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Claude Doucet

Secretary General
CRTC
Ottawa, ON K1A 0N2

Via GC Key

December 5, 2018

Re: 22 November 2018 Telecom Commission Letter Addressed to Various Parties Regarding
the Proceeding to establish a mandatory code for Internet – Procedural Requests

Reference: 1011-NOC2018-0422

Dear Mr. Doucet,

We are writing to provide the CRTC with an understanding of the nature of the activities
involved in preparing evidence-based interventions to inform Commission decision making, and
to provide insights as to why an initial consultation period of only twenty-eight business days is
insufficient for organizations and individuals with limited resources for regulatory engagement to
produce evidence-based interventions.

In Telecom Notice of Consultation CRTC 2018-422, regarding the Proceeding to establish a


mandatory code for Internet services, the Commission “is seeking detailed comments, with
supporting rationale, on the need for such a code; its contents, application, implementation,
administration, enforcement, and promotion; and how its effectiveness should be assessed and
reviewed.” All comments received in response to the Notice of Consultation become part of the
record of the proceeding, and it is the Commission’s intention to compile a “complete record” to
inform its deliberations on establishing the proposed code.

In this proceeding, as in others, the Commission is dependent upon the goodwill of public
advocacy groups, consumer and citizen organizations and academic researchers to contribute
their comments to the record. A record that reflects balanced perspectives from a diverse range
of stakeholders is critical for enabling evidence-based decision making at the Commission and
advancing the public interest. While there is no obligation for the aforementioned groups and
individuals to participate in CRTC consultations, many, including the undersigned academic
researchers, have contributed extensively to, and analyzed, various consultations in recent
years, including the initial development and subsequent review of the Wireless Code of Conduct
(leading to Telecom Regulatory Policies 2013-271 and 2017-200), creation of Quality of Service
metrics for high-quality Internet service, the Review of Basic Telecommunications Services
(leading to Telecom Regulatory Policy 2016-496), and the recent consultation to inform the
preparation of a Report regarding the retail sales practices of Canada’s large
telecommunications carriers (Telecom and Broadcasting Notice of Consultation CRTC 2018-
246).

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As academics, we contribute to these consultations by providing evidence based on our
research and expertise, evidence that is developed by reviewing literature, conducting
international policy comparisons, analyzing data produced by the Commission and other
sources (for example Statistics Canada, the OECD and the ITU), and conducting original
research. Producing quality evidence to inform the specific and unique policy questions posed
by Commission consultations takes considerable time and effort, as does presenting such
evidence according to the Commission’s Rules of Practice and Procedure. It is important that
we share our research findings with the Commission, and we feel a strong obligation to do so.
Many of us receive support from federal research funding agencies (e.g. SSHRC) to conduct
independent research with the aim of contributing to evidence-based policy making. This
independent academic research informs Commission deliberations on matters of public and
consumer interest, but we can only contribute to the development of policy and regulation when
the Commission’s deadlines and schedules for participation allow sufficient time to responsibly
prepare interventions.

In a letter dated 22 November 2018, the Commission denied a request from the Public Interest
Advocacy Centre (PIAC) to change the schedule for submitting comments regarding Telecom
Notice of Consultation CRTC 2018-422. Despite indications from multiple parties that the
proposed schedule would be difficult to meet, and statements of support for PIAC’s extension
request, the Commission indicated that it “is not convinced that the current schedule, which
allows 40 days before initial submissions are due, does not provide sufficient time for all parties
to make their initial comments.”

Following this decision, a number of potential interveners, including PIAC, the Forum for
Research and Policy in Communication (FRPC), the Consumers’ Association of Canada
(National Association and Manitoba Branch), the Consumers Council of Canada, the Ageing +
Communication + Technology research organization, CIPPIC and Openmedia have informed
the Commission or indicated that they will not participate in this proceeding. We note that these
organizations have limited staff engaged in preparing submissions and understand that they do
not have the resources needed to participate effectively within the prescribed timelines.

With this letter, we explain why the 28 business days allowed for parties to prepare initial
comments in this proceeding is insufficient for us as academic researchers to produce informed,
high quality, evidence-based interventions regarding the development of a code of conduct for
Internet services. This explanation is offered to provide the Commission with insights into the
processes we adopt in preparing interventions, and identifies specific constraints that apply to
the production of academic research for the purpose of contributing evidence to proceedings.

Preparing an intervention involves four steps, outlined below.

Step 1: Determine whether to participate in the consultation


● Read Notice of Consultation and Appendices (41 pages)

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Step 2: Preparation
● Review the Related Commission Documents as cited in the Notice of Consultation
(NoC): for 2018-422 fifteen documents are noted as being related to this consultation
● Conduct a detailed review of recent decisions on codes of conduct, as outlined in
Broadcasting Regulatory Policy CRTC 2016-1 (TV code), Telecom Regulatory Policy
CRTC 2016-496 (Basic service decision regarding expectations for ISPs), and Telecom
Regulatory Policy CRTC 2017-200 (Wireless code) 2017-200, 2016-496 and 2016-1
● Review other documents cited in the NoC, e.g. two reports from the CCTS (Commission
for Complaints for Telecom-television Services) and Public Opinion Research on the
Wireless Code
● Review relevant sections of the Telecommunications Act
● Review the Commission’s Rules of Practice and Procedure and the associated
guidelines set out in Broadcasting and Telecom Information Bulletin CRTC 2010-959

Step 3: Compile Evidence Base


We outline three scenarios that could apply in compiling evidence in support of an intervention,
and note the specific circumstances that apply with respect to TNC 2018-422. In all of these
scenarios, academics may benefit from the support of research assistants. However, advance
time is needed to find funding for, and hire, research assistants, and it is difficult to involve
research assistants in a project part way through an academic semester (i.e. mid-November),
when potential assistants have already committed to other activities.

