Regulating competitive markets

It isn’t easy being a regulator.

Just look at the way people talk about the CRTC, Canada’s radio, television and telecommunications regulator. Complaining about the CRTC is part of our national birthright. Regardless of whether an issue actually falls under its purview, Canadians rush to blame the CRTC. Next to the post office, there may not be another government institution that engenders such opprobrium in our hearts and minds. I have observed before that “most Canadians feel they have a right, if not a duty, to criticize” the CRTC.

Some complaints legitimately fall firmly within the CRTC’s jurisdiction; some complaints are shared responsibilities with other branches of government; but, many other complaints (like Canadians being upset that off-shore streaming services block access to certain shows) simply aren’t issues that can be resolved by the CRTC. That doesn’t keep people from blaming the Commission.

Recently, some social media have taken aim at the regulator for moving at “sloth speed”, claiming “The speed at which the CRTC is operating is failing both the Canadian Telecommunications industry and Canadians as a whole.” An OpEd in the Toronto Star prods the CRTC to accelerate its wholesale internet pricing decision, claiming “The fact that Toronto is even considering building its own network to ensure affordable pricing for an essential utility is a shameful indictment of the regulatory delay in putting these options in place at the federal level.” In a bizarre approach to government relations, a wholesale-based internet service provider launched a campaign to flood the CRTC with emails, months after the close of a proceeding. It is unclear to me how this could have accomplished anything but add a further delay to the regulatory process.

One might say that such forms of complaining may succeed at inciting, without providing any clear insights to advance the regulatory processes or policy framework.

On the point of wholesale services, let’s be very clear. Even if the CRTC upholds its wholesale rates at the August 2019 level, these will not result in the $10 per month price plans being sought for low income households. As I have written before, “in recent weeks, we have seen the term ‘affordable broadband’ hijacked and applied to alternate agendas”. Such is the case with these recent, very public attacks on the regulator and the policy makers on both sides of the river in the National Capital Region.

This past weekend, I spotted a relevant 11-part Twitter stream related to the challenges of utilities regulation. Although it was written largely in response to power regulators in the wake of widespread blackouts in the south central United States, many of the comments resonated with me.

Professor Gus Hurwitz is the The Menard Director of the Nebraska Governance and Technology Center and the Co-Director of the Space, Cyber, and Telecommunications Law Program at the University of Nebraska. I encourage you to follow him on Twitter. Here is the essence of his 11-part weekend rant:

I spent much of last week watching recordings of meetings of local utilities regulators from around the country. They were terrible. Simply terrible. This isn’t a criticism of the regulators, however.

They are under-resourced, frequently staffed by well-intended but non-expert individuals — sometimes staffed by ideological nut jobs (from the left or right) hell-bent on using the regulator to impose their own policies.

There is frequent illegality. Either citizens demanding they do illegal things, investigation of malfeasance of prior commissions, or commissioner fighting over how to do things that the law says they cannot. But again, this isn’t a criticism of the regulators. They perform an important function, and are often trying to thread impossible needles.

This is especially true when they are trying to navigate changing technologies being used in new ways by a changing society with different needs, using static laws developed for older, generally simpler, technologies, the anticipated multi-decade CapEx and cost recovery.

And “federalize regulation” isn’t all that great a solution, either. Putting aside the legal issues, the local regulators often are responding to legitimately localized concerns. And federal regulators often face similar resource and expertise constraints!

I keep saying this: I’m not blaming the regulators. So who am I blaming?

Well, I’m blaming you, and me, and everyone who takes for granted their work or expects both regulators and industry to magically deliver perfect, low cost, zero risk, reliable results, while consistently voting to under-fund the regulators, passing punitive laws that harm industry, and electing lying politicians based on their promises to cut red tape and hold industry accountable. And while refusing to actually get involved with the process ourselves.

All the great stuff that makes our modern lives so wonderful … it takes public and private collaboration and a society that’s both willing to fund it and understanding of its limitations.

Today, we have overt public and private antagonism and a society that expects everything to work perfectly at no cost. Given that, expect things to get worse before they get better; expect things to get worse unless those who are able to help are willing to get involved.

It’s easy to complain about the performance of a regulator, or indeed about many regulated industry participants. And it is certainly within our rights to complain. I suspect that prospective staff members at the CRTC are warned (or should be warned) that if they have a thin skin, they may want to look at another line of work. I’ve attracted my fair share (or more than my fair share) of critiques for the crime of providing an alternate point of view.

While it is easy to complain, it is a lot tougher to get involved and help make things better. It takes much deeper thought to improve regulatory processes, maintaining balance to improve outcomes for consumers (especially vulnerable consumers).

Regulating competitive markets isn’t easy in the best of times. During COVID-19 induced lockdowns, it must be much more complicated for staff to collaborate on complex economic calculations and determinations and prepare carefully nuanced decisions.

The Telecom Act explicitly acknowledges that the regulator won’t always get it right when issuing an Order or Decision. That is why a number of channels of appeal exist, channels that have been used by major carriers and smaller service providers alike. Filing an appeal isn’t an abuse of process. Indeed, it is precisely a proper use of the processes established in the Act, as part of the checks and balances that exist for the regulator and the Courts.

Let the regulator do its job. When it issues its determination, if you don’t like it, file an appeal.

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