CRTC should have more authority in telecom, PIAC lawyers say

A recent paper from the lawyers representing the Public Interest Advocacy Centre (PIAC) calls for changes in government structure that would give the CRTC more uncontested authority in governing the telecommunications sector. The report, called Front and Centre: The Consumer Interest in Telecommunications and Broadcasting in Canada, was posted on the website Scribd on Monday and presented at the New Developments in Communications Law and Policy conference in Ottawa earlier this month. John Lawford and Geoffrey White recommend in the paper that the CRTC should take over management of wireless spectrum from Industry Canada, and that federal cabinet’s authority to overrule CRTC decisions be revoked, among other recommendations. In a phone interview, Lawford said the precedent with other federal regulators, such as the National Energy Board and the Transportation Safety Board, is that their decisions stand and are not subject to political interference. “If the legislature says, ‘We’re not doing telecom because we need an expert regulator,’ then let the expert regulator do telecom,” he said. Lawford said putting more authority in the hands of appointed policy-makers at the CRTC and out of the hands of elected leaders who make up the cabinet would increase the transparency and accountability of decisions. “I don’t see necessarily as being open and public … because it’s really the cabinet’s power,” he said. “It will be decided inside the cabinet wall by the governing party, and that’s that.” The CRTC, by contrast, he said, has an open process for decision-making in which the public can participate. Lawford added that the CRTC is less subject to being politicized and influenced by lobbying than cabinet ministers. Elected governments would still be able to govern the telecommunications industry through legislation, and disputes over the jurisdiction of the commission could be decided by the courts, he said. Cabinet has overturned CRTC decisions, or at least threatened to do so, in recent years. In 2009, it moved to overrule the commission’s determination that Globalive Wireless Management Corp., parent of Wind Mobile, should not be allowed to operate in the Canadian market because of its foreign ownership, and then-industry minister Tony Clement said in a 2011 Twitter post that a decision by the CRTC to allow usage-based wholesale billing by Internet service providers would be overturned unless the commission conducted a review. Both of those cases took place during Konrad von Finckenstein’s time as chairman of the CRTC. Von Finckenstein said in a phone interview he disagrees with the paper’s position on taking away cabinet’s right to overrule the CRTC. “The power of appeal to cabinet, I think, is very good in order to provide policy co-ordination within,” he said in a phone interview. “If, for some reason, the regulator goes off on a tangent that the government thinks is inappropriate or is inconsistent with government, a chance to clarify it.” On the issue of giving the CRTC control over spectrum, Lawford said: “Every other large Western regulator has all the spectrum stuff linked in with telecom regulation and broadcasting in a single regulator. They don’t screw around with having it in a government department which is open to lobbying and has political goals.” The current system of having Industry Canada manage spectrum is “a very awkward process and it’s very non-transparent,” he said. Giving CRTC responsibility for spectrum would allow it to “harmonize the spectrum with the other decisions they are making in the wireless market. Now that they are getting into wireless-market regulation … and they get to thinking about how much competition there is in the wireless market, they don’t have any say on spectrum; it’s quite awkward.” Von Finckenstein said it “probably would make some sense” for some of the administrative and daily dealings regarding spectrum to fall under the commission’s management, though major decisions on what specific spectrum should be used for and how it is distributed should remain the responsibility of Industry Canada. Among the other recommendations the PIAC lawyers made in their paper is to repeal a 2006 policy direction from the government to the CRTC that it use market forces “to the maximum extent feasible” to achieve its policy objectives. Lawford said the directive “muddies the waters” in telecom policy. He said its intent was to say market forces should be the “first choice” in implementing policy, but “people use that policy direction to say, ‘You actually don’t have to consider the policy objectives because market forces are an end in itself,’ and it didn’t say that.” Von Finckenstein said this policy direction should be kept in place. “I thought that was an excellent direction,” he said. “It gave the CRTC a measuring stick to live by, and it’s clear that you only regulate when market forces will not achieve the desired policy end.” When asked for comment on the PIAC lawyers’ report, Industry Canada spokesman Michael Cimpaye said in an email, on behalf of the department: “The government is committed to ensuring that the interests of consumers are put first and foremost, and we will continue to ensure that consumer interests are at the core of all government decisions.” Marisa Monnin, press secretary for Heritage Minister Shelly Glover, the minister responsible for the CRTC, said in an email that her office had been in contact with Industry Canada and would defer to that department for comment. —With reporting by Derek Abma at dabma@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

CRTC should have more authority in telecom, PIAC lawyers say

News | May 15, 2014

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CRTC should have more authority in telecom, PIAC lawyers say

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