I first started looking at the issue of setting boundaries on the internet around 15 years ago, in the early days of this blog. At the time, the concern was illegal content: child abuse and exploitation, hate, and death threats.

In the early days, there were many naysayers.

They said the internet can’t be tamed – there is just no technical means to do so. We were told regulating the internet would break it. “Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”

Times have changed. Around the world, the discussion has transitioned from why we cannot tame the ‘World Wild Web’ into how should we regulate content and platforms.

Already, internet services providers around the world routinely block illegal and malicious content, such as child abuse images, viruses, spam, attacks.

Various countries are imposing a variety of rules on content, dating back perhaps 20 years to France / Yahoo, and Europe’s 2018 General Data Protection Regulation, ensuring that major platforms conform to national laws. And Canada is hardly the only country looking at ways to get global technology firms to share in the wealth to achieve internet related social objectives. FCC Commissioner Brendan Carr linked to his new opinion piece in Newsweek (Ending Big Tech’s Free Ride) saying, “Big Tech has enjoyed a free ride on our Internet infrastructure while sticking everyday Americans with billions of dollars in costs. It’s time to end this sweetheart deal and force Big Tech to pay its fair share.”

I won’t delve into the details of Canada’s Bill C-10, “An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts”, other than to say that just about everyone should agree that Canada’s Broadcast Act (1991) was overdue for an update. Thirty years ago, the very nature of broadcasting was very different from today. The term ‘convergence’ was being thrown around, but telephone companies were not yet seriously competing in the TV distribution business; at the time, few understood the disruptive potential for over-the-top video services. Netflix was still 7 years away from starting its DVD by mail service. Amazon wasn’t created until 3 years later.

Hence, the creation of the Broadcast and Telecom Legislative Review panel, its national consultations and the resultant January 2020 report [pdf, 2.4 MB], all of which lead up to the legislation being reviewed by Parliament’s Standing Committee on Canadian Heritage. It was not produced in a vacuum.

In “The crackdown on ‘Big Tech’ targets symptoms rather than the disease itself” in the Globe and Mail this past weekend, Sue Gardner writes “[Heritage Minister] Guilbeault and his team are on a mission to regulate Big Tech. It’s important work, it’s overdue and it needs to move forward.” She concludes “it’s possible the government is laying the groundwork for legislation designed to go to the heart of the problem: the business model.”

Relevant to this discussion, it is worth noting that while Parliament’s Heritage Committee reviews Bill C-10, the Senate is reviewing Bill S-203, “An Act to restrict young persons’ online access to sexually explicit material”.

Similar discussions of regulating “Big Tech” are occurring south of the border. There is an interesting session being held tomorrow afternoon, Wednesday May 26, from 12:30-1:30 (Eastern time), looking at Section 230 of the US Communications Decency Act, a section designed to promote a competitive online ecosystem that maximizes user control while guarding against illegal activities. “Proposals to reform Section 230 — and views about its impact — vary. Some believe the law is a key protector of online expression, while others believe it provides cover for suppression of free speech. And some seek to expand Big Tech’s responsibility to limit what can be said on social media.”

The session, to be moderated by Mark Jamison (Director of University of Florida’s Public Utility Research Center), will feature panelists:

• Alan M. Dershowitz, Felix Frankfurter Professor of Law, Emeritus, Harvard Law School
• Daniel Lyons, Visiting Fellow, AEI, and Professor of Law, Boston College
• Matt Perault, Director, Center on Science & Technology Policy, Duke University

I suspect some issues will arise that are relevant to policy and legislative matters being reviewed in Canada. And it is free of charge.

It’s no longer a question of whether the World Wild Web can be tamed. The key question is how.

Assuming you believe in evidence-based policy making, last week wasn’t very good for advocates of structural separation in telecommunications, and with good reason.

New reports from the UK communications industry regulator, Ofcom, provide further evidence of the short comings of structural separation for investment in broadband infrastructure.

It was a year ago today that I wrote “A more evidenced based approach is warranted”, which included a video of an exchange between TELUS Chief Customer Officer Tony Geheran and then Conservative Industry Critic, Calgary-Nose Hill MP Michelle Rempel Garner at Parliament’s Industry Committee (INDU). Let me refresh your memory of the exchange.

Michelle Rempel Garner: “Mr. Geheran, I think I am saying your name right. You made a comment tonight. You said ‘if you have a policy that fundamentally undermines an investment strategy, you have to change policy’ and I think I agree with that. So I’d start with saying, do you think that structurally separating the builders of network from Internet Service Providers is a way to solve the policy tension that I just described?”

Tony Geheran: “No, I don’t. I haven’t seen that work anywhere globally, to sustainable effect.”

Michelle Rempel Garner: “It’s in the UK, right?”

Tony Geheran: “Yeah.”

Michelle Rempel Garner: “It’s like the primary model in the UK.”

Tony Geheran: “But if you look at the UK, they are wholesale moaning about the quality of their infrastructure, their lack of fibre coverage. across what is a very small geography. I know. I originated from there. And quite frankly, the Canadian networks are far superior in coverage and quality and performance through COVID has demonstrated that.”

Michelle Rempel Garner: “Well, that’s certainly not what we’re hearing in our offices from end users and that’s not the reality that we’re hearing in testimony tonight from you.”

