How should public and private sector stakeholders respond to threats to the resilience and security of digital infrastructure?

That is the subject of a white paper released last month by Dr. Georg Serentschy, the former head of the Austrian telecom regulator and past chair of BEREC (Body of European Regulators for Electronic Communication). Recall that building resilience in telecommunications was the subject of a workshop a few weeks ago; Dr. Serentschy discussed the paper. In my recent post, I included links to a number of other articles on network resilience.

Among the highlights are a call for public-private partnership between governments and the private sector. “The highly complex and ever-changing threat landscape can only be tackled in cooperation between the private sector and governments and, beyond that, with international cooperation”. Governments are not able to address these challenges alone. Keep in mind, digital networks and infrastructure are generally private sector assets. However, since these assets are seen as strategic, what is the appropriate level of government involvement to ensure critical infrastructure is secured?

Sixteen months ago, Canada’s telecom regulator launched a consultation calling for comments on “Development of a regulatory framework to improve network reliability and resiliency”. The consultation was focused on notification and reporting requirements in respect of major telecommunications service outages. The file closed 15 months ago, but no determination has been released. In the meantime, the CRTC established interim reporting requirements.

In the February 2023 Notice, the Commission promised a broader consultation:

As its next step, the Commission will initiate a public proceeding to address network reliability and resiliency in broader terms, including issues relating to resiliency principles, emergency services (9-1-1), public alerting, consumer communication, the impact of outages on the accessibility of telecommunications services, consumer compensation, technical measures, and the imposition of administrative monetary penalties.

Such a consultation has not yet been launched. The CRTC’s departmental workplan is indicating a much less ambitious next step. “The CRTC will continue its work to enhance the resilience and reliability of telecommunications networks across the country. This includes continuing to examine requirements for reporting major service outages and future consultations on consumer communication and compensation requirements.”

Yesterday, Sammy Hudes of Canadian Press wrote a related story, “Canadian telecoms work on strengthening networks amid growing wildfire activity”. The article noted “It’s an issue that Canada’s telecommunications regulator is keenly aware of. Two consultations touching on that topic — one considering ways to improve telecom services in the Far North and another on how providers should report and notify customers of major service outages — remain in progress.”

It isn’t clear that the CRTC’s current focus on consumer communications and compensation is the best approach to develop a greater degree of resilience and security in Canada’s digital infrastructure. The work plan does not seem to include addressing “network reliability and resiliency in broader terms”, as promised in last year’s consultation.

To be fair, 6 paragraphs, representing almost 15% of that Notice of Consultation pointed to other government organizations that have roles to play. The agencies and committees are at federal, provincial, territorial and municipal levels. It also mentioned CSTAC, the Canadian Security Telecommunications Advisory Committee, as a voluntary working group that provides a forum for federal government and industry stakeholders to analyze, develop, and implement measures to protect critical telecommunications infrastructure.

The Serentschy white paper warns “regulatory authorities in most cases do not have a mandate to develop or apply a holistic view and break out of their vertical silos.” The paper suggests that policy makers may need to “give regulators a new and expanded mandate.” Dr. Serentschy suggests that increased network element redundancy, and reducing single points of failure can be at odds with other regulatory measures.

There are 10 recommendations in the white paper. Recommendation 10 calls for institutional reform, calling for the establishment of a central coordinating body as “an important step towards overcoming the usual historically fragmented governance structures.” According to Dr. Serentschy, “governments cannot tackle these challenges alone, nor can industry.” Therefore, he calls for a central coordinating, advisory and decision making body, empowered to reassess regulatory priorities, including competition policy, where necessary.

The subject of increased network resilience in a time of climate emergencies was raised on May 21 in the House of Commons:

How do we ensure digital infrastructure security and resilience are priorities for regulatory and policy determinations?

Is a more holistic approach to governance needed to improve cooperation and planning between government and the private sector? In a competitive telecom environment, how do we fund the needed network reinforcement in areas of challenging geographic and demographic characteristics?

Online platform accountability is a significant piece of Canada’s proposed online harms legislation, Bill C-63.

Much has been written about the Online Harms Act already. Observers note there are multiple distinct parts found in the legislation: Internet platform regulation; the return of Section 13 of the Canada Human Rights Act; and, perhaps the most controversial, inclusion of Criminal Code provisions.

As I have written before, my own thinking has been heavily influenced by the late Alan Borovoy, a great Canadian civil rights lawyer, who used to say we should censure, not censor, those who spew hate speech.

I ran across a relevant article from the International Center for Law and Economics (ICLE) to contribute to the discussion. Two and a half years ago, “Who Moderates the Moderators?: A Law & Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet” was written by Geoffrey A. Manne, Kristian Stout, and Ben Sperry in the context of Section 230 of the US Communications Decency Act of 1996.

