Mark Goldberg


www.mhgoldberg.com





Scope

Last week, the CRTC called for comments on whether it should expand the scope of its Review of Usage Based Billing (more formally known as: Telecom Notice of Consultation CRTC 2011-77: Review of billing practices for wholesale residential high-speed access services).

The “scope letter” asked for comments to be filed by yesterday, in effect creating a proceeding within a proceeding. For my readers that are new to regulatory proceedings (and who are taking their legal training from US law shows on TV), you can think of this as a part of the preliminary motions.

A lot of submissions were received – many were not circulated to the parties per the instructions. As an interested party, I received the materials from the major players and have made many of them available here:

There may be others that were not served to all parties, or that arrived late last night. In today’s blog post, I won’t even begin to scratch the surface in reviewing these submissions.

As the CRTC’s letter indicated:

The Commission is in receipt of a letter dated 10 February 2011 from the Public Interest Advocacy Centre (PIAC) on its own behalf and as counsel to the Consumers’ Association of Canada (CAC) requesting that the Commission expand the scope of the proceeding to consider the utility of usage-based billing as an Internet Traffic Management Practice for all retail customers. PIAC and CAC further requested the removal of the first subparagraph (i) of paragraph 12 and subparagraph (ii) of paragraph 13 of the Notice of Consultation.

The Commission is also in receipt of a letter dated 11 February 2011 from the CanadianNetwork Operators Consortium (CNOC) requesting that the Commission expand the scope of the proceeding to include a review of the regulatory framework for wholesale high-speed access services. CNOC also requested the Commission to establish online consultations and an oral public hearing as part of this proceeding at the outset as well as other modifications to the structure of the proceeding.

My regular readers are aware that I found the phrasing of the original objectives to be off. I characterized it as a potential typo. However, I was somewhat surprised that PIAC sought to remove the offending paragraph, because it may have opened the door for the proceeding to look at retail pricing. The problematic paragraph is 12(i)(a) in the Notice of Consultation:

a.       As a general rule, ordinary consumers served by Small ISPs should not have to fund the bandwidth used by the heaviest retail Internet service consumers.

I wonder if it may have been a tactical error for PIAC to have raised the question of removing the offending paragraph, while asking for the scope to be expanded to include retail. On those lawyer TV shows, I thought the senior partner says that you don’t ask a question unless you are ready for the answer. Would retail have arguably been fair game based on the wording of 12(i)(a)? Is PIAC now giving the CRTC an opportunity to slam the door closed on extraneous references to retail at the outset?

BC Broadband was rightly pragmatic in its comments: expanding the scope will ultimately lead to delays which inhibits the implementation of Speed Matching:

The BCBA is extremely concerned that expanding the scope of 2011-77 may further delay theimplementation of speed matching opportunities at reasonable wholesale pricing.

Remember, usage based billing was the pricing mechanism associated with introduction of higher speed wholesale access. It is somewhat surprising that CAIP and other associations representing alternate ISPs didn’t ask for the CRTC to lift its stay and instead make the rates interim in order to allow them to be corrected retroactively and permit access to higher speed access services.

I remain convinced that the outcome of the review needs to ensure that all ISPs have the flexibility to structure their pricing as they choose. Despite the rhetoric, there is a vibrant marketplace for internet services in this country and, once the wholesale rate structure is fixed, alternate ISPs will be able to structure unlimited plans, should they choose.

As the cable companies highlighted, this is consistent with Minister Clement’s statements on February 5 on CBC Radio:

Well I guess our approach as a government is that we should allow different Internet service providers to offer different packages to customers and then customers get to choose which one best suits their lifestyle.…

So, I guess my answer is, to Bell: If you want to pursue user-based billing, go right ahead.  And if your customers want to pay for that because they like Bell services, that’s fine

As I wrote yesterday, “Consumers benefit from having a wide array of choices in the market – choice of service providers and choice in pricing models.”

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