Clear, mutually exclusive, and exhaustive

In statistical terms, we would use the terms “mutually exclusive” and “exhaustive” when trying to categorize a population into different subsets: setting clear boundaries, but covering the entire field.

Think of it in terms of defining answers for a multiple choice questionnaire, ensuring there isn’t any overlap (mutually exclusive), while making sure that every possible answer is covered (exhaustive). How many times have you looked at a poorly worded survey question and just sat there, wondering how you were supposed to choose just one answer? I’m certain that you must have seen questions for which the only possible correct answer for your circumstance was “none of the above”, but that wasn’t a choice.

What happens when legal questions look like that? When there is a question of who is in charge or, perhaps even worse, if no one is in charge?

TELUS has sought leave to appeal the CRTC’s recent Regulatory Policy – Review of Mobile Wireless Services decision, filing an application late Friday with the Federal Court of Appeal. TELUS says the CRTC had boundary issues in its recent Wireless Review, failing to exercise its authority in one case; overreaching its jurisdiction in another.

A couple of weeks ago, in “Channels of appeal”, I described the three ways a CRTC decision can be challenged in the context of a Cabinet appeal filed by DOT Mobile. I found Friday’s TELUS filing with the Court to be interesting, and perhaps somewhat unique to Canada, because regulatory authority for wireless services is divided between two different agencies: ISED and the CRTC. In most countries, there is a single regulator, such as the FCC in the US, or Ofcom in the UK.

Indeed, 15 years ago, in Recommendation 5-10, the Telecom Policy Review Panel said “The authority to regulate Canada’s radio spectrum and to license its use should be transferred from Industry Canada to the CRTC.” Had the government unified the bifurcated authorities over wireless communications, we may not have the problems that TELUS raises in its appeal documents, where the issues appear to arise from the boundaries between CRTC and ISED.

For any given telecommunications issue, there should be clarity: does authority rest in the hands of ISED or the CRTC?

According to TELUS, there are two problematic sections of the CRTC’s new Mobile Regulatory Policy with errors in law or jurisdiction: an issue of access to local infrastructure; and, the issue of mandated seamless roaming.

In the first instance, TELUS says the CRTC is failing to exercise its authority (under Section 43 of the Telecommunications Act) to enable carriers to build wireless infrastructure for 5G networks, when it said [at Paragraph 451] “the Commission notes that it does not have general jurisdiction over tower siting, and that ISED already has well-established rules in this regard, including a municipal consultation process.” According to TELUS, ISED doesn’t actually have the same power, “and declining jurisdiction over access for their deployment, the CRTC has created a lacuna in the federal regulatory scheme”.

The CRTC recognized the difficult jurisdictional question over the issue and the decision contains 10 paragraphs in its decision discussing the Commission’s determination [paragraphs 477-486]. TELUS argues there is a difference between the CRTC’s power to order access, as contrasted with the Minister’s power to approve such access.

The CRTC incorrectly concluded that it did not need to exercise jurisdiction given the power of the Minister of Innovation, Science and Industry (the “Minister”) under the Radiocommunication Act to approve sites for the placement of radio apparatus. The Radiocommunication Act does not provide access to such sites.

While in the first instance (the access issue), TELUS says the CRTC isn’t exercising powers that it has, in the second case, TELUS says the CRTC was acting beyond its authority when it ordered the major carriers to provide seamless roaming.

TELUS and other wireless carriers have spent billions of dollars licensing wireless spectrum from the Minister under the specific conditions of licence set by the Minister. Jurisdiction to amend the Minister’s condition of licence is reserved exclusively to the Minister in the [Radiocommunications Act]. The CRTC cannot simply reach a different policy conclusion and issue a conflicting condition.

In successive spectrum consultations, the Minister has rejected mandated seamless roaming and TELUS says that it has spent $4.5 B acquiring “licences [that] contained specific
conditions that seamless roaming would not be required.” The appeal documents say that the CRTC has reached into an area that is exclusively within the powers of the Minister and has created an “operational conflict”: “if a regional wireless carrier claims entitlement to seamless roaming, a judge or other decision maker cannot give effect to both the Conditions of Licence the Minister granted to TELUS under the Radiocommunication Act and the CRTC Decision.”

The appeal documents make for an interesting read, with citations dating back to the Constitution Act of 1867 and the Railway Act of 1899.

Failing to exercise powers that it has, while exerting authority over another area where it lacks jurisdiction.

This will be an interesting proceeding to follow, perhaps helping to create improved clarity in jurisdictional issues impacting the regulation of wireless services in Canada.

At least for these two telecommunications issues, hopefully the court will clarify the answer to the question, “does authority rest in the hands of ISED or the CRTC?”

Would we be in the same position if successive governments had adopted more of the recommendations of the 2006 report from the Telecom Policy Review Panel?

Clear, mutually exclusive, and exhaustive. For any given telecommunications issue, shouldn’t we be able to tell who is in charge?