Timothy M. Denton

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Getting it mostly right

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The CRTC is making a lot of good moves lately: eliminating the requirement to give 30 days' notice before abandoning a cable subscription is both sensible and substantially good. And insisting on making decisions based on evidence is right, and  taking pride in basing one's decisions on evidence is understandable.  Running the risk of being a dinosaur is the fate of anyone over forty, but try not to be one.

"We are an evidence-based decision-making body," said the Chairman, Jean Pierre Blais, this week in a speech to the Vancouver Board of Trade. He continued:

"If so, you probably know we were criticized by some commentators over our demand that interveners provide the hard data we need to make informed regulatory decisions. I am not speaking about individual Canadians who appear at our hearings. I am speaking of two companies, with a total market cap of over 400 billion dollars, which operate in Canada and filed positions in our hearing. Such parties cannot refuse to provide evidence without consequences, especially when they appear before an evidence-based decision maker. Like other administrative tribunals, we struck out their incomplete evidence."

I am all in favour of evidence based science, regulation, law and any other kind of policy or knowledge. The question, however, was whether the CRTC had jurisdiction to ask for the information of the intervenors. It claims to have it; Netflix and Google claim to be beyond the CRTC's jurisdiction. It is a battle you don't want to get into without being fully conscious of all the stakes. For a government, this could have been an election-losing issue.

"This is not about regulating them or not, as some uninformed casual observers would have you believe. This is about the integrity of an evidence-based proceeding".

Maybe. But if my jurisdiction to order you to do something depends on the interpretation of a statute, I had better be prepared to see it all the way to the Supreme Court, particularly if you happen to be Google. If my legal authority to cause you to produce papers is in question (even if I do not think it is, what do others think, and do they have the power to express their views through powerful lawyers?), then finding a way to get that information without engendering a lawsuit might be advisable.

 

Withal, the CRTC is at this stage of its existence getting it mostly right. It is leaving behind 20 years of hands-off policies that have left Canadian consumers and business with significantly higher rates and lower bandwidth than many European and Asian societies.

Good regulators don’t live to regulate:  they act—or abstain from acting—to achieve outcomes that Parliament has entrusted them to achieve. That means ensuring that Canadians benefit from a dynamic marketplace, as well as networks that are reliable, affordable, high-quality and available across the country. That’s why, as a result of the proceedings I mentioned earlier, the CRTC may have to step back in through a measured regulatory response.

As a consequence, I raise an irrelevant cheer from the sidelines. Just don't step on landmines, CRTC. It distracts you and the nation from the supreme objective. Keep to the present course, and the public will love you. Try to regulate the Internet as "broadcasting" - try to licence every website - and it will be painful to watch what Harper does to the CRTC.

 

 

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Monday, 19 August 2019
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