The Structural & Political Limitations of Federal Internet Governance

From an administrative perspective, and unlike its counterparts in other jurisdictions, the CRTC operates as an independent public organization under the purview of two federal agencies; Innovation, Science and Economic Development Canada (ISED), and the Heritage Minister. The regulatory frameworks that characterize federal telecommunications oversight in Canada illuminate how structural and political barriers have constrained the CRTC’s ability to diffuse broadband access in Canada, and have allowed incumbent TSPs to exploit regulatory backdoors in challenging unfavourable decisions made by the commission. Though exclusively centralized at the federal level, telecommunications regulation in Canada is nonetheless tensioned by the relatively transparent and public activities of the CRTC on one side, and by the conspicuously opaque and politicized decision making of ISED (formerly Industry Canada) on the other. ISED’s parliamentary privilege (and indirect oversight) over the CRTC is most problematically evidenced via the cabinet appeal process, a circuitous regulatory channel which has allowed TSPs to circumvent the authority of the CRTC by appealing directly to ISED, and whose procedural characteristics have tended to favour submissions from the commercial sector rather than from public/consumer advocates.

Though the CRTC has been criticized for succumbing to political pressure despite its semi-autonomous privilege, the cabinet appeal process itself constitutes a terminal layer of telecommunications oversight that is susceptible to political partisanship, while simultaneously lacking mechanisms for public accessibility or transparency. Indeed, a number of decisions rendered by ISED via the cabinet appeal process illuminates the mediating role of political partisanship at the federal level. During the conservative era between 2006 and 2014, ISED (then Industry Canada) went as far as to “direct” the commission to limit its regulatory activities in pursuing universal service delivery, and adjudicated in favour of appeals brought forward by incumbent TSPs on matters related to their statutory obligations to serve, and on wholesale access to their broadband networks. Conversely, and under the current liberal government, ISED struck down a 2015 appeal brought forward by Bell Canada in response to a CRTC decision allowing wholesale access to its fibre-to-the-premises (FTTP) network. Though tacitly insulated from politicization, and with public interest representation intersecting its core mandate, the regulatory subordination of the CRTC to its federal counterparts exposes the commission to disruptive shifts in the political climate at the federal level. Absent significant statutory revisions to the Telecommunications Act, and despite the best efforts of the CRTC to reconcile the public interest in its activities, any federally centralized efforts to remediate Canada’s digital divide will continue to be susceptible to the shifting contours of federal politics.

Although public interest representation lies at the heart of the CRTC’s regulatory mandate, critics have observed that many of its activities over the last 30 years have often been at odds with politically liberalized framings of public interests; from voice and data deregulation in 1979, to the removal of pricing caps in 2006, and a failure to regulate minimum internet service levels in 2011. The CRTC’s history of relying on market based mechanisms in servicing its public mandate have caused some critics to accuse the commission of absenteeism in curating the public trust, and to frame deregulation and neo-liberalism as conjoined narratives which have left the ideal of the public interest “out in the cold.” While market borne solutions have indeed constituted the primary lattice upon which the CRTC has operated, this itself is not rationale for conflating the activities of the commission with wholesale withdrawal from its public facing mandate. Indeed, some scholars have noted the ongoing consistency with which the CRTC engages in re-regulation of Canada’s telecommunications sector, and that critical reception of its market based mechanisms often forecloses on the economic realities of policymaking. The fundamental problem is not that the CRTC pursues market based solutions themselves, but that those solutions tend to subordinate public interests to the constructive involvement of private and for-profit driven stakeholders. Simply put, public policy on any level is subject to economic considerations, but those economic considerations need not be conflated with for-profit prerogatives. In this context, state regulators like the CRTC can more accurately be scrutinized for failing in their roles as intermediaries who stand between the public and for-profit interests, and for failing to insulate key public interest areas from the uncertainties and tumult of capitalist marketization. Critiquing this failing intersects with a critique of the ways in which the ideal of the public interest is framed in policy narratives.

As a structural limitation, the community level intersections that characterize the role of the internet in supporting the day-to-day needs of Canadians presents a problem of abstraction for policy made at federal levels of governance. Simply put, federal policy is limited in its ability to reconcile those needs, both as a reflection of the degree to which it must normalize outcomes across a broad constituency, and in its susceptibility to dominant politicization. Owing, in part, to the ambiguity of its powers and the diverse interests mediated by the Telecommunications and Broadcasting Acts, the CRTC appears ill positioned to meaningfully redress the digital divide on its own; a state of affairs the commission itself tacitly acknowledges throughout its 2016 decision. This presents an opportunity to tie together research and advocacy across all three primary levels of government in Canada with a view to developing an interjurisdictional broadband framework; one that implicates a range of government stakeholders better situated to remediate the infrastructural, economic, educational, and literacy barriers that characterize Canada’s digital divide.