, and said the expert the bureau intends to rely on does not even have a PhD in statistics.

Mr. Curry said the way Rogers conducted its drive tests means they do not meet the "adequate and proper" standard in the Competition Act for product performance testing to support advertising claims. Network data is the best source, he told the court: "This isn't a van driving around for a day here and a day there. This is every call."

Mr. Thomson tsaid he bureau's insistence on using network data makes no sense in the industry, which has long relied on drive tests: "We say the Commissioner is literally out in left field making that submission."

The trial is expected to continue for several weeks.

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About the Author
Toronto City Hall Reporter

Jeff Gray is The Globe and Mail’s Toronto City Hall reporter. He has worked at The Globe since 1998. From 2010 to 2016, he was the law reporter in Report on Business, covering Bay Street law firms and white-collar crime. He won an honourable mention at the National Magazine Awards for investigative journalism in 2010. More

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