The CRTC’s procedural rules include a provision (Section 44(1)) that allows the Commission to award costs to an intervenor who has an interest in the outcome of a proceeding, has participated in a responsible way and has contributed to a better understanding of the issues.

This rule is designed to assist the participation of intervenors that

will receive a benefit or suffer a detriment as a result of the order or decision resulting from the proceeding

While section 56 of the Telecom Act gives the CRTC wide discretion to “order by whom and to whom any costs are to be paid”, the Rules of Procedure seem pretty clear that “costs [are] to be paid by the regulated company”, not other classes of public interveners.

That is why it was somewhat surprising that the CRTC’s final orders of the year threw a lump of coal into the stockings of the Canadian Marketing Association, ordering the CMA to pay for the participation of a variety of consumer groups in the Do Not Call List proceeding.

One might have thought that CMA should have been eligible to receive a cost award – meeting all of the criteria set out in the rules. The CRTC didn’t care that CMA itself is a non-profit organization that represents a class of users. Instead, the CRTC noted that the CMA previously was charged costs in a 2002 proceeding.

While the CRTC claims to have broad discretion under the Telecom Act, by exceeding the bounds of its Rules of Procedure it sends a bad message to groups and individuals that seek to contribute “to a better understanding of the issues by the Commission”.

The message is that the CRTC can arbitrarily award costs to punish a class of users or participants in a hearing. Not only do users have to be willing to risk absorbing their own costs of appearing, but the CRTC could charge them for others to have appeared as well.

This sort of discretion should be taken away when the Minister opens up the Telecom Act for reform. The Commission has demonstrated poor judgement in discouraging the public from participating in its proceedings.

In a forborne environment, what is the role of the CRTC in telecom?

That is a question some are asking in the wake of the December 11 announcement by the Minister to propose a variance in the rules for local telecom service forbearance.

We have already seen that there will be a few challenges operationalizing the intent of the variance. As I wrote last Thursday, it is not yet clear what the criteria will be for business services. For the next few years, the CRTC will assess applications against these factors.

We suspect that the proceeding to assess wholesale essential services, launched in November, will be even more important in a forborne environment, in order to ensure sustainable competition. As described earlier in the week, the recognition of the importance of the wholesale regime found its way into the modifications made in the final version of the Minister’s policy direction this past Monday. Yesterday, the issue of billing and collection rates is an example of the types of concerns some industry players will have in the determination of which elements are in fact essential.

Access to essential facilities, at a fair price, even in an environment with facilities-based competitors, will ensure that resellers and new entrants can continue to discipline the marketplace, maintaining incentives for innovation and price competition for consumers. It remains the responsibility of the CRTC to regulate the wholesale access regime.