Needing professional help

Vaxination Informatique filed a cabinet appeal of Usage Based Billing [pdf], anchoring the appeal on Telecom Decision CRTC 2010-802, which was issued on October 28, 2010. It raises some procedural issues worth exploring.

Under Section 12(1) of the Telecom Act, a petition to the Governor-in-Council may be filed within 90 days of the decision:

Within one year after a decision by the Commission, the Governor in Council may, on petition in writing presented to the Governor in Council within ninety days after the decision, or on the Governor in Councilā€™s own motion, by order, vary or rescind the decision or refer it back to the Commission for reconsideration of all or a portion of it.

So the petition is on time for that Decision, however there is some question as to whether 2010-802 is the right decision to be appealed. The petition attaches a caption of “Usage-based billing for Gateway Access Service” to the decision on the cover of the document. In fact, the approval of Gateway Access Service occured with a May 6 Decision, 2010-255. The October Decision dealt primarily with the rates to be charged and the issue of whether all of the retail customers had to be charged on the basis of UBB prior to any wholesale customers.

Keep in mind that usage based billing was approved in 2009 in Telecom Decision 2009-658.

AsĀ set outĀ by the dissenting opinion of Commissioner Molnar in the Decision last May, usage based pricing was already a rating concept that was firmly esptablished in Canada’s internet services market.

Vaxination’s cabinet appeal does not specify the relief being sought, there is no draft order proposed for approval. The closest I can find is the final paragraph of the Executive Summary, which says:

Therefore, The Commission must be told to rescind all decisions related to the TN7181 tariff an ensure that GAS and TPIA tariffs be reviewed to ensure they contain only aspects related to the nature of that service.

Under the law, Cabinet only has the power to rescind a CRTC decision withn 12 months of the original decision. For usage based billing to be eradicated, Cabinet has to act before May 6, just over 3 months from now. The problem is timing, and not just with the petition being filed too late. There needs to be a publication in the Canada Gazette and distribution to the parties who appeared before the CRTC in the original proceedings. Finally, the Minister has to notify the provinces prior to making a recommendation to cabinet. All that in the next 13 weeks if Decision 2010-255 is to be rescinded. Call me skeptical.

The way around this would have been to try to convince Cabinet to review the decision of its own motion. I wrote about that a little over a year ago in my discussion of the Globalive ownership process. In Processes and procedures, I wrote that there is not a lot of procedural definition for a CabinetĀ review of its motion. In an environment charged with the rhetoric of an election, this might have been a route worth pursuing, engaging legal and government relations assistance. Perhaps these would be beyond the financial means of Vaxination, but surely not Netflix, a company now worth $11B, that “worries” its business model is at risk in Canada.

If the welfare of Netflix Canada andĀ the entire independent ISP community is being threatened by UBB, then it might have been worth someone investing a few dollarsĀ to getĀ professional advice on how to put the best foot forward.

8 thoughts on “Needing professional help”

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  2. ummm… he can now withdraw the petition if cabinet is willing to take a look at the file. I think this method is much better forces the action.

  3. So what you’re saying is that the only way for the CRTC to be fair is for someone to pay enough money?

    People are going to ask about how the CRTC has been conducting itself. UBB is not “established”, but merely pushed onto Canadians. You can’t expect everyone to keep a network analyst hat in their closet. Which is why the CRTC was established: In trust.

    The only thing established is that the CRTC is in contempt of their mandate.

    Decisions made under such blatant collusion are all subject to reversal. This has gone on too long and large ISPs are finally going to get caught up to their necks in the cookie jar.

  4. @CiD –

    I try to choose my words carefully so that I don’t need you to paraphrase my postings. I did not say what you are trying to attribute to me.

    It isn’t a matter of “paying enough money” for the CRTC to be “fair”. For that matter, the CRTC process is done and I didn’t talk about dealing with the Commission. The petition was not addressed to the CRTC and my comments did not refer to a CRTC process.

    But let’s assume that you meant to say “Cabinet” where you typed “CRTC” in respect of my posting. Let’s also assume that you were simply trying to be inflammatory when you said that I suggested “the only way” was to spend money.