Scenario A) We have already done research that can inform this consultation
● In instances where the Commission has given advance public notice of its intended
activities we can plan research projects to provide evidence on upcoming consultations.
In this particular case, there was no indication in either the 2019-2020 CRTC Forecast or
the 2018-2019 Departmental Plan that there would be a consultation to develop an
Internet Code of Conduct.

Scenario B) We make use of existing published data to inform our intervention


● As this consultation requires an understanding of the retail fixed Internet market,
interventions can be informed by the CRTC’s Communications Monitoring Report
(CMR). However, the most recent data is from 2016 (as published in the 2017 CMR).
The CRTC has provided no indication as to when 2017 data on Canada’s retail
broadband sector will be published.
● SamKnows data about broadband Internet performance reflects a limited geographic
range and has not been updated since 2016.
● Data on consumer complaints about Internet services are essential to understanding the
issues to be addressed by an Internet code of conduct. The most recent CCTS data (the
2017-2018 Annual Report) was not published until 27 November, i.e. partway through
the consultation period.
● The CRTC appears to rely upon its interveners to provide evidence from international
jurisdictions. As part of evidence gathering for a consultation like this one, it would be
usual to conduct a search for international comparisons, e.g. Are there Internet codes of

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conduct in other countries? What provisions are in place to address consumer concerns
about fixed Internet service provision? What are best practices regarding the use of
Critical Information Summaries? Such a search takes time.

Scenario C) We conduct new research to inform the specific issues being considered in this
consultation
● Other parties have noted that if time allowed, they would conduct research with
Canadians to explore their perspectives on the proposed Internet code.
● Academics have the expertise to conduct original and independent research that can
provide the Commission with insights from diverse stakeholders in Canada’s
communications system. But to conduct research with human subjects, academics
require approval of our institutions’ Research Ethics Boards. At a very minimum, the time
needed to develop a research ethics protocol application and have it approved by a
Research Ethics Board is 4 - 6 weeks (i.e. 20 – 30 business days). Even if we had been
in a position to submit a research ethics application on the day that this consultation was
announced, we would not have had time to get the research approved by the ethics
board, collect the data, and prepare the findings for use in a policy making process like
this one.

Step 4: Consolidate and review evidence, determine responses to consultation questions and
prepare the written intervention
The synthesis of evidence and development of arguments is time consuming but can only be
done once evidence has been collected as per the scenarios outlined above. Ideally
researchers would dedicate several weeks to completing this step alone.

We have not quantified the total time required to complete the various steps outlined above, but
note that the amount of work needed to prepare a high quality evidence-based intervention for
any consultation is extensive. In the specific context of the current proceeding, to develop the
Internet code of conduct, we note several limitations:

● No advance public notice of this consultation was provided


● Data needed to develop a strong understanding of the current state of Canada’s retail
fixed Internet sector has not been published by the CRTC in a timely manner (i.e. the full
2018 Communications Monitoring Report)
● The latest data on consumer complaints about fixed Internet services, noted in the NoC
as essential to this proceeding, were published part way through the consultation period

As noted in the correspondence from other public interest advocacy groups and individuals
interested in intervening, all of the work necessary to contribute to the record of a CRTC
proceeding must be conducted while also fulfilling other position responsibilities. For academics,
teaching responsibilities (e.g. course preparation, classroom teaching, graduate student
supervision and end of term assessment) simply cannot be set aside to work on unanticipated
regulatory consultations. Other time-sensitive academic responsibilities include administrative
work within our institutions, PhD studies, grant applications, managing other research projects

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and disseminating our findings (via academic and non-academic publications, presentations,
and through participation in CRTC and other consultations, e.g. the ongoing review of Canada’s
broadcasting and telecommunications legislative frameworks).

We use this letter to outline the work needed to provide evidence to a Commission consultation
and to provide insights into why a 40 calendar day/28 business day timeline, unannounced prior
to the publication of the NoC does not provide sufficient time for us to make our initial comments
on TNC 2018-422. (We also note that the observations we make here about the time needed to
prepare quality interventions are germane to other consultation schedules.) While we do not
speak for other parties, we agree with comments already filed by our counterparts from PIAC,
Union des Consommateurs, FPRC and Ageing + Communication + Technology, as well as
Marc Nanni et al., that adherence to the timelines as proposed will exclude the perspectives of
many Canadians, and is not in the public interest.

Signed,

(In alphabetical order)

Mary Cavanagh, University of Ottawa


Ben Klass, Carleton University
Mary Elizabeth Luka, University of Toronto
Fenwick McKelvey, Concordia University
Rob McMahon, University of Alberta
Michael McNally, University of Alberta
Catherine Middleton, Ryerson University
Reza Rajabiun, Ryerson University
Tamara Shepherd, University of Calgary
Dwayne Winseck, Carleton University

Note: We have provided our institutional affiliations but we do not intervene on behalf of our
institutions.

*** END OF DOCUMENT***

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