The CRTC has issued another update to Telecom Notice of Consultation 2009-261, which has been titled “Proceeding to consider the appropriateness of mandating certain wholesale high-speed access services.”

Today’s update, number 7, expands the scope and sets out a new schedule in order to incorporate the directions from Cabinet issued a week ago [Bell/TELUS Order and MTS Allstream Order].

The Order in Council states that the Governor in Council considers that the continued development and availability of broadband Internet infrastructure and services is important for Canadians and the Canadian economy. It notes that it is critical that the regulatory regime provide a cohesive, forward-looking framework that provides the proper incentives for continued investment in broadband infrastructure, encourages competition and innovation, and leads to consumer choice.

So, TNC-2009-261-7 reopens the paper proceeding and delays the oral hearings that had been scheduled to open in early January.

Specifically, the CRTC is seeking comments by February 8 asking:

1. the application of the existing essential service framework on a forward-looking basis such that it provides appropriate incentives for continued investment in broadband infrastructure, encourages competition and innovation, and leads to consumer choice; and
2. in the context of the discussion provided in response to A, above,
   1. whether the speed-matching requirement, mandating the provision of the high-speed access services under consideration, or mandating access to any new types of Internet access infrastructure does, or would, unduly diminish incentives to invest in new network infrastructure in general and, in particular, in markets of different sizes;
   2. whether, in the absence of the speed-matching requirement and the mandated provision of the high-speed access services under consideration, there would be competition sufficient to protect the interests of users;
   3. whether the respective wholesale obligations imposed on ILECs and on incumbent cable carriers are equitable or represent a competitive disadvantage; and
   4. whether the impact of these wholesale requirements unduly impairs the ability of incumbent telephone companies to offer new converged services, such as IPTV.

The hearings will now take place May 31-June 4, finishing up in time for everyone to attend The 2010 Canadian Telecom Summit, which opens on June 7. We are open through the holidays if you are looking to register early with your remaining 2009 budget.

A Virginia court has convicted neo-Nazi Bill White for threatening Ottawa human rights lawyer Richard Warman more than three years after the threats first appeared on the internet.

Long time followers of this blog will recall that we wrote about this case in August, 2006. At the time, we sought authorization for carriers to block the death threats.

Following the verdicts, U.S. Attorney Timothy Heaphy said:

For an extended period of time, William White has hidden behind the First Amendment while making racist remarks and threatening people who are different from him. While the First Amendment protects our ability to express views even if unpopular, it does not provide a license to threaten, intimidate, and inflict emotional distress.

In this case, the threat was made from a country with a legal and judicial system that was willing to prosecute the perpetrator of the illegal posting.

How should a country maintain the sovereignty of protecting its own citizens from illegal content?

When does legitimate free speech cross the line? The instructions to the jury are interesting in defining a “true threat”:

For you to find the defendant guilty of each count, you must find that the communication issued in that count contains true threat. The First Amendment does not protect true threat. Whether a communication in fact contains a true threat, is determined in accordance with the interpretation of a reasonable recipient familiar with the context of the communication.

The government does not have to prove that the defendant subjectively intended for the recipients to understand the communication as a threat. The speaker need not have intended to carry out the threat or have the ability to carry out the threat. The government does not have to prove that the person who received the threat was actually placed in fear of harm.

On the other hand, a statement does not become a true threat simply because it instills fear in the listener. You may, however, consider the reaction of any recipient in determining whether a reasonable person would consider the message a true threat. A true threat is a serious expression of an intent to injure the person of another or to commit an act of unlawful violence against a particular individual or a group. A true threat is a serious threat as opposed to mere idle or careless talk, exaggeration or something said in a joking matter.

A true threat is more than mere political hyperbole or vehement caustic and unpleasantly sharp political attacks or crude offensive and abusive methods of stating political opposition. Identifying and providing personal information on a Web site standing alone, while it may be offensive or disturbing to those listed, is protected by the First Amendment. The mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. To be a true threat the communication does not need to be directed at inciting or producing imminent lawless action.

You may find that a particular statement is a true threat if you find that the statement was made under such circumstances that an ordinary reasonable person who was familiar with the context of the communication would interpret it as an expression of an intent to injure the recipient or injure another person.

Of course, this is the way a US jury was instructed so it would not necessarily hold for Canada; but this verdict demonstrates clearly that there are bounds on speech freedoms.

As many of you prepare to head off in search of warmer climes, I’m planning to slow down postings over the next few weeks as well, spending a little more time with the family.

As I mentioned last week, you should have received the first email blast promoting The 2010 Canadian Telecom Summit, taking place June 7-9. Registrations are open; we can process your registration and get you a receipt immediately, if you are looking to use up 2009 funds in your year-end budgets.

We’re going to be looking at Canada’s national digital strategy, the changing market for mobile communications, and all of the issues that are at the forefront of our dynamically evolving communications industry.

I’ll look forward to see you there!

Today, I’d like to focus on an interesting issue of process.

The Telecom Act says:

12(1) Within one year after a decision by the Commission, the Governor in Council may, on petition in writing presented to the Governor in Council within ninety days after the decision, or on the Governor in Council’s own motion, by order, vary or rescind the decision or refer it back to the Commission for reconsideration of all or a portion of it.

In the case of the Globalive review, there was no petition presented; the Minister of Industry set in motion a review of its own motion. For that kind of process, there is not a lot of procedural definition.

That raises an interesting question of process. Would the Globalive determination have been delayed if there had been a “petition in writing”? For example, let’s say that someone looked at the CRTC’s decision and thought that there was a problem with paragraph 45 – which has some interesting ideas about independent directors. [As an aside, how independent can we consider the director named by one shareholder to be?]

Once the Minister started his own review, what would have happened if a party representing the interests of proper corporate governance had filed a petition to the Governor in Council? Normally, this would cause a series of prescribed activities. The Department would have waited 90 days until January 27 (the end of the cabinet appeal period defined in the Act) and then posted a notice calling for comments in the Canada Gazette.

Check out the processes described in the recitals in the MTS Allstream and Bell / TELUS orders posted a couple days ago.

It would have taken until late February before the paper consultation was complete. By then, Globalive might have brought itself into compliance with the original CRTC Order through a creative financing scheme with one of the banks.

Did Globalive’s opponents miss a clever procedural manoeuvre?

Bell Aliant has announced the completion of an $8.2M investment in broadband infrastructure in PEI, enabling the company to deliver high-speed Internet to virtually all areas of the Island.

Now, Bell Aliant and the government of PEI have launched a $1M Rural Broadband Fund, a five-year strategic partnership to support innovation in information technology across PEI.

In October, we released our report (Lagging or Leading) which called for increasing the attention on stimulating demand for broadband services.

According to the CRTC’s Communications Monitoring Report, PEI lags the rest of Canada in broadband adoption; at the end of 2008, it was the only province with less than 60% of households connected to broadband service.

Will PEI be able to stimulate its digital connectivity through universal access and the Rural Broadband Fund?