Communications law and policy conference – Support grows for evolutionary change in telecom regulation procedures

There is an appetite for tinkering with the membership and the mandate of the CRTC, but those changes should be gradual, a recent communications law and policy conference was told. Recent events have shown support for the commission to be altered through evolution rather than revolution. Discussions at the recent New Developments in Communications Law and Policy conference in Ottawa April 26-27, coupled with the latest Decima Publishing reader survey, indicate those connected to the telecom sector want to see revisions made. At the conference, sponsored by the Law Society of Upper Canada and the Canadian Bar Association, Hudson Janisch of the University of Toronto presented a paper titled Fairness and Transparency in Telecom Regulation. One of his key points revolved around the legitimacy of the CRTC’s actions. "It seems to me that the CRTC has always recognized the crucial distinction between ‘authority’ and ‘legitimacy.’ Simply put, authority is given to the commission by Parliament in its legislation," he said. "Legitimacy comes from an open and accessible process of decision making. As I have argued elsewhere, self-conscious adoption of open processes has been, and remains, critically important as a means of legitimation." One process that came under particular scrutiny was the Part VII application. Janisch noted that a filing involves providing notice to the respondent, a 30-day response period, and a 10-day period for reply. Only then is the CRTC to involve itself in issuing a decision (or, in some cases, deciding to open the matter up into a full proceeding). He quoted from a background paper written by Janet Yale and Suzanne Blackwell five years ago that said a Part VII application frequently takes three to six months to be resolved, while complicated issues may take more than a year to be settled. In his response to the Janisch paper, Anthony Keenleyside of the Ottawa office of McCarthy Tétrault LLP cautioned against abandoning the Part VII process. He agreed that decisions can take too long, but expressed hope that the new service standards introduced by the CRTC may alleviate the problem (NL Update, Apr. 15/02).The question of timing does not bother another panelist who commented on Janisch’s paper. "I’d prefer to have a quality decision over a fast decision," Willie Grieve, VP government and regulatory affairs for Telus Corp., told conference delegates. He also endorsed the new service standards. Reform of the CRTC has been a popular topic of late. The Canadian Cable Television Association recently presented a series of proposals on how the regulator could be improved (NL, Feb. 26/02). Those recommendations served as the basis for Decima Publishing’s informal online reader survey last month. A plurality of respondents supported the idea of making the regulatory process more open and accountable (see chart). Less popular options included focussing CRTC resources on issues of greatest priority, less but more focussed regulation, reducing the number of commissioners, and greater consistency in regulation. Apparently, these suggestions are being treated quite seriously in the backrooms of the commission. Sources tell Network Letter that new CRTC chair Charles Dalfen is enthusiastic about paring the number of commissioners from 13. Currently, the commission is made up of 12 members, with one vacancy caused by last week’s departure of Martha Wilson, whose term expired. This fall, commissioners David McKendry, Andrée Noël and Stuart Langford complete their terms. It is uncertain if they will be reappointed. At the Ottawa conference, Janisch recounted the commission’s adoption of alternative dispute resolution methods, particularly CISC (CRTC Interconnection Steering Committee). He praised CISC, saying it is "far superior" to the adversary approach favoured by the Federal Communications Commission in the United States. But he warned that CISC’s success might lead to its downfall. "By that I mean that the commission may have been tempted into being overambitious in its deployment," the professor explained. "At its heart, success has depended on confining its role to technical issues which by their nature are capable of consensual resolution by experts. Yet when one looks at the CISC score card, one may detect a decline in success with a drift from technical to policy subject matters." Grieve suggested that could be a dangerous drift. "I don’t think the commission should be in the policy business at all," he opined.Keenleyside posited that the federal Cabinet has too many opportunities to tell the regulator what to do. "The bar has been raised too high," he stated. Janisch wondered if Cabinet inference could jeopardize Canadian participation in international commitments like the General Agreement on Tariffs and Trade and the World Trade Organization. The international agreements, he pointed out, require transparent and impartial decisions. But the option of appealing CRTC decisions to the federal Cabinet may distort that requirement. "Can a political decision ever be impartial?" he asked. "Is not the purpose of politics to reward one’s friends and punish one’s enemies or, at the very least, to advance partisan interests? Is a Cabinet override not partial by its very nature? As well, the Canadian Cabinet appeal process is notoriously opaque." Keenleyside dismissed these fears, mentioning that the vast majority of upheld appeals resulted in decisions being sent back to the commission for reconsideration. The use of referrals, rather than override, should maintain regulatory integrity, he said. Janisch has been involved with a seminar exploring Internet governance. He announced that the study of the Internet has challenged many of his previously held views on regulation. He pressed his audience to consider new options in managing telecom issues. "I would urge that in thinking about fairness and transparency in circuit switched telephony, we keep in mind the radically different procedural model which has grown up for packet switching" he said. "Indeed, it seems to me that as telephony moves towards participatory, consensus driven ‘co-regulation’ under CISC, the ways of the Internet become more relevant as a model of effective market self-regulation." In response to a question from the audience, Keenleyside advocated that the CRTC become more confident in its process. "If someone wants to take a decision to the Federal Court, fine," he stated. Grieve had expressed similar sentiments in his presentation, saying the CRTC should encourage debates among different interested parties.

Communications law and policy conference – Support grows for evolutionary change in telecom regulation procedures

News | 05/07/2002 4:00 am EDT

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