Is PIAC throwing cellphone users under the bus?

11 Feb

Cellphone users may be asking themselves: Et tu Brute?

The CRTC kicks off a week of hearings on Monday on the nascent Wireless Code, a set of rules that will govern some of the terms and conditions of cellphone service in Canada.

First up at the hearings on Monday will be the Public Interest Advocacy Centre, which caused something of a stir late last week when news of its siding with Bell Canada got out. The consumer advocacy group and the company have co-signed a submission to the process that states the Canadian Radio-television and Television Commission’s Wireless Code should have ultimate authority in the land, overriding any provincial rules that may in fact be more favourable to customers.

Bell’s support of such a position isn’t surprising - the CRTC wouldn’t even be thinking about imposing cellphone rules if the large carriers hadn’t originally asked it to. The companies were scared out of their wits by the growing trend of provinces enacting their own tough rules, so they asked the federal regulator to get involved - and to hopefully impose a less rigorous code.

PIAC’s agreement with that position and siding with frequent enemy Bell, however, is something of a shock, given that the organization is supposed to be fighting for more consumer rights rather than less.

In section A4 of its working draft, the CRTC brought up the possibility of provincial rules overruling its code. Several commentators, myself included, pointed out that such a clause would go a long way to easing pessimism about the whole exercise being a way for carriers to avoid tough provincial crackdowns through watered-down federal rules.

Bell’s lawyer Michel Bastarache, however, examined the provincial rules and determined that they were unconstitutional, an opinion that PIAC agrees with in its joint letter to the CRTC. “Briefly stated, Mr. Bastarache’s opinion is that because provincial legislation in this area is ultra vires it would be both ‘ineffective and inadvisable’ for the Commission to implement the mechanism embodied by section A4.”

In explaining PIAC’s position, executive director John Lawford told me his group were lawyers first, which is why they agreed with Bell’s findings - that the sorts of rules enacted by provinces such as Quebec and Manitoba were indeed unconstitutional. With wireless services falling under the federal Telecommunications Act, there’s a big legal question as to whether those provinces even had the right to create their respective rules.

PIAC hadn’t voiced that opinion till now, largely because it was pleased that there were any laws - however flawed - in the first place. Their fallibility, however, is on full display in Quebec, he said, where Bell is openly defying them. The company hasn’t yet been called to task because the provincial government knows it doesn’t have a legal leg to stand on.

Lawford believes the CRTC code is the best way to institute some rules - any rules - that the carriers will have to follow right off the bat, especially since they voluntarily submitted to the process in the first place. If provincial rules are allowed to supercede the regulator’s code, the likely result will be years of litigation.

“Are we selling people out? Some might see it that way, but we’re so close to having something meaningful,” he said.

It’s a pragmatic position, but also a timid and disappointing one - not to mention one that big companies have come to rely on. The whole thing is, in a sense, a form of trolling, where companies implicitly threaten long, messy and expensive litigation if they don’t get what they want, so everyone is forced to go along with it because the alternative is considerably less desirable.

Interestingly, the Competition Bureau - which could give Industry Minister Christian Paradis a run for his money for the title of “Invisible Man” when it comes to telecommunications services - has chipped in its two cents on the CRTC’s wireless code. The organization has ironically suggested the CRTC be bolder with its Wireless Code, including limiting the length of cellphone contracts.

As one observer put it, “When the Competition Bureau is pushing for more consumer protections than PIAC, there is a problem.”

Nevertheless, the CRTC’s process is open to public comments for the rest of the week. It may yet turn out that the public is willing to fight for rights that its advocates aren’t willing to.

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Posted by on February 11, 2013 in bell, crtc, telecommunications


2 Responses to Is PIAC throwing cellphone users under the bus?

  1. Marc Venot

    February 11, 2013 at 12:46 am

    It should be written (also) in Blissymbols.

  2. russellmcormond

    February 11, 2013 at 10:01 am

    I have a problem with PIAC’s claims about constitutionality.

    Some of what is being discussed are federal issues relating to the telecommunications service itself, and *may* have jurisdictional issues.

    Some of what is being discussed are simple provincial contract issues, and should be handled more generically in contract law without mentioning a specific sector (telecom). Some of what is being discussed are provincial property law issues (IE: the whole claim a “sale” happens when the new owner isn’t given all keys, having foreign locks unlocked at time of sale, etc).

    For instance, banning falsely labelled devices “sales” where the devices are still locked seems like a purely provincial issue. If the phone company wants to have a lock on the device then they should be forced to retain ownership in a “Rent to own” contractual scenario. What the cellphone companies are doing with locked devices currently is dishonest, and should be clearly illegal under appropriate provincial property and contract law.


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