Telecom by yum9me (CC BY-NC-ND 2.0) https://flic.kr/p/53jSy4
After years of failed bills, public debate, and considerable controversy, lawful access legislation received royal assent last week. Public Safety Minister Peter MacKay’s Bill C-13 lumped together measures designed to combat cyberbullying with a series of new warrants to enhance police investigative powers, generating criticism from the Privacy Commissioner of Canada, civil liberties groups, and some prominent victims rights advocates. They argued that the government should have created cyberbullying safeguards without sacrificing privacy.
While the bill would have benefited from some amendments, it remains a far cry from earlier versions that featured mandatory personal information disclosure without court oversight and required Internet providers to install extensive surveillance and interception capabilities within their networks.
The mandatory disclosure of subscriber information rules, which figured prominently in earlier lawful access bills, were gradually reduced in scope and ultimately eliminated altogether. Moreover, a recent Supreme Court ruling raised doubt about the constitutionality of the provisions.
My weekly technology law column (Toronto Star version, homepage version) notes the surveillance and interception capability issue is more complicated, however. The prospect of a total surveillance infrastructure within Canadian Internet networks generated an enormous outcry when proposed in Vic Toews’ 2012 lawful access bill. Not only did the bill specify the precise required surveillance and interception capabilities, but it also would have established extensive Internet provider reporting requirements and envisioned partial payments by government to help offset the costs for smaller Internet providers.
The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months last week, focusing on the wholesale market for broadband Internet services. Coming on the heels of the earlier hearings on broadcast television regulation (the “TalkTV” hearing that was highlighted by a showdown with Netflix) and wholesale wireless services, the proceedings followed a familiar script.
The incumbent providers urged the Commission to resist regulating access, claiming a competitive market exists with few barriers to new competitors. Meanwhile, independent Internet providers pointed to their relatively small share of the current broadband market and warned that failure to mandate access for faster fibre connections to the home would effectively eliminate future competition as Canadians gravitate to services offering faster speeds.
While it will take some time for the CRTC to issue its decisions in all three cases (the broadcast decision is expected before the end of the year), it is not too early to declare the entire system broken. The CRTC – Netflix battle prompted many to conclude that the Commission was a relic of the past, unable to adapt to the disruptions facilitated by the Internet. Yet the Commission’s difficulty dealing with the fast-moving changes throughout the communications sector is chiefly the result of an outdated regulatory structure that misses the proverbial forest for the trees.
Last year’s explosive battle over the potential entry of wireless giant Verizon into the Canadian market may be a distant memory, but the debate over the state of wireless competition remains very much alive. Industry Minister James Moore has pointed to a modest decline in consumer pricing and complaints as evidence that government policies aimed at fostering a more competitive market are working.
The big three wireless carriers remain adamant that the Canadian market is competitive and that while pricing may be high relative to some other countries, that is a function of the quality of their networks. In other words, you get what you pay for.
There is seemingly no major international entrant on the horizon, but the Canadian Radio-television and Telecommunications Commission is currently grappling with an assortment of policy measures aimed at improving the competitiveness of new entrants and facilitating the development of a more robust market for virtual operators who could enhance consumer choice. Moreover, the government is planning another spectrum auction early next year that would benefit new entrants.
My weekly technology law column (Toronto Star version, homepage version) notes that at the heart of the debate is whether creating a fourth national carrier is a legitimate policy goal or a mirage that will do little to decrease pricing or create market innovation. The major carriers argue that the Canadian market is too small to support a fourth national carrier and that competitiveness is not directly correlated to the number of national operators.
The Commissioner for Complaints for Telecommunications Services released his annual report yesterday resulting in a wide range of interpretations with some citing improved customer service due to an overall decline in complaints, others focusing on declining customer service owing to an increase in complaints from misleading contractual terms, and yet others pointing to the CRTC Wireless Code as the reason behind the overall decline in complaints.
Despite some improvement in service, the most notable aspect of the report is a review of compliance with the wireless code. With the code now fully operational, there is simply no excuse for carrier non-compliance. Yet the data suggests that there are numerous confirmed breaches. Bell is easily the most notable company when it comes to failure to comply with the code: when you combine Bell Canada, Virgin Mobile (which it owns), and Northern Tel (which it now also owns), 2/3 of the confirmed breaches all come from the same source. In other words, every few weeks, Bell Canada or one of its companies had a confirmed breach of the wireless code.
Fresh off the contentious hearing on the future of television regulation, the Canadian Radio-television and Telecommunications Commission jumped back into the fire last week with a hearing on the wireless market that focused on whether changes are needed to the wholesale market to improve competition.
The Big 3 – Bell, Telus, and Rogers – unsurprisingly opposed new measures, arguing that the Commission should reject the Competition Bureau’s independent finding that there are competition concerns along with the smaller players and consumer groups that support new regulations. Instead, they argue that Canadians can trust that the market is already competitive and that reforms would reduce investment and harm the quality of the networks.
My weekly technology law column (Toronto Star version, homepage version) notes that if that message evokes a sense of déjà vu, perhaps that is because it is seemingly always a matter of trust when it comes to Canadian wireless services.