Shifting regulatory sands

Circumstances shift over time, and telecommunications technology, policy and regulations are no different.

A recent set of CRTC filings provides an opportunity to take another look at the processes for changing the regulatory landscape.

A year ago, in “Channels of appeal”, I described the three normal ways to appeal a CRTC decision: to Cabinet (the Governor in Council); to the Federal Court of Appeal; or, back to the CRTC itself.

These processes have prescribed timetables set out in the Telecom Act or the CRTC’s Rules of Practice and Procedure.

But what do you do if you believe an older decision is past its “best before” date and the channels of appeal have long since expired?

That question has come up in the context of a TELUS filing, “Application requesting that SILECs be classified as Originating Network Providers for NG9-1-1” [zip, 820KB]. I’m not going to look at the substance of the application or its merits. For the purpose of today’s post, it is sufficient to know that this is a new application, dated April 21, 2022, asking the Commission to modify determinations made five years ago, in 2017.

The Independent Telecommunications Providers Association (ITPA) filed an entertaining reply that seems to suggest that there is no process available to challenge older CRTC rulings.

In its reply [download pdf, 170 KB], ITPA asserts that when TELUS argues in its application that the Commission “erred”, then its application became an appeal subject to the channels of appeal and the timetables set out in the legislation. ITPA says “waiting almost five years after the decision or order because one dislikes the effects of the decision or order is not among the choices.”

Regardless of how TELUS chooses to qualify its application, it does not make it a “new application”. Calling an apple an orange does not make the apple an orange.

I thought it would be obvious that there must be ways to change regulations after the 90 day statutory appeal process expires. Technology changes, circumstances change, the rest of the world evolves. It is inconceivable that the rules of procedure would not contemplate such a need.

And indeed, they do. In Telecom Information Bulletin CRTC 2011-214: Revised guidelines for review and vary applications, the CRTC describes the processes. Interestingly, that guideline reference is cited in the ITPA reply where the Association argues that TELUS is almost 5 years too late to file a review and vary application.

The point is, TELUS did not file a review and vary application. TELUS must have read the second half of the Information Bulletin where the Commission described “Criteria for distinguishing review and vary applications from new applications.”

In the past, some applications have been framed as new applications when they should have been framed as review and vary applications, and vice versa. The delineation of general guidelines for distinguishing among the various applications should assist applicants in determining whether to proceed by way of a new application or a review and vary application and avoid unnecessary delays.

The Commission has identified five factors that, although not exhaustive, will assist in assessing whether an application raises an issue relating to the original or the continuing correctness of the decision in question and accordingly, whether it should be treated as a review and vary application or a new application. These factors are the following:

  • whether the application raises an error of law, jurisdiction, or fact;
  • the extent to which the issues raised in the application were central to the original decision;
  • the extent to which the facts or circumstances relied upon in the application were relied upon in the original decision;
  • the length of time since the original decision; and
  • whether the resulting decision would supersede the original decision in a prospective manner as opposed to curing an error on a retrospective basis.

We can’t have a situation where any application seeking a change is deemed to be a “review and vary”, but then the filing is thrown out for being too late. The CRTC’s guidelines accommodate such circumstances by indicating that a new application should be used.

The regulatory landscape needs to be able to evolve and the rules of procedure accommodate these shifting sands.

I think we are going to find that the CRTC will agree that TELUS properly formulated its filing as a new application.

Class dismissed.

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