And can we please deal with all the delays?
By Lynn Greiner
TORONTO – The regulatory world is a strange and often not-too-wonderful place, and annually the ISP Summit’s regulatory panel takes a look at its current state. The panel’s theme this year: To Compete or Not Compete in Canada’s Telecom Sector – That is the Question.
This year, moderator Greg O’Brien, editor and publisher of Cartt.ca was joined by panelists Christian Tacit, principal, Tacit Law; Dr. Michael Geist, Canada Research Chair in Internet and E-Commerce Law, University of Ottawa; Laura Tribe, executive director of OpenMedia, a community-driven organization that works to keep the Internet open, affordable, and surveillance-free; and Geoff White, director, legal affairs, CNOC (Competitive Network Operators of Canada).
While the allusion in the title is to Hamlet, a tragedy full of plots and subplots in which almost everyone dies, O’Brien observed that while he hoped the organizers weren’t thinking of mass operator demise, the regulatory sector itself can be thought of sometimes as wildly confusing as the play, with decisions that often look as though they’re written in Old English.
Tacit kicked off the discussion with an overview of CRTC proceedings that started last year. Both dealt with barriers in competitive transport and support structures (poles, conduits, building inside wiring and so forth).
“All of these really are access frameworks and the one that dealt with support structures and transport for remote areas,” he said. “It turned out that those issues aren’t just limited to underserved areas. In other words, areas that don’t have broadband that meets the 50/10 threshold. The problem exists even in urban areas. In fact, in transport, the situation has recently become much worse due to industry consolidation.”
“Interestingly, the Commission has started a proceeding to deal with support structures more broadly,” he went on. “But we don’t have anything to do with transport yet. And this is a significant concern, because for 10 to 12 years, the competitive industry has been complaining about the lack of access of competitive transport or alternatively regulated transport and the problems that’s causing.”
He then segued to the wholesale decision and the many appeals associated with it, noting the process is flawed. The threshold for leave to appeal is too low. “With regards to the CRTC zone appeal process, it’s extremely frustrating there’s never a true end in sight,” he said. “And I think it may be time legislatively to consider imposing some form of time limits on the Commission to make decisions in part one proceedings.” He also pointed out that the government should refrain from commenting on issues currently before the Commission, since that only complicates things.
O’Brien asked Geist to elaborate on the impact on the CRTC of the BTLR Report and this week’s announcement by the Heritage Ministry.
“I don’t think there’s a strong policy justification for a lot of the stuff that they put forward,” Geist said. “And I think there’s some real harms associated with it.” It appeared to him that Industry Canada or ISED had washed their hands of the issues, and they had ceded the field to Heritage, basically turning communications policy into cultural policy. This worries him.
“There’s only so much bandwidth, so to speak, that the Commission is going to have on this stuff and I think there’s a real risk that many of the kinds of issues that are focused for members here will be kind of lost in the shuffle as the cultural policy broadcast type issues take center stage.” – Michael Geist
“They have tasked the CRTC with an exceptional amount of work. It was quite striking. I was on one of the calls yesterday, and on almost every one of the really difficult issues that came up the response from officials at Heritage was well, the CRTC will address those issues,” he said. “If the CRTC is spending their time bogged down focused on what are bound to be contentious, lengthy hearings in this cultural space, what does that say about the kinds of files that Chris was just talking about, which themselves seem to take forever and just layer up? There’s only so much bandwidth, so to speak, that the Commission is going to have on this stuff and I think there’s a real risk that many of the kinds of issues that are focused for members here will be kind of lost in the shuffle as the cultural policy broadcast type issues take center stage.”
O’Brien agreed, noting that previous CRTC chair Konrad von Finckenstein once told him TV issues or cultural issues suck all of the air out of the room, and use all of the resources of the CRTC because it’s such a sexy issue, and is front and centre with consumers.
This is frustrating for Tribe, who has been hearing about how important universal connectivity is, and about the still-unlaunched Universal Broadband Plan, only to see legislative priorities veering off in a different directions, occupying the CRTC’s time.
“It really feels like the priorities are out of whack. It’s really those priorities around guaranteeing that you have sufficient access and affordability that are the key priorities that people are looking at, trying to figure out how they’re going to survive the winter,” she said. “It is not in any way saying that broadcasting reform didn’t need to be tackled. But when you look at the priorities of where people are right now, in Canada, it just feels misaligned.”
