Some commissioners, industry experts question secrecy of CRTC decision process

Longstanding industry gripes over secrecy at the CRTC have been brought to the fore as Canadian Communications Reports has hit a brick wall in its attempt to pry voting information from the commission. Responding to CCR inquiries about the lack of transparency on commissioner voting records in the wake of a failed Access to Information request, both industry experts and even some commissioners are calling for greater openness at the broadcast and telecom regulator, and an end to unrecorded votes. Many are also calling for disclosure of staff recommendations. Though publicly released voting results may not be popular with some commissioners expecting to later return to the private sector, industry players say transparency will better serve the public interest and satisfy their efforts to understand how and why important decisions are made. CCR is considering appealing its failed Access request. Let us know what you think about CRTC reform in general, and transparency and accountability at the regulatory agency in particular. Email your comments to Norma Reveler at nreveler@decima.ca. Better yet, formalize your comments in an Op-Ed column of about 650 words. We’ll publish as many columns as we can as part of our Newsmaker feature.Late last year, CCR filed an Access request seeking information about the commission’s vote on the addition of foreign specialty services to a new list of eligible digital foreign services (CCR, Aug. 30/01) and amendments to CTV Newsnet’s change in conditions of licence (CCR, Dec. 6/01). Material returned by the CRTC’s Access commissioner, however, was heavily blacked out and revealed neither how each commissioner voted nor the recommendations of staff. "I think that the public process would be better served if the votes were published and you knew (everyone) who dissented, even in situations where only one individual expresses it in a written dissent," says Mark Lewis of the law firm Borden Ladner Gervais LLP. "I think it would be very useful to know because over time, as an applicant, you would come to know what particular commissioners think." Lawyer Chris Taylor has argued for transparency and accountability at the CRTC by requiring public disclosure of which commissioners have decided a matter and how individual commissioners voted. "Consequently, there is a strong argument that the CRTC’s approach should be brought into line with that of most other regulatory agencies and public decision-makers. Each decision should identify the commissioners who decided a matter and how they voted," he wrote in a discussion paper presented last March entitled Communications Regulation: Now and When?A key issue in wrestling voting information from the CRTC is that minutes are often incomplete, and there is no official recording of votes. Commissioners must write a dissent to go on public record as disagreeing with a decision. CRTC sources tell CCR that commissioners may also ask that their disagreement be recorded in the minutes, but those minutes are not a part of the public record. David Colville, CRTC vice-chair of telecommunications, has no problems with the existing system. "I think that the current practice provides commissioners with the necessary flexibility," he says, in response to the question of whether he would oppose a change that would see votes made more public. "Depending on the issue, you may disagree with some of the other members but you may not feel strongly about the issue (to write a dissent)…Frankly, I think the current practice allows the commissioners to decide depending on the strength of their concern about a particular issue and the seriousness of the issue itself. I think the current situation is probably the best way to go." But CRTC commissioner Stuart Langford disagrees with the vice-chair. "It annoys the hell out of me that we have to write dissents to make our opinions known. There is no reason for the secrecy," Langford tells CCR. "A number of times we have recommended that official votes be taken and made public. But I guess we have not yelled loud enough." He says the commission doesn’t make it easy to write dissents because while the CRTC has official writers and lawyers help in penning decisions, none is granted to dissenters. "It’s hard work – I’m not complaining because it’s my job – but they don’t make it easy for you. You get the feeling that they want to convince you not to do it," says Langford. He notes that the commission can take as long as it wants, with the help of staff writers and lawyers, to come out with a decision. But once a draft of the decision is available, dissenters have only ten days to write a dissent, regardless of whether or not they are busy working on another panel at that time. "The commission assigns you one lawyer, but it’s kind of like it’s their job to bring you as close to possible to the official decision," he adds. Langford also takes issue with the process because it does not allow commissioners to write concurring decisions that might give different reasons. A commissioner might want to include only a few paragraphs that would explain why a particular decision is a special case, but that is not allowed either, according to Langford. Commissioner David McKendry, who says he’s written about six dissents in the past four years, also is in favour of a more transparent process. "As a public official, I think I’m accountable to the public who pay my salary, and I don’t have a personal difficulty with disclosure of my vote. But that’s not the current practice at the commission, so I don’t disclose my vote." Advocates for a more transparent process also point out that even court decisions publicly reveal how the judges vote. U.S. regulator is model of openness The secretive CRTC decision-making process is in sharp contrast to the Federal Communications Commission (FCC) in the United States, where votes are recorded and commission discussions prior to votes are open to the public. A similar model for the CRTC could be proposed by some groups in their