Having examined the foundational weaknesses of the Bell coalition’s website blocking plan (existing Canadian law, weak piracy evidence, limited impact) and its negative effects (lack of court orders, overblocking, ineffectiveness, violation of net neutrality, vulnerability on freedom of expression grounds, higher Internet costs, privacy risks), the case against the plan enters the final phase with several posts on how it fails to meet the requirements under the Telecommunications Act.
In 2006, then-Industry Minister Maxime Bernier led the push for a new policy direction to the CRTC on implementing Canadian telecommunications policy objectives. The direction states:
In exercising its powers and performing its duties under the Telecommunications Act, the Canadian Radio-television and Telecommunications Commission (the “Commission”) shall implement the Canadian telecommunications policy objectives set out in section 7 of that Act, in accordance with the following:
(a) the Commission should
(i) rely on market forces to the maximum extent feasible as the means of achieving the telecommunications policy objectives, and
(ii) when relying on regulation, use measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary to meet the policy objectives;
It is fair to say that Bell has been the policy direction’s biggest supporter. During hearings on the policy direction, Bell executives touted the move toward “fewer regulatory proceedings and minimally intrusive regulations.” In the years since its issuance, scarcely a proceeding goes by where Bell does not raise it with the CRTC, cite it when asking the Commission to review and vary its previous ruling, reference it in cases at the Federal Court, or rely on it when petitioning Cabinet to vary a decision.
Yet despite years of insistence that the CRTC follow the policy direction, it has now proposed regulatory intervention that could not be more inconsistent with that direction. Indeed, after invoking the policy direction at seemingly every opportunity, the Bell application suddenly goes silent with respect to the issue (the legal opinion references a separate aspect of direction to argue that non-economic regulations are permitted).
However, with courts around the world concluding that site blocking is a disproportionate remedy, evidence that it is likely to lead to overblocking, and risks that it violates net neutrality and privacy rights, the plan fails to meet the policy direction’s requirement of “efficient and proportionate” regulation. Moreover, the evidence on the current state of the Canadian marketplace reinforces that market forces are working as consumers embrace well-priced, convenient authorized services and the production industry thrives with record-setting investment. The data leaves little doubt that there is no market failure that requires a heavy-handed regulatory approach which promises to yield years of litigation over its very existence.
The proposal does not even meet the Telecommunications Act objectives (as will be discussed in a future post), but even if it did, it is at odds with the policy direction and Bell’s own longstanding advocacy on CRTC regulation, providing an obvious and clear-cut basis for the Commission to reject it.