To the extent that the current legal regime permits social harms online that exceed concomitant benefits, it should be reformed to deter those harms if such reform can be accomplished at sufficiently low cost. The salient objection to Section 230 reform is not one of principle, but of practicality: are there effective reforms that would address the identified harms without destroying (or excessively damaging) the vibrant Internet ecosystem by imposing punishing, open-ended legal liability? We believe there are.
…
A common set of objections to Section 230 reform has grown out of legitimate concerns that the economic and speech gains that have accompanied the rise of the Internet over the last three decades would be undermined or reversed if Section 230’s liability shield were weakened. Our paper thus establishes a proper framework for evaluating online intermediary liability and evaluates the implications of the common objections to Section 230 reform within that context. Indeed, it is important to take those criticisms seriously, as they highlight many of the pitfalls that could attend imprudent reforms.

The ICLE authors assert that there are actual harms — violations of civil law and civil rights, violations of criminal law, and tortious conduct — occurring on online platforms. These impose real costs on individuals and society at-large and therefore, justify establishment of a means to apply a measure of order and accountability to the online world.

According to ICLE, intermediary liability, applied to the platforms, can be a cost effective approach for online platform accountability. It notes that “the fundamental principles that determine the dividing line between actionable and illegal or tortious content offline can and should be respected online, as well”.

I found the executive summary and the full paper [pdf, 1MB] worth the time to review.

Still, as I wrote on Twitter (X) a few weeks ago, I remain concerned that Canada’s Online Harms Act may not address the root cause of harms online. The Act may indeed reduce the number of despicable posts we see on digital platforms, but it will do nothing to reduce the number of despicable people who hold those despicable points of view. It will just be harder to find them.

Last week, I touched on the obligation to serve in a post about the challenges of providing telecom services in high cost serving areas.

I thought it would be worthwhile exploring that concept a little more.

In the file discussed last week, the CRTC asked TELUS a number of questions. One of them started with, “Given that TELUS is currently subject to an obligation to serve in terms of the provision of basic primary exchange service, explain how the company intends to continue to meet this obligation”.

What is this obligation? Back in 2011, the CRTC issued a policy determination on precisely that issue. The operative paragraphs in that document is paragraph 6: “The obligation to serve requires ILECs to provide telephone service to existing customers, new customers requesting service where the ILEC has facilities, and new customers requesting service beyond the limits of the ILEC’s facilities.⁴” What did that footnote [4] say? “The terms and conditions associated with such service extensions are set out in the ILECs’ respective General Tariffs.”

More recently, the CRTC confirmed this in 2020, saying “In exchanges that continue to be regulated, the obligation to serve includes the provision of tariffed local voice services and related services (e.g. optional features) throughout the ILECs’ serving territories, subject to any limitations set out in the general terms of service.”

As it turns out, that is a very important caveat. The obligation to provide services is not an absolute one. If the potential customer is beyond the limits of the service provider’s facilities, then we need to examine the General Tariffs to see what terms apply.

Item 103 of the General Terms of Service for TELUS is entitled “The Company’s Obligation to Provide Service”. In section 103.1 (c), we find “The Company must provide service to all customers who apply except when… the Company cannot acquire or maintain the equipment, facilities, rights-of-way, rights-of-access, or space in or on buildings that are necessary to provide service”.

It is important to note that these terms of service are CRTC approved.

There are other interesting precedents to explore. For example, there are CRTC requirements for de-standardization or withdrawal of a service. The rules say that the carrier must provide notice to each affected customer, as well as information on how to participate in the Commission’s process. The CRTC encourages (but no longer requires) companies to identify any substitute services, where available, in the customer correspondence.

Let’s tie these provisions back to last week’s post, examining the challenges of providing phone service to 110 residential subscribers in 8 small communities with limited commercial power, located in mountainous geography. TELUS has identified an alternate service provider for customers to use as a substitute when its services are discontinued.

The commercial business case for serving these communities simply doesn’t work without a substantial subsidy. The CRTC no longer operates a fund for high cost serving areas, but the regulator could choose to designate these communities as eligible for its Broadband Fund. The two funds are fundamentally different. The CRTC used to fund the shortfall in annual operating expenses for high cost areas; the Broadband Fund is a one time injection to correct the projected business case for unserved areas.

Should a subsidy program trigger an open competition for the funding? What is appropriateness of funding a new network, when another service provider is already present?

A reminder that the CRTC re-opened its consultation on the Broadband Fund, inviting comments until June 5.

In a competitive marketplace, what is meant by the obligation to serve?

It has been a number of years since I last looked at how the CRTC deals with telecom service in high cost serving areas. In 2020, I reminded readers of an under reported consequence of the Commission’s landmark 2016 Telecom Policy determination.