    When you buy a house, you hire a lawyer to deal with the legal issues; you likely use a real estate agent, a home inspector. People hire professional advisors to ensure that they put the right foot forward.

    This was a petition to Cabinet, the Governor in Council, equivalent to filing a court document, but with the leadership of our country. Personally, I think that one should approach such a task with some advisory assistance, just as one might when approaching other sophisticated legal matters. If for no other reason than out of respect for the office and seeking clarification on protocol, I would consult with an advisor.

    Read the last line of my post more carefully. I said that if the welfare of an $11B US corporation is at stake, as well as the livelihood of all of the independent ISPs, “then it might have been worth someone investing a few dollars to get professional advice on how to put the best foot forward.”

    I was hardly saying that spending money is the “only” way to approach Cabinet or the CRTC.

  5. Mark,

    This situation is as a result of the actions of the CRTC, they are not without blame. This is a failure of the entire system if people are advised to muster these kinds of resources to have any publicly elected or appointed group do their job properly. Public interest is the only thing that should be required to persuade both the CRTC and the cabinet in any matter.
    (I can appreciate that it would have to be with good cause or with enough outcry.)

    Regardless, people have no justifiable need to hire anyone in a situation like this. The best way to get this point across: What exactly do you mean by “putting the best foot forward”? I realize you’re “suggesting” it, but what would be some alternatives?

    You can speculate that I’m being inflammatory, but I’m not. If there is any cost to be fronted, it should be covered by the government in it’s obligation to serve the people.
    I’m sure some would say I’m being idealistic, but that’s a far better explanation than what can be offered for everything so far.

  6. You may be surprised to hear that the these are the considerations of the CRTC and that consumer groups appear before the Commission with the costs of their advisors funded by the other participants.

    Just look through the file of any of the proceedings to see how extensive the evidentiary record is and the breadth of participation. Further, the CRTC just issued new rules on applying for cost awards.

  7. Not just netflix, not just who knows how many new/better/different video services will now never launch in Canada.

    Not just these but all digital media including games. Provincial and Federal governments are spending hundreds of millions in subsidies to grow the game industry in Canada.

    Well guess what the future is for the distribution of games? It’s all digital, and if you thought HD movies were goiing to burst consumers caps, wait for what game downloads (15-30GB and larger every year) will do.

    see: Good bye Steam, I hardly knew ye šŸ™
    http://www.reddit.com/r/gaming/comments/fbvje/good_bye_steam_i_hardly_knew_ye/

    Oh and from that same page is this story:

    “I’m sorry to hear about you losing Steam and I don’t want to piss in your Timmy’s, but this goes a little bit further than making you have to walk to buy videogames.

    I’m in the US military and my wife’s Canadian. During my last deployment, one of the easiest ways for her and I to keep in contact while she finished up her University degree in Ontario was webcam. She had Roger’s internet and they’ve had this bullshit implemented for some time. So, she had some crap 25 Gb max rate and we hit that most every goddamn month just trying to stay in contact. (Yes, in hindsight we should have switched and whatever. That was then, this is now)

    Now that I hear everyone in Ontario is going to have to deal with garbage like this is bullshit. Netflix/Steam users have my sympathy, but all those Canadian Forces guys out there, or people separated from their families who stay in touch via webcam/streaming methods are going to take this hit the hardest. I really, REALLY encourage you guys to fight this shit the best you can. It goes farther than movies, music, and video games.”

  8. UBB certainly looks to be a good way to ensure our country is bypassed when it comes to modern innovation.

    We can’t allow the misinformation on how internet services are delivered and their current state affect us any longer. There is no looming disaster of bandwidth like they would have us believe. Only fear and paranoia to drive people hand their hard earned money over for no reason.

    With no competition and such a decisive stranglehold on last mile infrastructure, large incumbent ISPs (and indeed CRTC) need to grow up or step aside. But they can’t keep this game to themselves the way they have any longer.

    It is just flat out not good for our country.

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