Earlier this month Konrad von Finckenstein, the chair of the Canadian Radio-television and Telecommunications Commission, was asked at an industry conference about the role of consumer groups in telecom regulation. He responded that consumer groups generally do not have a problem ensuring their views are heard, but that their effectiveness depended upon getting organized and developing the necessary knowledge and expertise to fully participate in regulatory proceedings.
Yet just as von Finckenstein was providing assurances to the consumer community, the CRTC was erecting barriers to their participation in a consultation on online video services such as Netflix and AppleTV. In fact, the consultation (labeled a “fact-finding exercise”) has been marred by charges of CRTC bias that has led at least one consumer group to pull out altogether.
The CRTC launched the consultation in late May after a consortium of broadcasters and cultural groups including Bell Media, Astral Media, ACTRA, the Canadian Media Production Association, and SOCAN formed the Online Broadcasting Working Group to urge the Commission to delve into the policy implications of increasingly popular Internet-based video services.
The CRTC could have easily dispensed with the request by noting that it addressed the issue of new media regulation in 2009, concluding that regulatory intervention would get in the way of innovation and promising to revisit the issue again in 2014.
Rather than waiting for the next round of review, however, the CRTC launched its consultation on May 25th, posing eight questions on the impact of so-called over-the-top services and setting a deadline to respond of June 27th.
The CRTC approach raised two immediate concerns for consumer groups. First, the short deadline provided little time to research the issue and respond in a constructive manner, much less retain expert assistance. Indeed, the stakeholder best positioned to respond was the OBWG, the very industry group lobbying for a review. Second, by labeling the consultation a “fact-finding exercise”, it took it outside the full public consultation process that offers public interest groups the opportunity to seek compensation for their costs.
When Canadian consumer groups voiced these concerns to the CRTC, they were summarily dismissed. For example, the Canadian Internet Policy and Public Interest Clinic wrote to the Commission on May 27th – two days after the consultation launch – to request an extension until the end of July (I am a member of a CIPPIC Advisory Board). The CRTC responded on June 1st, rejecting the request.
But when industry groups including the OBWG asked for extensions several days later, the CRTC quickly granted the request, giving all parties until July 5th to respond. When asked about the discrepancy, the CRTC claimed that the industry requests for shorter extensions led to the different outcome.
The Public Interest Advocacy Centre raised concerns about exclusion of costs for consumer groups in a letter sent to the CRTC on June 6th. A week later, the Commission affirmed that the intervener cost rules did not apply to the fact-finding exercise since “no policy or regulatory outcomes will be determined on the basis of this exercise.”
That claim is hard to reconcile with the Commission’s reluctance to extend the submission deadline. If this is nothing more than a fact-finding exercise, there is seemingly little urgency and no need for tight timelines. On the other hand, if the exercise does ultimately lead to new policies, then the traditional rules that foster public interest participation should apply.
The end result has been the pervasive sense that the Commission caved to pressure from a small group of powerful stakeholders without regard for consumer interests, deliberately structuring the proceeding in a manner that excluded public interest participation and paving the way for another round of demands for increased Internet regulation.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.