At that time, the CRTC created its own broadband subsidy fund – a pot of money that seems to be easier for the Commission to collect than to distribute. But, the regulator also announced, “the Commission will begin to phase out the subsidy that supports local telephone service.” The CRTC swapped out a program that provided ongoing support for all high cost serving areas, in favour of awarding one-time payments to specific winning projects. Although the CRTC’s Broadband Fund duplicates other federal and provincial government programs, the cynic in me blames the allure of handing out oversized ceremonial cheques or appearing at ribbon cuttings.

That is relatively old news. Why bring that up today? Good question.

There is a CRTC proceeding underway that I found interesting. Perhaps you will as well.

In British Columbia, there are 8 communities served by three very small telephone exchanges with a total of 110 residential customers and 5 businesses: Leading Hill and Espinosa in the Tahsis exchange; Nemiah Valley and the Xeni Gwet’in First Nations in the Alexis Creek exchange; and, Red Lake, Tranquille Valley, Heller Creek and Green Stone Mountain in the North Kamloops exchange. North Kamloops is a forborne market, meaning that telecom services there are not regulated; in Tahsis and Alexis Creek, services are provided under regulated tariffs. Tahsis is located about 200 km from Courtenay; Alexis Creek is about 100 km from Williams Lake; and North Kamloops is in an extremely mountainous region 50km from Kamloops.

As such, these communities are connected to the TELUS backbone network using microwave radio links using the 3500MHz band. The radio systems being used in these communities are outdated. The equipment is no longer supported; the manufacturer (SR Telecom) went bankrupt 15 years ago. As if that wasn’t enough, the spectrum is being reallocated by ISED. Despite an intent for the 3500 MHz spectrum plan to recognize how it was deployed for rural fixed applications, service in these communities is a victim of the band moving to mobile service.

All this to say, TELUS notified customers early in the New Year that their phone service was going to be discontinued. The letter from TELUS indicated that customers would be receiving a cheque for $1400 as compensation. The amount was seen as sufficient to cover the installation and up to one year of service fees for an alternate service provider operating in the area.

TELUS voluntarily offered this compensation because it was guided by related situations of regulated services withdrawal. In particular, the financial compensation is comparable to the amounts that the CRTC has recently ordered other carriers to compensate customers impacted by scenarios where such carriers have applied to the CRTC to withdraw a regulated service in its entirety due to obsolete technology or increased costs that make the service uneconomic.

Note that TELUS is giving the financial compensation to all affected residential customers, even if they might have Internet services from another provider. For customers who already have Internet services, the $1,400 is well above what they will need to pay to add VoIP services for one year.

As of May 1, 88% of customers had already cashed their cheques. More than a quarter of the customers have already migrated off TELUS. In its application, TELUS says that in one of the communities, there is only one remaining customer using the TELUS service.

As TELUS wrote to the CRTC, the business case to deploy fibre facilities to these communities is not viable. Each are located very far from the nearest local exchange, requiring significant expenditures to build transport facilities via terrestrial technology. TELUS said that constructing terrestrial transport networks is simply not feasible in the short or medium term. “Such construction would require TELUS to obtain land use and access rights over Crown and First Nations lands. It is TELUS’ experience that obtaining such rights often takes years, because of the need to conduct consultations with various agencies and stakeholders.”

And as you have read on these pages countless times, mandated wholesale fibre doesn’t help the business case. It makes it even less attractive. TELUS included precisely such a dig in response to one of the CRTC’s interrogatories:

Unserved fibre communities such as these underscore why wholesale fibre-to-the-premises (“FTTP”) mandates, such as those under contemplation in Review of the wholesale high-speed access service framework, Telecom Notice of Consultation CRTC 2023-56 (“TNC 2023-56”), are not sound policy. There are still many rural and remote communities that lack FTTP access. Regulatory mandates worsen the business cases for future FTTP deployment. As a result, FTTP deployment in rural and remote communities would be most at risk, given that the business cases there are already marginal. TELUS noted the especially adverse impact on remote and rural communities of wholesale FTTP mandates in its Intervention in TNC 2023-56.

Keep in mind, there is already at least one other service provider operating in the area. Customers are not being left without any options for telecom services.

Last month, the CRTC asked TELUS to file a Part 1 application to set out:

• TELUS’ proposal for how it intends to respect the Commission’s policies and regulations governing the disconnection of local exchange service, and
• alternate options that would be available to TELUS for serving these communities (for example: obtaining a license from the new spectrum licensees, using alternate spectrum, or implementing other technologies).

The Commission noted that ISED has extended permission for TELUS to continue to use the spectrum until March 31, 2025. ISED noted that “This authorization only applies to existing legacy 3500 fixed point-to-point links and will not grant protection from interference, nor can operation interfere with other licensees in the area. TELUS will be required to cease operation upon reports of any interference from the operations of these links in the area.”