Last week’s report from Ofcom confirmed Mr. Geheren’s view of the world. According to Ofcom, “the average download speed of UK residential broadband services increased by 25% since 2019, from 64 Mbit/s to 80.2 Mbit/s.” According to the CRTC, at year-end 2019, 18 months ago, the average download speed in Canada was already 176.9 Mbps, more than double the current speed in the UK.

In its Spring 2021 Connected Nations Update, Ofcom indicated that “Full fibre coverage continues to increase at pace, up to 21%” of UK homes by January 2021. According to the CRTC, 44.7% of Canadian homes had fibre to the home access, again more than double what is in the UK.

Those who promote “structural separation” won’t like seeing the evidence published by the regulators, but it is proof that Mr. Geheren was right, “the Canadian networks are far superior in coverage and quality and performance through COVID has demonstrated that.”

Last week also saw a new report on Australia’s state-owned National Broadband Network (NBN), saying that 5G “will take business away from a financially fragile [NBN] operation loaded up with debt. The state-owned telco owes A$19.5 billion to the national government, with revenue last year of A$3.5 billion.”

So, last week wasn’t very good for those who advocate structural separation, at least for those who believe policy should carefully examine the evidence.

Such evidence continues to confirm what most of us know: that structural separation is a losing regulatory model.

As the CRTC, the Competition Bureau and government policy have each determined, facilities-based competition is the sustainable regulatory model, promoting investment. Canada’s future depends on connectivity.

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?

For the past couple of weeks, it seems that ISED press releases have been flowing on a daily basis, sometimes multiple announcements per day, announcing funding to support broadband investments in rural Canada.

In some cases, work will be completed this year. In other cases, (like this), the announcements indicate that construction will be completed by September 2022, nearly a year and a half from now.

Why such a long construction interval?

There can be a number of factors at play: availability of workers, the need for detailed needs inventories, mapping, engineering, ordering equipment, permits. All of these have to precede the start of actual construction, and in some areas, some activities simply aren’t possible at certain times of year.

In many parts of Canada – especially rural Canada – major construction is tied to the seasons. A few years ago, at The 2018 Canadian Telecom Summit, Bell Canada’s CTO spoke about the challenges of meeting the limited summer shipping window to prepare for arctic construction on Ellesmere Island. For other communities, fans of Ice Road Truckers know that some locations depend on shipping in the winter when lakes are frozen over.

The Rapid Response Stream for Canada’s Universal Broadband Fund was announced November 9, with applications due January 15. This stream set aside up to $150M for projects that could be completed before November 15 of this year. That is just 6 months from now. For many companies, that is already an awfully tight timetable to complete a project of any meaningful size.

Applicants had just 2 months to apply and nearly four months later, most of those applications have not yet been approved. Many won’t be approved. Surely, there are many that could have been rejected already and those applicants should have already been told.

I haven’t seen a scorecard on the program, but it might be a good idea for the government to produce one. It has been reported that 576 applications were received. Whoever is managing the program can hopefully let us know the key indicators being tracked:

• how many of these projects have been approved,
• how much of the budget have these projects consumed,
• how many households are covered by the approved projects,
• how many applications have been formally rejected,
• how many projects have been completed,
• how many households now have access,
• how many households have subscribed.

What else would you track on your dashboard?

Time is running out. For the Rapid Response Stream to be “rapid”, remaining projects under the program will need to be finalized in the next few weeks, or it will be impossible to meet the November 15 completion deadline.

Watch for more projects to be announced, hopefully somewhat rapidly.

May 11 is Census Day in Canada. As Statistics Canada describes it:

Every five years, Canadians are invited to participate in the census to help paint a portrait of Canada’s diverse population and the places where we live.

The Census of Population provides high-quality information on key socioeconomic trends and analysis that helps Canadians make important decisions that affect our families, our neighbourhoods and our businesses.

The Census captures an important snapshot of Canada’s population, said to be painting “a detailed and comprehensive statistical portrait of Canada”. It yields high quality information to inform policy makers and planning for government programs and social services, infrastructure and investment from both government and private sectors, leading to better outcomes for all of us.

For most of us, it takes just a few minutes to fill out the short form. A quarter of us will receive a long form [or this version] that gathers more detailed information, such as family and demographic concepts, activities of daily living, immigration, ethnocultural diversity and languages, education, labour, commuting, and Veterans, income and expenditures, and housing.

When I did my graduate work in statistics, I chose a school in Ottawa because of Statistics Canada; many of the faculty at the time had close ties to the government agency and were world-leading statisticians. From them, I learned a lot about striving for excellence in data collection and reporting. Frequent readers know that I often decry some of the embarrassingly poor quality of analysis masquerading as reports on the digital economy.

I am much more inclined to rely on Statistics Canada for information gathering. Three months ago, I wrote “Better data leads to better decisions”, talking about Statistics Canada new telecommunications data portal. It is continuing to be enhanced with even more data and high quality information.

A few weeks ago, I described a webinar taking place later this week (on Tuesday), asking “Are pandemics caused by lack of good information?” The abstract for the session says “A pandemic is essentially an information problem, and if we solve the information problem, we can defeat the virus.” There is still time to register for Tuesday’s session.

The census sets the foundation upon which so much of our demographic information is built. Statistics Canada has even come up with a page of different Spotify and YouTube soundtracks to help get in the mood. [It clearly isn’t the same staid agency from my grad school days!]

Better data definitely leads to better decisions. Be sure to count yourself in.