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In yet another of a long string of missed opportunities and short-sighted half measures, the CRTC has announced its regulatory solution for Canada's chronic cell phone market debacle. In adopting a regime that replicates, rather than overcomes, the most problematic features of Canada’s mobile landscape, the Commission’s regulatory solution offers slim hopes for Canada’s cell phone market.

As anyone with a phone plan is aware, world-high mobile prices have plagued Canadians for years. Yet Canada’s dominant national providers (TELUS, Bell and Rogers) have persistently denied this reality through lobbying efforts, regulatory filings, and even active misdirection. It is therefore encouraging that the CRTC’s recent decision finally and definitively confirms the nature and scope of Canada’s pricing woes.

The decision also correctly identifies several endemic problems in mobile competition that have caused this state of affairs: market entry is difficult, as upfront costs are high, spectrum is inherently limited, and dominant providers enjoy a substantial head start. As a result of these conditions, several stuttering attempts over the years to instill price discipline from new competitors have failed to make any meaningful headway into the national providers’ dominant market presence and globally high revenues. In response, the Commission adopts a two-tiered regime. First, in an attempt to provide more competition, it obligates dominant providers to let competitors operate 'virtually', without the need to build their own networks (the MVNO mandate). Second, to provide some relief for Canadians who simply cannot afford mobile data connectivity, dominant providers will be obligated to offer lower cost plans.

Each component promises, in theory, to address long-standing problems in Canada's cell phone landscape, but both fall short in the implementation. The MVNO regime is crafted narrowly, and is only available to a small number of existing comptitors. The low-cost plans imposed by the CRTC will help some customers in some regions, but mostly replicate plans already offered by some regional competitors, and do so on outdated 3G technology.

Cross-posted & paired with a post by Erin Knight at OpenMedia.ca. Image Source: Georg Arthur Pfleuger, @knurpselknie, "Facetime between mother and son", Unsplash, June 20, 2020

Last week, CIPPIC testified before the House INDU committee, outlining steps that could be taken to move Canada toward universal adoption of fast and reliable Internet. Substantial provincial and federal resources are being leveraged to connect households across Canada. Yet full and universal Internet adoption is an ambitious goal, one that will require a coordinated national effort and strategic mobilization of cross-cutting resources.

Nor can affordability be overlooked — too many Canadians are priced out of connectivity, even as access to the Internet becomes an increasingly essential pre-requisite to participation in modern life.

In a landmark 2016 decision, the CRTC adopted 50/10 unlimited connectivity as a long term objective for universal home Internet in Canada. As of 2019, however, only 45.6% of rural households have access to broadband Internet (which the CRTC defines as a reliable 50 mbps download and 10 mbps upload connection & unlimited data), and of these close to 60% of these are dependent on less reliable wireless technologies. Particularly troubling, only 35% of first nations reservations have access to broadband.

Given Canada's constitutional and regulatory makeup, no single body can fully control connectivity efforts. However, entrusting either the CRTC or ISED to develop a comprehensive national strategy and adopt a loose but formal coordination role could drive a more integrated approach that substantially increases the efficiency of current funding allocation.

UPDATE: INDU's report in tihs study was issued June 22, 2021: "Affordability and Accessibility of Telecommunications Services in Canada: Encouraging Competition to (Finally) Bridge the Digital Divide", June 2021.

Image source: transCam, "Internet", October 6, 2005, Flickr, CC-BY-NC-ND 2.0

CIPPIC and OpenMedia filed comments calling on the CRTC to adopt robust regulatory measures necessary to reverse Canada's broken mobile ecosystem. Canadian mobile service providers such as Bell and TELUS extract some of the highest revenues in the world, and the correspondingly high retail costs have prevented Canadians from realizing the full potential of mobile connectivity.

As our submissions to this proceeding painstakingly document, Canada's mobile retail costs are prohibitively high by global comparative standards. Canadians pay more per GB of mobile data than almost any other OECD or EU country. The amount of revenues Canadian mobile providers extracts from each customer is also world leading, and this impacts heavily on Canadians, who do not make full use of their mobile devices or are priced out of mobile connectivity altogether. On that front, Canada has fewer mobile subscribers on a per capita basis than the vast majority of OECD countries, and Canadians use barely one half the amount of mobile data as the average OECD country. Canada continues to fall further behind in terms of both adoption and data usage.

