GATINEAU – Wireless industry stakeholders are still at loggerheads over a number of issues pertaining to a wireless code of conduct. They include three-year contracts, the co-existence of the code with provincial consumer protection legislation and notifications of data and fee caps, among others.
On these matters, the Big Three – Bell Canada, Rogers Communications and Telus – remain united. They all agree that banning three-year contracts as has been suggested by some consumer advocates and the new entrants isn’t necessary given the clear language on earlier termination fees (ETF).
The ETF formula, in conjunction with the unlocking and cancelation policies, “effectively provides consumers with all of the flexibility they need to cancel their fixed term service any month they want, subject to paying off the amount of the device economic incentive,” Bell says in its final reply to the CRTC’s proceeding. Final submissions were due in on Friday, March 22.
Rogers agrees with Bell (gasp!), noting that parties calling for the elimination of three-year contracts fail to recognize the impact that the early termination fees play in giving consumers the ability to switch providers. “The code already allows a consumer to terminate their agreement at any time with no further payments owing other than any outstanding amounts based on the device subsidy. As a result, under the ETF formula, consumers who enter into three-year contracts and cancel after two years are exactly as well off as consumers who entered into two year contracts in the first place,” writes Rogers.
Wind Mobile counters that if the Commission doesn’t ban three year contracts it will have missed an opportunity to deal with the single biggest complaint consumers raised in the proceeding. Failing “to address this concern would be met with widespread outrage and, Wind Mobile would suggest, cynicism about the value of public participation in Commission proceedings,” says the company.
Mobilicity argues that the Commission should be skeptical of the incumbents’ position that without three-year contracts Canadians wouldn’t be able to get the latest and greatest devices. Besides, the company adds “over the long run, Canadians are paying exorbitant sums for the easy ‘credit’ that the industry is only too eager to extend to them for the latest gadgets, on condition of being locked in to long-term contracts.”
On the issue of notifications and caps on additional overage fees, the Public Interest Advocacy Centre (and its partner organizations) believes it will still be in the public interest to mandate caps on all additional services because bill shock might not only be related to international data roaming. It suggests that because nationwide calling isn’t as common in Canada as it is other nations, “domestic roaming charges continue to apply to regional wireless carriers.”
In addition, the consumer advocacy group says that the use of caps is becoming “standard practice” in many countries around the world. It points to “the regulated ‘bill limit’ for data roaming required in the European Union, the forthcoming Spend Management Tools required by Australia that include hard caps, and the GSMA Data Roaming Transparency Initiative.”
Telus notes that notifications should be enough to inform consumers to make decisions so as to avoid bill shock. Cutting their service off when they hit a predestined cap isn’t the answer. “What we’ve consistently said is that so long as consumers have access to robust usage monitoring tools and receive adequate notifications of additional charges, consumers are given sufficient information and the tools to avoid unexpected charges, such that there would be no need for usage caps on post-paid services,” the company says. In fact, Telus adds, that this is exactly what it does already. Consumers can access their usage statistics either online or through their MyAccount app.
Whether or not a national wireless code of conduct should usurp or co-exist with provincial consumer protection legislation was another point of contention throughout the week-long hearing and proceeding in February (which Cartt.ca covered end-to-end). The Canadian Wireless Telecommunications Association and the Big Three argued that wireless services fall under federal purview and as a result a wireless code established by the CRTC would supersede any provincial legislation.
Bell argues that in addition to being an administrative nightmare, the concept of a national code that has to take into account other provincial rules “would be counter-intuitive and certainly contrary to the Commission's objectives of empowering consumers with plain language information to clutter the code's clear, succinct, plain language” with other provincial laws and regulations.
The Consumers Council of Canada raised the idea of terminal attachment equipment during its appearance before the CRTC, noting that such devices and contracts fall under provincial purview.
Telus says this argument is plain wrong. “Airports and trains are property, and plane tickets and rail tariffs are contracts, but that does not bring them within provincial jurisdiction. Telecommunications tariffs and contracts govern the terms and conditions applicable to the provision of telecommunications services and are indisputably federal, to the exclusion of other purported regulatory regimes,” the company writes.
Another issue where parties remain divided is how the code should be applied. Some suggested that the code could be applied retroactively while others said that the CRTC would overstep its authority if it did so.
Bell points to an opinion filed by noted telecom lawyer Hank Intven in the proceeding as evidence. The Commission can’t apply the code retroactively “to alter the conditions of pre-existing wireless contracts in derogation of the wireless service provider's vested rights absent a clear grant of authority in the Telecommunications Act,” says the legal opinion.
A Commission decision on a wireless code of conduct is not expected until the summer.
