Telecom Act allows retroactive code application, says government

The Telecommunications Act gives the CRTC the authority to apply its wireless code in such a way that it nullifies existing customer contracts, the federal government said in a new court filing defending parts of the code against a challenge by wireless carriers. A memorandum filed Tuesday with the Federal Court of Appeal by William Petney, deputy attorney general of Canada, said that "a contextual interpretation of Section 24 of the Telecommunications Act reveals that the section includes such authority by necessary implication, to further the objectives of the legislation and to ensure coherence with the overall legislative scheme." The filing noted this particular clause of the legislation says: "The offering and provision of any telecommunications service by a Canadian carrier are subject to any conditions imposed by the Commission or included in a tariff approved by the Commission." The memorandum went on to say the words " 'any conditions' ... can by their plain meaning encompass conditions which have retrospective affect." Several wireless carriers, including Rogers Communication Inc., BCE Inc. and Telus Corp., launched a challenge last year against the CRTC's authority to apply the code in a way that would, as of June 3, 2015, cancel out contracts that were signed two years or more earlier. A key provision of the code is capping wireless contract lengths at two years. The code was announced June 3, 2013 and took effect Dec. 2 that year. It applies to all contracts signed on or after Dec. 2, and will apply to all wireless contracts as of June 3, 2015, regardless of when they were signed. An analysis by The Wire Report found that an estimated 6.84 million three-year wireless contracts could be cancelled between June 3, 2015 and June 2, 2016, each with device subsidies of $100 or more, leading to losses of hundreds of millions of dollars in device subsidies that are not recouped by carriers. Defending the logic of having the code apply to all contracts as of June 3, 2015, the government's court filing this week referred to a CRTC statement made when the code was announced on June 3 last year, in which it said "it is essential to ensure that the transition period for the implementation of the Wireless Code is as short as possible in order to ensure that all Canadians benefit from the Wireless Code in a reasonable period. The Commission notes that unreasonable delays in the implementation of the Code for some customers could be considered undue discrimination." The federal government, represented by the attorney general, became a party to this court case after a ruling in April struck out parts of arguments made by the CRTC, which had been defending the code against the carriers’ challenge until then. At the time, Justice J.D. Denis Pelletier said in court filings that parts of the CRTC’s memorandum “cross the line into advocacy in support of the CRTC’s decision and are inappropriate.” In its court filing, the CRTC also said Section 24 of the Telecommunications Act gives it the authority to apply the wireless code in a way that would affect contracts still in effect. The federal government is seeking to have the appeal against the wireless code dismissed, and is not seeking costs. — With reporting by Derek Abma dabma@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Telecom Act allows retroactive code application, says government

News | June 11, 2014

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Telecom Act allows retroactive code application, says government

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