It’s about time (and timing)

Shortly after the CRTC’s Wireless Code of Conduct [Telecom Regulatory Policy CRTC 2013-271] was released, I observed a problem:

I was referring to the timings given by the CRTC in Paragraphs 368 and 369 of the Code that say:

368. In light of the above, the Commission determines that all aspects of the Wireless Code will take effect on 2 December 2013.

369. The Commission finds that where an obligation relates to a specific contractual relationship between a WSP and a customer, the Wireless Code should apply if the contract is entered into, amended, renewed, or extended on or after 2 December 2013. In addition, in order to ensure that all consumers are covered by the Wireless Code within a reasonable time frame, the Wireless Code should apply to all contracts, no matter when they were entered into, by no later than 3 June 2015.

Note the use of the word “will” in paragraph 368 versus the word “should” in paragraph 369. The CWTA asked the Commission to clarify these dates and these terms in a letter dated June 12. The CRTC replied on June 18, saying that by its calculation approximately 80% of wireless customers “would be covered by the Code by 3 June 2015.”

It is clear that the Commission intended the final 3 June 2015 implementation date to be a mandatory date. Consequently, after 3 June 2015, early cancellation fees for all wireless service contracts will be determined in accordance with the formula set out in the Code.

Frankly, the clarity of June 3, 2015 date might have been more evident had the CRTC more precisely used the word “will” or “shall” in paragraph 369, instead of the more discretionary term “should”.

But that isn’t the key point. The CWTA asked the CRTC to provide detailed interpretations of possible operational scenarios. The CRTC obliged in its response.

During the CRTC proceeding that led to the release of the Code, SaskTel filed a legal opinion prepared by Hank Intven of McCarthy’s, in respect of whether the CRTC had the jurisdiction to apply the Wireless Code to existing contracts. It is worth noting that Mr. Intven is a noted regulatory and policy expert, as a past Executive Director of Telecom at the CRTC, a member of the federal Telecom Policy Review Panel and author of The Canadian Telecommunications Regulatory Handbook. The CRTC’s interpretation of at least one of the operational scenarios is in apparent conflict with his Opinion.

As the CWTA letter states:

if the 3 June 2015 application of the Wireless Code is intended to reduce the length of all contracts to 24 months, than [sic] the three-year contracts signed between the release of this decision and 2 December 2013 are de facto two-year contracts, which would necessitate significant changes to carriers’ systems and contracts.

The CWTA letter asked for a speedy reply in order that parties’ rights to seek leave to appeal the Decision. Has the CRTC overstepped its authority?

The CRTC letter appears to be in conflict with the McCarthy’s Opinion; will we see an appeal filed with the Federal Court of Appeal?

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