The CRTC has stated a belief that TELUS has an obligation to serve communities in its operating territory.

In a competitive world, what does an “obligation to serve” mean? TELUS responded that it is a federally-incorporated company that has authority to provide telephone and other telecommunications services throughout Canada, but it has no legislative duty, either under its incorporating statutes or the Telecommunications Act, to provide its services to any particular community or in any particular part of Canada.

TELUS wrote in its application:

Under the current legislative and regulatory framework, Commission approval is not required for a scenario where an incumbent telephone provider like TELUS faces the loss of facilities necessary to continue provisioning home phone services generally. There is, however, a process to apply for CRTC approval in analogous situations involving the withdrawal of regulated services provided pursuant to a specific tariff item. The process requires that customers be notified, substitutes be identified, and reasonable compensation in the form of a one-time payment be provided to affected customers. TELUS has proactively taken these constituent steps, plus more, in this extraordinary scenario where the continued provision of service by TELUS has been rendered impossible absent the construction of an entirely new network.

The application lays out an alternative. TELUS says the Commission can authorize (and subsidize) new construction to support fixed or mobile broadband under its Broadband Fund, furthering the CRTC’s goals to bring broadband coverage to rural and remote areas. “Though TELUS is not subject to a regulatory obligation to build broadband facilities,” the application provided details for options for two of the communities.

There is a fundamental difference between having the authority to provide telecom service, versus having an obligation to provide such service. I’ll look more at the issue of the obligation to serve next week.

At the core of this regulatory proceeding is a need to understand the economics of providing telecom service in high cost serving areas.

Perhaps on a related front, the CRTC re-opened its consultation on the Broadband Fund, inviting comments until June 5. The original Notice of Consultation had comments close last September.

These are going to be files worth watching.

Earlier this month, I promised to explain why ARPU doesn’t reflect consumer bills. In that post, I explained why ARPU trends aren’t the same as pricing trends.

Studies from ISED and monthly Consumer Price Index reports from Statistics Canada reveal significant lowering of mobile service prices.

At the same time, disinformation campaigns have said these price reductions aren’t showing up in consumer bills. Their evidence? Quarterly financial reports from service providers include an indicator, Average Revenue per User (ARPU). Industry critics say that ARPU is a proxy for monthly consumer bills, and ARPU has remained relatively flat compared to the dramatic fall in plan prices.

On Twitter, Prime Minister Justin Trudeau took the credit, saying “We’ve cut the cost of cell phone plans in half since 2019 — in part by increasing competition.” Opposition MPs and industry critics misread the post, confusing “plans” with “bills”, and then confusing “bills” with “ARPU”.

The problem is, ARPU simply isn’t a proxy for consumer bills.

Service providers have different ways of calculating ARPU. Broadly, wireless mobile phone ARPU is “wireless service revenue divided by average subscriber base for the relevant period.” The inclusions in the numerator and denominator can vary between service providers.

Superficially, we could take total consumer revenues, divide by total subscribers and the result would be the average consumer bill. Simple, right? The problem is that ARPU doesn’t just look at consumer revenues and consumer subscribers.

Oops. That is an important detail that gets missed by a number of academics and industry critics.

Let’s consider what kinds of things are included in the numerator. It usually includes more than just consumer service revenues. Most service providers report total wireless service revenues. That means the top line includes lots of things beyond consumer cellular phone plans. Connected cars? Those revenues are in there. Internet of things (meter readings, etc.)? In there. Security system connections? Fixed wireless broadband services? If it runs over the wireless network, the revenues are included in the numerator. Roaming fees are in there, but are dramatically shrinking since consumers have access to plans that include roaming. Overage fees are also becoming a thing of the past. And the $10 bundle savings you received when you combined your wireless with your home phone or internet or TV? That discount is charged to the wireline side; the full revenue is included in the wireless ARPU calculation.

As for the denominator, the ARPU calculation generally uses just the number of wireless mobile phone subscribers. So there is a mismatch between the revenues included in the numerator and the number of units included in the denominator. Consumer phone prices are dropping; most consumers have substantially lower monthly phone bills, but neither of these trends show up in the ARPU, because there are other sources of revenue being generated by the service providers. Those other sources of revenue have nothing to do with consumer revenues – or consumer bills.

As a result, ARPU may be a useful financial indicator for analysts, but it does not reflect consumer bills. ARPU is one of the many financial measures used by investors. It simply isn’t meaningful as a proxy for what consumers pay. That is why I continue to push back on those who keep spreading the misinformation.

I’ll repeat what I told a talk radio program last month. If you haven’t looked at your mobile phone plans in the past year, call your service provider or visit a shopping mall today. It is much cheaper for most plans than it used to be.