As the term of former CRTC Chair Jean-Pierre Blais came to an end, I wrote a post arguing that he left behind an enviable record, commenting that “a new commissioner may bring a different perspective, but there is no reversing a more open, accessible CRTC.” Less than a year later, it is becoming increasingly clear that I was wrong. Apparently, reversing an open, more accessible CRTC was entirely possible.
Blais understood at least two things with respect to Canada’s communications laws and the CRTC. The first was that in the digital environment the commission should eschew protectionism in favour of a regulatory approach premised on competition. The second was that the CRTC would never gain the trust of the public unless it was seen to operate in the public interest in a transparent manner that offered everyone an equal opportunity to shape Canadian policy.
New CRTC chair Ian Scott has only been in the position since last September, but it feels as if both principles are under threat. The recent CRTC wireless decision rejected the government’s strong hints for more competition, effectively telling Innovation, Science and Economic Development Minister Navdeep Bains that major reforms were the government’s responsibility. This week the CRTC will release its decision on broadcasting and Canadian programming titled “Harnessing Change: The Future of Programming Distribution in Canada”, which suggests the regulator thinks it can harness the Internet and a global programming market.
Yet it is not differing policies that strike at the core of public trust of the CRTC. It is not the odd – if inappropriate – tweet last week in which the CRTC promoted Bell’s CraveTV service (the tweet was subsequently deleted), the discouraging reluctance of the CRTC to launch an inquiry into questionable telecom sales practices, or the approach to cost awards that seem to place new limitations on support for public interest organizations.
Rather, it is the shift in CRTC approach that has opened the door to a resumption of privileged access lacking in the transparency needed to assure the public that the commission still places Canadians at the centre of their communications system. The most obvious manifestation is the presentation of the FairPlay site blocking proposal to commission staff (aided by a commissioner) months before it was available to the public. The documents obtained by the Forum for Research and Policy in Communications show the country’s largest telecom company enjoys easy access to commissioners, who then promote the company’s agenda internally within the regulator.
Not only was the advance internal promotion of the proposal troubling, but so too was the response from both Bell and the CRTC. Bell tried to wordsmith away its privileged access, saying it had not met with CRTC commissioners. Meanwhile, the CRTC may have violated its own Code of Conduct, which states:
Because of the confidentiality of CRTC decision-making and the importance of not only being, but also being seen, to be fair and impartial at meetings with parties before the CRTC, we may not discuss matters before the Commission. To make it clear to all participants that such matters are not to be discussed, we prepare an agenda for meetings with parties and intervene during the meeting if the conversation appears to be moving to a topic before the Commission. Information from such meetings that may be relevant to any future proceeding must be filed on the record of that proceeding in order to be considered by the Commission. Otherwise, other parties to the proceeding would not be aware of or have the opportunity to comment on the information.
To my knowledge, the information from that meeting was not placed on the public record.
Moreover, the newly established (or revived) open door policy was not limited to FairPlay. According to the lobbyist registry, Bell did not meet with CRTC commissioners and senior executives from January 1, 2016 to August 31, 2017. Since September 1st, Bell has had five registered meetings, easily the most of any company in Canada. A new chair unsurprisingly sparks many “get to know you” meetings (I had one with Scott in the fall), but during that period Bell had as many registered meetings as Telus, Rogers, and Shaw combined.
In fact, since July 1, 2017, the organization with second most meetings is the National Football League, which has been active together with Bell on the issue of simultaneous substitution of the Super Bowl. On August 1, 2017, Bell asked the CRTC to reconsider its earlier decision and rescind the order removing simsub from the broadcast. While Bell is the applicant in that case, it is inextricably linked to the NFL, which owns the global rights to the broadcast and has much at stake over the outcome of the decision. But after Bell filed the reconsideration request, it granted the NFL two meetings, with Scott in December 2017 and with Scott Hutton, the CRTC’s Executive Director, Broadcasting in January 2018. It is not clear how the CRTC justifies meetings with the NFL while the matter of the Super Bowl broadcast is before the commission.
Meetings between the regulator and stakeholders outside of the formal hearing process are seemingly an inevitability. Yet the regulator must ensure both equal access and full transparency of access. In fact, the Federal Court of Appeal emphasized the importance of transparency when it upheld the simsub decision, stating “as long as the CRTC’s decision demonstrates ‘justification, transparency and intelligibility within the decision making process’ and ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’, the Court will treat it with deference.”
It is not enough to simply rely on the public to file access to information requests or for companies to register their meetings on the lobbyist registry. Consistent with its code of conduct, all information from those meetings should be filed on the public record. Moreover, the commission should proactively disclose the agenda and non-confidential documents of commissioner meetings as well as registrable meetings with senior commission executives. The foundation of public support for the CRTC is grounded in trust. In light of recent events and records, that trust is in danger of being frittered away as stakeholders fear a return of privileged access for industry that leaves the public interest stranded far from the centre of the Canadian communications system.