“What I’m hearing from my colleagues is that there’s a question of priorities right now, and what the priorities ought to be,” White added. “And I think a lot of CNOC members would agree that some of these things are live issues that need to be addressed, even on the cultural side of things. But this question of conflicting priorities is ultimately a question, I think, of leadership.”
Mixed messages abound. There was, he said, the BTLR report by the expert panel tasked with making recommendations about broadcasting and telecom laws, plus addition of confusion from the government’s digital charter, plus the government expressing concern that there’s an imbalance in investment in certain cases while insisting it wasn’t interfering with the rates decision. On top of that, the CRTC’s planned review of wholesale wireless framework appears to be delayed.
It’s worth noting the industry also awaits a verdict on disaggregated wholesale high speed access, too.
“The longer these things go, the more problematic it is to CNOC members,” White noted. “CNOC members are out there competing vigorously on price, on quality and yes, on customer service, and these are the things CNOC members really want. The problem is when the incumbents are availing themselves of these three different appeal routes, which as chairman Scott is right to point out, those are on the books, those are there to be used. The problem is when those are being used, the incumbents are having these multiyear head starts and we’re slowing everything down with procedural requests. It’s costing the smaller players a lot of money and legal bills as well. It’s ultimately diluting what is fundamentally a sound set of policy objectives in our telecommunications law.”
“The Telecommunications Act is fundamentally sound the way it is… It calls for two things that CNOC members expect: just and reasonable rates, and no unjust discrimination. With those two provisions alone, the CRTC has what it needs. It’s just a question of putting a stop to some of these delays, and also setting the priorities straight for the industry.” – Geoff White, CNOC
The delays, he said, are resulting in death by a thousand cuts for wholesalers.
“But the Telecommunications Act is fundamentally sound the way it is,” he said. “It calls for two things that CNOC members expect: just and reasonable rates, and no unjust discrimination. With those two provisions alone, the CRTC has what it needs. It’s just a question of putting a stop to some of these delays, and also setting the priorities straight for the industry.”
Tacit agreed. “What’s needed is for them to have a policy just like they do in many other areas that basically says, the minute you start providing something for which there’s no wholesale platform, two things are going to happen,” he said. “First, you’ve got to file a tariff for the retail service, because it is not a competitive service. There’s no automatic exemption in the Act from tariff regulation for a noncompetitive service. And two, you’ve got to quickly file terms and conditions.”
The glacial speed of the proceedings and government machinations means that CNOC members are turning away customers who want to use their services, White added, and they still have no idea when to expect a decision.
Communities don’t even know that anything is happening, Tribe added, but she doesn’t think it’s the fault of the Telecom Act. Rather it’s CRTC processes, complicated when the government weighs in. “And I think, despite whatever good intentions might be behind it, the execution is really making it even more glacial,” she said.
“From a political perspective, the CRTC has always been very convenient for politicians as a place to blame,” Geist observed. “If policies are slow, and things aren’t moving forward, they can simply say, well, it’s the Regulator that’s doing it, I think we need to shine the mirror back on the government in some of these regards.” Canadians and CNOC members are stuck in the middle.
White added that although the CRTC is an arm’s length agency, he can’t imagine that the government isn’t reaching out to it to help it understand government policies. He believes there should be a requirement for the CRTC to regularly measure the state of competition.
“I think it’s a balance,” Tacit said. “I think there are many things the Commission could do on its own, but I do think there is some institutional reform required to streamline these various appeal routes, the time frames associated with decision making and the time it takes to make these appeals and how many of them there are. That’s a really big problem. Also, if the Commission is unwilling or unable, for some reason, to deal head-on with the head start issue, that needs to be addressed legislatively.”
O’Brien concluded the panel by asking each member for the one thing they would change if they could wave a magic wand and make it happen.
“A clear sense of direction from the CRTC and a timetable for all these decisions is the best thing CNOC members could use right now, as we plan for the future,” White said.
Geist asked for a coherent national digital policy that the government is willing to act on, and Tribe would make the internet an essential service, with government money behind it.
And Tacit? “No incumbent head starts would be at the top of my list.”
