Michael Geist

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Supreme Court To Hear Case Challenging Constitutionality of Privacy Law

The Supreme Court of Canada yesterday granted leave for what could be the most important privacy case in years as it addresses “whether the Personal Information Protection Act [Alberta’s private sector privacy law] is contrary to s.2(b) of the Charter and if so, whether it constitutes a reasonable limit in […]

October 26, 2012 — 1 comment — News

CRTC Pushes Bill of Rights for Consumers

Earlier this month, the Canadian Radio-television and Telecommunications Commission invited the public to help create a national code of conduct for wireless companies such as Bell, Rogers, and Telus. The consultation is expected to generate widespread interest, providing frustrated consumers with an outlet for grievances on lengthy contracts, problematic terms and conditions, exorbitant roaming costs, or onerous cancellation fees.

My weekly technology law column (Toronto Star version, homepage version) notes the decision to embark on a national, enforceable code of conduct for wireless services supported by the wireless carriers represents a dramatic policy shift that was scarcely imaginable only a few years. Indeed, when then-Industry Minister Maxime Bernier pushed through a policy direction to the CRTC in 2006 aimed at limiting regulation by calling for “greater reliance on market forces”, consumer-focused regulations were viewed as an impossibility. Consistent with the market-led approach, the Canadian Wireless Telecommunications Association introduced a voluntary code of conduct in 2009 with no expectation of government regulation.

The move toward new regulations provides a valuable lesson on the role that the provinces can play to jumpstart otherwise stagnating issues. In the case of wireless services, the introduction of provincial consumer protections geared specifically toward the wireless sector ultimately encouraged the carriers to drop their opposition to new regulation as they recognized that a uniform federal policy was preferable to the emerging piecemeal provincial framework.

October 23, 2012 — 8 comments — Columns

The CRTC’s Big Shift: From Tangible Benefits to the Public Interest

Last week’s Canadian Radio-television and Telecommunications decision to reject the proposed Bell – Astral merger surprised most observers, as few predicted with much confidence that the deal would be flatly rejected. There was good reason to doubt such an outcome, given that the CRTC review of the merger transactions has historically focused on the “tangible benefits” package that often provide millions in funding for new Canadian television and radio productions.

The result was largely regulatory theatre. The purchaser would typically unveil a benefits package featuring self-interested proposals, often amend those plans at the CRTC hearing to demonstrate it was sensitive to criticisms from various groups, and the CRTC would proceed to further tweak the package to show it was not ready to rubber stamp the transaction.

My extra Toronto Star column (Toronto Star version, homepage version) notes the process generally served the companies and the tangible benefits recipients well. The merging companies were reasonably assured of getting their deal approved and the tangible benefits recipients received hundreds of millions in funding with few strings attached. â€¨â€¨The problem was that the public was missing from this process. Tough policy issues with a direct impact on the public were put off for another day as the public interest was supposedly served by trickle down benefits generated by market efficiencies or the creation of new Canadian programming.

October 22, 2012 — 5 comments — Columns

Reactions to the CRTC’s Bell – Astral Decision

Several must-read posts and articles on the CRTC’s Bell – Astral decision from over the weekend from David Ellis, Dwayne Winseck, and Steven Chase of the Globe and Mail.

October 22, 2012 — 1 comment — News

This Is Not Your Parent’s CRTC: Commission Rejects the Bell – Astral Deal

Earlier today, the CRTC rejected Bell’s proposed acquisition of Astral. The quick, unanimous decision – the hearings wrapped up just over a month ago – leaves no doubt about CRTC chair Jean Pierre Blais’ top priority. Simply put, the public (whether as the public interest or as consumers) comes first. This is not a decision many expected. I wrote several pieces on the merger, but thought that the Competition Bureau was a far more difficult regulatory hurdle for the deal.

The CRTC identified multiple problems with the Bell bid (radio, tangible benefits, lack of evidence that bigger is better online), but the conclusion says it all:

The Commission finds that BCE has not discharged its burden and demonstrated that, on balance, this transaction is in the public interest. The benefits proposed would advantage BCE and its services, but the Commission is not persuaded that the transaction would provide significant and unequivocal benefits to the Canadian broadcasting system and to Canadians sufficient to outweigh the concerns described above.

While demonstrating that the transaction is in the public interest is always the language used in these proceedings, the CRTC has in the past focused on the tangible benefits package (ie. the multi-million dollar payments to creator groups) as the primary proxy for public interest. No longer. The CRTC’s focus today is unequivocally on the broader public interest with consumer impact the leading concern.

October 18, 2012 — 17 comments — News