These trends have been indicative of the Canadian mobile market for years, and a robust regulatory response is required. In our final comments to this proceeding, we call upon the CRTC to mandate a wholesale regime that would allow Virtual Network Operators (MVNOs) to provide mobile connectivity over incumbent service providers networks. This will allow for an infusion of competition, while ensuring that incumbent providers are well compensated for the use of their networks. CIPPIC and OpenMedia also called on the Commission to mandate affordable mobile plans with at least 4 GB of monthly data.

Image Source: Falcon Photography, "The New Golden Xperia Z5", Flickr, March 15, 2016, CC-BY 2.0

CIPPIC and vLex deploy expert knowledge and artificial intelligence to improve the ability of Canadian citizens to make a difference.

CIPPIC and international legal technology firm vLex are partnering in a Law Foundation of Ontario funded project to seek to reduce the barriers to effective public participation in communications policy-making by developing a free and fully public communications law and policy research platform.

This initiative aims to increase access and contextual understanding of regulatory, policy and legal submissions and documentation, allowing Canadian citizens to become more informed and more influential in a policy-making process that is often dominated by multi-billion dollar telecom and broadcasting giants.

Built on vLex’s AI-powered technology, Iceberg, CIPPIC and vLex will train and deliver the tools that analyze the thousands of documents, comprising millions of pages, generated across hundreds of regulatory, legislative, judicial and policy proceedings. All with the goal of arming the public with the capability to participate effectively and at a level previously available only to the largest commercial entities.

CIPPIC appeared before the Supreme Court of Canada on Thursday, December 6, on day 3 of the joint hearing on the standard of review in judicial review of administrative decisions.  uOttawa law alumni James Plotkin and Alyssa Tomkins represented CIPPIC in this hearing, and Mr. Plotkin gave oral argument.  CIPPIC's intervention focused on whether the rule of law requires courts to apply a correctness or reasonableness standard to jurisdictional questions.

The CRTC rejected a proposal for a mechanism that could be used to block websites accused of copyright infringement, in a definitive victory for digital innovation and free expression in Canada. As we pointed out in our joint intervention with OpenMedia, the proposal was deeply flawed for its lack of effective procedural safeguards, which could have led to the censorship of websites and online services that were not engaged in copyright infringement. The proposal also disturbed a carefully calibrated series of trade-offs that sits at the heart of Canada's balanced copyright regime and conflicted with long-standing principles of net neutrality by compelling ISPs to interfere with customer access to content. On the other hand, claims advanced in justification of the website blocking proposal dramatically overstated the harm caused by online copyright infringement. While such infringement does continue to occur, its detrimental impact does not rise to such levels as to justify the adoption of an extraordinary remedy of this sort, with its many attendant unintended impacts.

As CIPPIC/OpenMedia and many other public interest interveners urged, the CRTC denied the claim on the basis that it lacked legal authority to interfere with copyright policy by ordering extreme website blocking remedies. However, as both the government undertakes comprehensive reviews of Canada's telecommunications, broadcasting and copyright regimes, those who have most strenuously advanced this form of expedited website blocking mechanism are sure to continue to do so in these other fora.

Image Credit: CIPPIC, CC-BY 4.0, 2018

Bell et. al. v. Amtelecom et. al., FCA File No. A-337-13

Telus Communications Company v. Her Majesty the Queen, 2013 SCC 16

Crookes v. Newton, 2011 SCC 47, (Defamatory liability for hyperlinking)

Canada's 2010 Digital Economy Consultation

This declaration was sent by PIAC on behalf of the signatories to the Minister of Industry by way of a letter dated January 10, 2006.

In April 2005, in response to lobbying from Canada's large telephone companies, the federal government created a panel of three industry experts to review the way telephone service and telecommunications should be regulated.

TNC CRTC 2012-557, proceeding to establish a mandatory code for mobile wireless services (national wireless customer protection)

BNC CRTC 2012-370/2013-106, Proposed merger of Bell & Astral

TNC CRTC 2011-77, Review of billing practices for wholesale residential high-speed access services (Data caps & competition on pricing models in wholesale)

BTNC CRTC 2011-344, Fact-finding exercies on the over-the-top programming services in the Canadian broadcasting system (taxing online video offerings)

TNC CRTC 2010-43, Proceeding to review access to basic telecommunications services and other matters (obligation to provide universal Internet access)

TNC CRTC 2010-43-2, Obligation to Serve (Network Neutrality for Wireless ITMPs)

Telecom Public Notice CRTC 2008-19, Review of Internet Traffic Management Parctices of Internet Service Providers (Net Neutrality & throttling of peer-to-peer services)

TNC CRTC 2009-716, Call for comments – Review of CRTC costs award practices and procedures (public interest participation in CRTC proceedings)

TPN CRTC 2007-16, Proceeding to consider the organization and mandate of the Commissioner for Complaints for Telecommunications Services (CCTS)

Links to resources on Net Neutrality.

