Last week’s international privacy conference in Montreal provided a gastronomic backdrop for me to reconnect with a good friend, Stewart Dresner who was visiting from the UK.

Stewart’s firm, Privacy Laws and Business, is celebrating 20 years of advising companies and governments on issues dealing with data protection and privacy.

Recently, there have been a number of articles in PL&B; publications examining the privacy issues associated with social networking sites – from the perspective of companies hosting such services and organizations that have blocked access to such sites from the workplace.

In its September 2007 UK report, PL&B; noted

the interactive nature of these networks allows management effectively to listen in on staff “discussions” of grievances and how they might be addressed, which are much more honest and open than the company’s internal complaints procedure.

However,

the public nature of the networks mean that the media can bring this to the attention of management, often sooner than they would otherwise have heard of it.

How does your firm deal with Facebook? Do you embrace the power and channel it? Do you monitor the chatter about your firm?

Michael Geist delivered the closing remarks at the Montreal conference. He writes more about some of the issues discussed at the conference on his blog and in his Law Bytes column this week. Alec Saunders also writes today on a similar topic with The Social Networking “Bill of Rights”.

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privacy, Facebook, Stewart Dresner, Privacy Laws and Business, privacy policy, social networking

Once again, the CRTC has said no to Bell Aliant’s request for forbearance.

Actually, the language that the CRTC uses is more like Barbara Colorosa‘s parenting books – the answer is yes, dear, of course you can have forbearance. Just as soon as you meet the required competitor quality of service (Q of S) criteria.

In other words, you can have the cookie when you can show that you aren’t beating up the other kids in the playground.

In this particular instance, Bell Aliant was found to have been playing nicely most of the time, but it seems to have trouble meeting the guidelines for AT&T; Global Services.

You know how there was always that one trouble maker at school who seemed to set you off? Not speaking from experience, of course. Aliant’s response was that the problem is compounded by the small number of orders placed by AT&T; miss one and the numbers are blown.

It looks like Bell Aliant is just going to have to make sure it doesn’t miss any.

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Bell Aliant, MTS Allstream, AT&T; Global Services, forbearance, QoS

Last week, I wrote about the MTS Allstream complaint, seeking an opportunity to cross examine to cross examine the author of an expert report that was commissioned by the CRTC as part of its essential services proceeding.

MTS Allstream had cited a precedent in Decision 2002-34 where the CRTC had struck a piece of evidence from the record because parties were not afforded an opportunity to test the accuracy of the report.

Yesterday, the CRTC issued its determination on the complaint.

In Decision 2002-34, the Commission considered whether to admit a new expert report not already on the record submitted by one of the parties to the proceeding. The Commission decided to strike portions of the report from the record because the disputed evidence had been submitted as part of final argument and thus too late in the proceeding for parties to test.

The CRTC continues:

It is evident that the circumstances that gave rise to that conclusion are not analogous to those in the present proceeding. In the present context, the report in question has not been supplied by a party to the proceeding, nor is it the evidence of any party to the proceeding. Moreover, in the interest of transparency, the report has been made available to all parties prior to the hearing so that they can make use of it in the hearing and in argument. In this manner, the Commission considers that the parties’ procedural rights have been assured.

The concluding sentence allows the CRTC discretion to make its own determination about the Osborne Report after various parties make their own use or abuse of the findings:

The Commission will give Mr. Osborne’s report the weight that it considers appropriate once the record is closed.

The Canadian Association of VoIP Providers has issued a bulletin expressing some alarm at one of the findings of the report, that the CRTC should phase out mandatory access to non-essential facilities. However, CAVP does not appear to be registered to participate directly in the proceeding.

Since the report appears to provide a competition law perspective on the proceeding, we can expect to see parties look for comparisons to the evidence of the Competition Bureau, perhaps even cross-examining the Bureau’s witnesses on the content of the Osborne Report as a surrogate for directly testing the report itself.

The oral hearings get started next Tuesday morning.

The communications regulator in the UK, Ofcom, has begun a consultation to look at the regulatory issues associated with next generation broadband access. What is the purpose of such a consultation? While the deployment of next generation access networks will be very positive for consumers, Ofcom wants to see investment take place in an efficient manner and wants to remove any unnecessary regulatory barriers that may delay such investment.

As a result, it wants to move quickly to clearly set out the options for regulating new broadband networks, defining where ex ante regulation may be appropriate.

Ofcom provides insight into its considerations in the executive summary of its consultation paper. It begins by describing the principles that have guided its approach to broadband services to date.

The regulatory approach to broadband has had an important role in shaping how the market developed. … The most relevant aspects for the broadband market have been:

• contestability: making the opportunity for entering the market accessible to a wide range of companies;
• innovation: allowing the maximum scope for innovation by the promotion of competition at the deepest level at which it will be effective and sustainable; and
• equivalence: the requirement for operators with market power to make the inputs used by their downstream businesses available to their competitors on the same basis.

But it considers that Ofcom needs to adapt these principles and add two additional considerations in order to appropriately recognize the level of new capital investment required for next generation networks.

The five principles underlying our proposed approach are:

• contestability: we think that timely and efficient investment will best be achieved by making the investment contestable, allowing any operator who considers that there is a business case for deploying next generation access infrastructure to invest, as soon as they wish;
• maximising potential for innovation: as we recognised in the Telecoms Review for current networks, we believe that the scope for innovation and differentiation is essential for competition in next generation access, and that infrastructure investment is helpful in achieving this. We are consulting on an approach which maximises the potential for innovation, while allowing for the current economic and technical uncertainty around next generation access;
• equivalence: strong competition in current generation broadband has been helped by ensuring that all operators are able to buy exactly the same wholesale products, with the same processes and at the same price, as operators with market power. We propose to apply this principle to next generation access, supported by approaches such as functional separation, essential to reduce incentives for anti-competitive behaviour while retaining incentives for efficient investment;
• reflecting risk in returns: we recognise that anyone who makes investments in next generation access is likely to face significant commercial risks. Regulation should reflect these risks in order to provide appropriate incentives for investment in the first place. We are consulting on a range of approaches to reflect such risk such as anchor product regulation, and risk-adjusted returns; and
• regulatory certainty: It is also important that the regulatory regime we adopt is clear and in place for a reasonable period of time, to allow investors the clarity that they need to invest with confidence. We are publishing this consultation and establishing a program of seminars and meetings supporting it to provide this clarity.

Ofcom does not appear to be especially concerned that the UK lags other countries with fibre network deployment.

It may therefore be that the efficient deployment of next generation access is simply earlier in some other countries than in the UK. We do not yet see evidence that the UK will be significantly disadvantaged economically or socially as a result. It is important that we continue to monitor the situation closely for any new evidence that would change this view. However, we continue to think that promoting investment which is timely and efficient in the context of the UK market is the correct approach.

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broadband policy