presentations to the House of Commons Standing Committee on Canadian Heritage’s current study of the broadcasting system including the CRTC. Industry insiders advance various theories as to why the Canadian regulator functions differently than its U.S. counterpart. Some suggest that because some commissioners come from and return to broadcasting-related private-sector jobs, they may be leery about making opinions public that could close future doors. Others say that some commissioners hesitate to write dissents because they do not want to hint that they were unable to sway a majority of their colleagues on a panel over to their view. Some industry players are adamant that staff recommendations should also be made public. Taylor, formerly senior VP of law and regulatory affairs at the Canadian Cable Television Association (CCTA), says since staff cannot be granted decision-making powers, there’s no harm in making their recommendations public. He points out that the release already takes place to some extent in the context of major hearings where staff briefing notes are generally available in the public exam room. However, "…it would promote both transparency and efficiency, if this practice were extended to other proceedings," he states. "First, given the fundamental role of staff in support of commission decision-making, procedures should be established to make staff analyses publicly available," reads Taylor’s discussion paper, presented at a National Association of Communications Lawyers seminar. "Commissioners rely on staff to help define and clarify questions of both policy and fact. Parties who will be affected by commission decisions should have an opportunity to know the way staff has characterized these matters without having to file an access to information request." McKendry notes: "I’ve heard people on the outside say they would like to see the reasons for our decisions articulated in more detail. That’s a legitimate interest enough. We think we put forward our reasons sufficiently, but if people would like to see more detail in order that they could better understand the decisions, that’s fine with me too." Lewis points out that most of the access to information requests he has filed over the years have been to clarify where staff got information or to try to make sense of a decision. He notes that commissioners rely heavily on staff analysis in making decisions and asking questions during hearings. "It has been my experience over the years – and we’re talking about a long practice in this area – that staff can be terribly wrong and misinformed," he tells CCR. Lewis believes that most people "use access to information not for devious purposes or competitive advantage. It’s to try to figure out what they perceive to be a bad decision or an aberration." However, as CCR has discovered, it’s very difficult to get the desired information through access to information. Lewis concurs. "I think that the process and procedure doesn’t really provide much openness because of what can be censured," he says. "You go through this access to information process and everything is blacked out. And so at the end of the day what have you achieved?" McKendry, who filed access to information requests as director of regulated industries at the Consumer Association of Canada before joining the CRTC, had much the same experience. "You get lots of stuff blacked out as you do anywhere in government. They have to cite a section of the act for the basis of blacking it out. One could challenge that…I found the commission very cooperative. Now that’s not to say I got what I wanted." Lewis says he has filed access to information requests to try to figure out how staff may have misconstrued some information. "I’ve been to a number of hearings where questions that have been developed by staff come out of left field from commissioners. In these circumstances, you go back after you’ve been pummeled by commissioners and you say, ‘Where did this thing go wrong? Where did it go off the rails?’ And so you go and try to get freedom of information to see where was this blunder – not for retribution – but just to see how the misunderstanding arose." McKendry notes that typically industry representatives go directly to staff for explanations or more information on decisions. In this manner, they may get more information than they could through access to information. But in those cases, industry players must take staff members at their word, and there is no paper trail for future reference. Lewis states: "I think that broadcasting organizations have enough resources to plumb through the back channels (to find out) who is for and against them. I think that is the reality of the industry. The CAB (Canadian Association of Broadcasters) as a trade organization has a pretty good watch on Hull as to who votes how. Those things are pretty well known (in the industry). But if you’re coming from a public interest point of view,…I think it is useful to know how individual commissioners think." Some industry representatives and commissioners express optimism that things may change under new CRTC chair Charles Dalfen. "It’ll be interesting to see what the new chair does with this problem," says Langford. "I’m not saying I expect him to do something. But we’ve got a new chair and he’s got a chance to change things. It will be interesting to see whether he puts it on the agenda." Janet Yale, president and CEO of the Canadian Cable Television Association (CCTA), says her organization has made some recommendations for CRTC reform in its submission to the Canadian Heritage committee. "But given the fact that Charles Dalfen has arrived at the commission, generally speaking we’re much more inclined to see what kinds of initiatives he launches…And hopefully through his leadership a lot of what we might have been wanting to see will actually happen without the need for any kind of official reform," she says.

Some commissioners, industry experts question secrecy of CRTC decision process

Broadcast | January 18, 2002

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