There is no single definition of spam, but everyone agrees that spam is, at a minimum, unsolicited and unwanted e-mail. Whether e-mails must be transmitted in bulk or be commercial in nature in order to be considered "spam" is the subject of debate.

The domain name system (DNS) was created in the early 1980's in order to simplify navigation on the Internet. The DNS is thus of critical importance to the way the Internet operates: if it fails, websites and email addresses cannot be located.

This FAQ contains information regarding domain name disputes and assumes that a business or other party has complained about a domain name that you have registered.

Cloudmark's recently issued 2015 Q1 Security Threat Report demonstrates the initial effectiveness of the recently enacted Canadian Anti-Spam & Spyware Law (CASL), SC 2010, c. 23, in reducing the amount of unwanted spam in email boxes in Canada and abroad. In the 8 months following the coming into force of the law, the report notes a 29% reduction in the average amount of spam received by Canadians each month. It notes an even more significant 37% reduction in spam sent from Canada to the United States. The larger reduction in US-bound spam is unsurprising, as Canada (who was one of the last countries in the developed world to finally adopt an anti-spam law) had become a spam haven, with 78% of all Canadian spam being US bound. By contrast, only about 50% of spam received by Canadians is from the United States, which has regulated spam to some degree for many years.

With respect to Canadian-received spam, the report notes that only about 17% of unwanted spam email received by Canadians relates to fraudulent "bootleg pharmaceuticals, diet pills and adult services." This amount of spam was reduced by about 5% in the months since CASL came into force (29% overall reduction x 16% of all spam). The most marked reduction, however, was from 'grey area' marketers, which the report describes as "unscrupulous email marketers" who "grow[] their mailing lists by co-marketing or easy-to-miss opt out checkboxes." The 24% reduction in this brand of unwanted email spam (which the report terms as 'legitimate' because it is legal under U.S. spam laws) affirms that the broader approach to spam adopted by CASL is necessary to make any meaningful inroads in spam reduction. CASL adopted a definition of 'spam' that allows Canadians to decide for themselves what emails they do or do not want to receive, whereas the US anti-spam law relies on easy to abuse 'opt out checkboxes'. And Canadians have taken to the law in droves, with the CRTC receiving an unprecedented 47,000 plus complaints against unwanted emails in just the first month after CASL came into effect.

CIPPIC has signed on to a letter sent by the Public Interest Advocacy Centre to Industry Canada in protest of an announced spectrum transfer that demonstrates the broken nature of Canada's spectrum policy approach. Last week, Shaw announced its intention to provide Rogers the option to purchase its entire stock of AWS spectrum holdings as part of a comprehensive deal that involves a number of broadcast holdings. While the overall deal is salted to go through soon, Rogers will be prevented from exercising its spectrum purchasing option until 2014. The reason for this is that Shaw's $189 million worth of spectrum, acquired during the 2008 AWS spectrum auction, is subject to set-aside limitations aimed at preserving bands of spectrum for new market entrants. The imposition of this set-aside was animated by the need to instil some competition into Canada's highly concentrated mobile wireless market -- a market which, at the time, was exclusively controlled by three providers: TELUS, Bell and Rogers. It was this set-aside that led to the creation of new entrants such as Mobilicity and WIND by reserving a significant chunk of spectrum for new entrants. Absent such restrictions, the concern is that incumbents will pay well above market value for spectrum solely for the purpose of locking competitors out by denying them access to the lifeblood of any wireless network -- spectrum. The set-aside not only shielded spectrum blocks from incumbent bidding during the 2008 auction itself, but also prevented those bands from reverting to any incumbent for five years.

Now Shaw, who purchased its spectrum holdings in 2008 as a non-incumbent and held onto them for 4 plus years without using any of it, seeks to sell it back to an incumbent, likely at a profit. With the 2014 AWS set-aside expiration looming and limited prospects for significant expansion of new entrant holdings in the upcoming lucrative 700 Mhz auction, there is a tangible risk that more of the AWS spectrum will follow Shaw's lead and make its way back to the incumbent fold. If Industry Canada wishes to preserve the underlying objective of the initial set-aside, it needs to block this transfer.

Regulators provide guidance on mobile privacy, tracking & advertising