In order to answer this, it is necessary to examine the totality of the evidence to which the applicant referred, and to examine whether the applicant met the burden imposed on him in the present application – a relatively light burden, and lower than that which would be imposed on him in the hearing of the application on its merits. In the framework of this examination, it is also possible to give weight to evidence whose evidentiary value is not high, and there will certainly be significance to the accumulation of such evidence. However, I will reiterate that the existence of such evidence – both individually and cumulatively, may justify the conclusion that the applicant is entitled to the disclosure of documents, but at the same time it may not be sufficient at the next stage of the hearing, when the applicant will have to "lift" a heavier burden.
Did the applicant prove a deliberate violation of the provisions of the license within the required evidentiary standard?
- The Applicant referred to a variety of documents that testify, in his view, that Bezeq acted – through its officers – in a deliberate manner to thwart the reform process both before and after the reform came into effect, and that in the end, a financial sanction was imposed on it in light of its violations of the Ministry of Communications' directives.
Bezeq's conduct before the reform comes into effect
- Some of the documents referred to by the Applicant relate to the communication between Bezeq and the Ministry of Communications prior to the entry into force of the reform. As mentioned, the Ministry of Communications conducted two hearings in connection with the reform, and many inquiries, responses, and letters were exchanged between the parties. In part of its appeals to the Ministry of Communications, Bezeq complained about the manner in which the Ministry of Communications operates, and stated its position that the Ministry of Communications exceeds its authority in its actions and determinations (see in this context Appendices 7, 8, 10, 21 and 26 to the application).
- I am of the opinion that the weight of these documents is very low, if they have any weight at all. These are documents relating to Bezeq's discussion with the Ministry of Communications and the legal steps it sought to take. Bezeq was entitled to raise its claims before the Ministry of Communications and object to the steps it sought to take. In some cases, the allegations were raised as Bezeq's response to requests from the Ministry of Communications. In these cases, there is no doubt that Bezeq was entitled to argue its claims and explain them, while trying to convince the Ministry of Communications regarding them. Had the applicant referred to these documents alone, they would not have been sufficient to determine that he had met the burden imposed on him.
Conclusions of the Final Inspection Report
- The Applicant also referred to other documents that show that the Ministry of Communications' position was that Bezeq acted deliberately and not accidentally in order to try to thwart the reform. One of the documents mentioned by him in this context is the final inspection report that was produced at the end of the supervision process conducted by the Ministry of Communications. This is an official proceeding conducted by the regulator by virtue of its authority, at the end of which the regulator (the Ministry of Communications) decided that Bezeq had violated the provisions of the license that apply to it. A review of the final supervision report indicates that there is a possibility that the violation of the provisions of the service portfolio that were the basis for the imposition of the financial sanction stemmed from the deliberate action of Bezeq, and not as a result of negligent and accidental violations.
In its summary, the final inspection report attributed four violations to the company:
- Acting in contravention of the prohibition set forth in the service file regarding the transfer of information to the marketing and sales department (which was expressed in retention conversations that Bezeq made with customers prior to the completion of the transfer);
- Violation of provisions in the service portfolio that stipulate that oral processes should be allowed to be implemented in the interim period until an automated interface is established;
- Violation of the provision regarding the time set for the transfer of a Bezeq infrastructure subscription from a service provider and the transfer of a subscription between providers on a Bezeq infrastructure;
- and a violation of the provision that prohibits discrimination between the different types of subscribers, i.e., a violation of the provision according to which Bezeq, as an infrastructure owner, did not treat the provision of the service equally between the subscribers of the service providers themselves, as well as between its subscribers and the subscribers of any service provider.
The Supervision Department's report clarified that the violations attributed to the company are only ongoing and substantial violations that could harm the success of the reform, and that the Ministry of Communications chose not to include in its framework violations that were corrected by the company (see p. 22 of the Supervision Department's report).
- I am of the opinion – as I will detail below – that with respect to at least two of the violations attributed to Bezeq (transfer of information to the marketing and sales department and discrimination between different types of subscriptions), there is sufficient evidence to justify the conclusion that at this stage the Applicant met the low burden imposed on him, and presented a preliminary evidentiary basis for the claim that Bezeq's officers acted consciously and deliberately in order to violate the provisions of the Regulator.
- Violation of the prohibition in the service file regarding the transfer of information to the marketing and sales department – With regard to this violation, the final inspection report determined that this was a broad phenomenon and not – as Bezeq claimed – a malfunction or misunderstanding of a directive on the part of one employee or another in the company. This is in light of Bezeq's general manager's remarks regarding the company's holding and termination of the retention talks.
The final inspection report states as follows: