Institutional links

• Quick Links

  • Today's Releases
  • Decisions, Notices and Orders
  • Public Proceedings

• Resources

  • Glossary

Privacy and Security
Transparency

2.0 The CRTC, policies, and regulation

2.6 Simplifying regulation and dispute resolution

The Commission has a wide range of mechanisms for the effective and efficient regulation of the broadcasting and telecommunications industries. These mechanisms relate to simplifying regulation and resolving disputes.

A) Simplifying regulation

i) Exemptions for broadcasting distribution undertakings

In 2001, the Commission began the process to exempt from licensing requirements and associated regulations those cable broadcasting distribution undertakings (BDUs) that serve small and rural communities, and serve fewer than 6,000 subscribers. As of 2008, virtually all former Class 2 and Class 3 cable BDUs have exempt status.

In Broadcasting Public Notice 2008-100¹⁵⁶, the Commission set out forward-looking policies that will give the broadcasting system added flexibility while retaining the necessary regulations to achieve the objectives of the Broadcasting Act. In reviewing the rules that affect BDUs, such as cable and satellite providers, the Commission decided, among other things, to exempt from its licensing requirements BDUs with fewer than 20,000 subscribers. On 1 April 2009, the Commission issued Broadcasting Notice of Consultation 2009-173¹⁵⁷ seeking comments on a proposed exemption order for terrestrial BDUs serving fewer than 20,000 subscribers.

ii) Streamlining initiatives

Included in the mechanisms for simplifying regulation are various streamlining initiatives tailored to each of broadcasting and telecommunications.

Streamlining initiatives relating to the broadcasting industry include the following:

• an expedited process whereby the Commission informs applicants of the status of their licence amendment applications within 15 business days of receiving an application;
• measures to reduce the average time it takes to deal with amendment applications;
• the exemption of certain network operations from licensing requirements;
• a review of broadcasting application forms;
• a review of the policy concerning the issuance of radio calls for applications in the processing of requests to add foreign third-language services to the Lists of eligible satellite services;
• streamlined certain reporting requirements for Class 1 cable distribution undertakings having 20,000 or more subscribers and for television licensees;
• exemption orders for certain third-language television undertakings from licensing requirements;
• new service standards for applications for licence amendments and licence renewals currently processed by public notice, as well as for applications processed using an administrative approach that does not entail a public process;¹⁵⁸ and
• streamlined procedures for consideration of applications that involve change in ownership and/or control of broadcasting undertakings, amendments or extensions of deadlines, and that do not require a public process.¹⁵⁹

Streamlining initiatives relating to the telecommunications industry include the following:

• expedited processes for retail tariff filings. The Commission recognizes the need for timely disposition of tariff applications by incumbent TSPs for new or amended services. Since 2005, the Commission has streamlined and expedited the processing of retail tariff filings¹⁶⁰ and the processing of applications concerning the withdrawal of services.¹⁶¹
• approval of price ranges within which incumbent TSPs can offer certain services such as local exchange and related services¹⁶² as well as Voice over Internet Protocol (VoIP) related services. This permits the incumbent TSPs to respond to market forces by providing pricing flexibility and eliminating the need for regulatory approval of price changes within the range.
• deemed approval of certain inter-carrier agreements filed pursuant to section 29 of the Telecommunications Act upon filing with the Commission.¹⁶³
• forbearance from regulation of certain retail tariff filings. In view of an increased level of competition in the local market, the Commission has relaxed a number of regulatory rules with regard to retail tariff filings. The Commission forbore from regulating bundles¹⁶⁴ and promotions¹⁶⁵ that met certain criteria. In Telecom Decision 2008-74,¹⁶⁶ the Commission further determined that it would forbear from approving retail tariff filings that met certain criteria, effective 6 October 2008. In that decision, the Commission also further streamlined the approval mechanism for other retail tariff filings.

To deal with local forbearance applications as expeditiously and fairly as possible, the Commission issued Telecom Circular 2007-13,¹⁶⁷ which sets out the timelines for submissions regarding local forbearance applications. In addition, the Commission issued letters to the incumbent and alternative TSPs to notify them of the type of data and level of detail to be provided in local forbearance applications or proceedings.

The Policy Direction requires the Commission to act in a more efficient, informed, and timely manner to achieve the telecommunications policy objectives set out in section 7 of the Telecommunications Act. With greater reliance on market forces, monitoring of the industry will continue to be a valuable tool to assess the extent to which these objectives are being met.

B) Dispute resolution

In Broadcasting and Telecom Information Bulletin 2009-38,¹⁶⁸ the Commission set out, for both broadcasting and telecommunications matters, the procedural steps to be followed and the time limitations that will apply to each of its dispute resolution processes: staff-assisted mediation, final offer arbitration, and expedited hearings.¹⁶⁹ These processes build upon those that the Commission has adopted in the past.¹⁷⁰ An interpretation guide to the revised procedures is provided in Figure 2.6.1.

Commission staff conducting staff assisted mediation will be located in a separate unit and divided by an 'ethical wall' from Commission staff conducting final offer arbitration and expedited hearings. While staff-assisted mediation will continue to be available through the Commission's Broadcasting and Telecom Mediation groups, the Commission has created a distinct division within its Policy Development and Research (PDR) sector to deal with final offer arbitration and expedited hearings.

Disputes that involve one issue - or in exceptional cases, several closely related issues - will lend themselves to the Commission's dispute resolution processes if they meet the following criteria:

• the dispute is bilateral or affects only a small number of parties;
• the parties have been unable to resolve the dispute by alternative methods;
• the dispute is relevant to the regulation and supervision of either the Canadian broadcasting or telecommunications system, primarily to matters of interpretation or application of an existing Commission decision, policy or regulation; and
• the resolution of the dispute does not require a new policy or change to an existing policy.

Disputes for which resolution would effectively establish a new policy or change an existing policy will not be considered suitable for the dispute resolution processes. In addition, those disputes that involve a large number of issues or interested parties will not generally be considered suitable for these processes. In these instances, the Commission will rely on other redress mechanisms for resolving disputes.

Where the Commission is not legally required to be involved, parties may resolve their differences through private third-party mediation or arbitration, bilateral negotiations, or other means without Commission participation. The Commission encourages parties to attempt to exhaust these means to resolve outstanding issues in an efficient and effective manner before applying for the dispute resolution processes described in Broadcasting and Telecom Information Bulletin 2009-38.

a) Staff-assisted mediation

Staff-assisted mediation is the method of dispute resolution in which Commission staff assist parties in dispute to reach a consensual resolution of the issues. Where full resolution cannot be achieved, the objective of Commission staff will be to reduce the number of contentious issues in order to clearly identify those that may require further Commission intervention. In staff-assisted mediation, any resolution is non-binding.

In bilateral disputes, participation in staff-assisted mediation is mandatory for both parties prior to final offer arbitration or an expedited hearing, unless both parties (i) have participated in third-party mediation or (ii) have an agreed-upon statement of facts and request either final offer arbitration or an expedited hearing.

Any party may request staff-assisted mediation by making a written request to Commission staff in confidence. Commission staff will establish whether the particular matter is appropriate for mediation. In the event that it is not, staff will deny the request and may suggest that it be dealt with through a different redress mechanism.

Staff-assisted mediation may be conducted by Commission staff through direct telephone conversations, conference calls, in-person meetings, or a combination of these methods. During mediation, Commission staff will assist parties in arriving at a consensual resolution by facilitating communication and exchanges, and by focusing the parties on the issues at hand. As it is generally in the best interests of the parties to advance in a timely manner towards resolving the dispute or components of the dispute, Commission staff will establish time limitations - as long as mediation continues to progress. Commission staff may extend these time limitations as required. Should it become apparent that mediation is ineffective, Commission staff will end the mediation process.

When a staff-assisted mediation process has been terminated without resolution of all issues, Commission staff may, if all parties agree, issue a Staff Mediation Report identifying outstanding issues. That report, with the consent of all parties, may form part of the record for consideration in final offer arbitration, an expedited hearing, or another Commission proceeding on issues identified in the report.

b) Final offer arbitration

Final offer arbitration is the method of dispute resolution used for disputes that are exclusively monetary, involve only two parties, and meet the criteria outlined above. It may be used when the parties involved have failed to resolve the dispute through staff-assisted mediation or where both parties (i) have participated in third-party mediation or (ii) have an agreed-upon statement of facts and request final offer arbitration. A Commission panel will act as arbitrator and will choose between the final offers put forward by the parties. Final offer arbitration will result in a binding determination.

Either party (i.e. the applicant or the respondent) may request final offer arbitration by filing a written application with the Commission and serving it on the other party. The application must set out the matter(s) for which a determination by the Commission is requested, include a concise statement of the facts and issues, and explain why the application meets the criteria for final offer arbitration.

After the Commission arbitration panel selects one or the other of the offers in its entirety, the Commission will issue its decision. The Commission intends to release final offer arbitration decisions within 55 days of having accepted a request for final offer arbitration, in those cases where parties have met their filing obligations.

c) Expedited hearing

An expedited hearing is the method of dispute resolution used for those disputes that meet the criteria outlined above, provided that the nature of the dispute is not exclusively monetary. It may be used when the parties involved have failed to resolve the dispute through staff-assisted mediation or where both parties (i) have participated in third-party mediation or (ii) have an agreed-upon statement of facts and request an expedited hearing. The Commission will award the relief requested, in whole or in part, if it finds in the applicant's favour. Under this method of dispute resolution, the Commission will establish Commission panels to conduct brief oral hearings.

Where the Commission has accepted an application for an expedited hearing, parties will be required to attend a brief oral hearing, to which they will be required to bring all relevant documentation and knowledgeable personnel. An adverse inference may be drawn from the failure of a party to bring all relevant documentation and knowledgeable personnel to the oral hearing.

The Commission intends to release its expedited hearing decisions within 70 days of having accepted a request for an expedited hearing, in those cases where the parties have met their filing obligations and where no adjournment has been extended in the oral hearing.

Broadcasting

The disputes handled by the broadcasting alternative dispute resolution (ADR) group generally fall into three categories: (1) disputes between broadcasting distributors and programming services relating to the terms of distribution, including wholesale rates; (2) disputes between competing broadcasting distributors over access to buildings and the end-user; and (3) disputes between programmers regarding programming rights and markets served.

Wherever possible, ADR techniques, such as fact-finding meetings, mediation and staff-opinions, are used to attempt to break deadlocks, identify core issues, and assist disputing parties to directly resolve their disputes. As previously indicated, when these techniques are insufficient the Commission may, where appropriate, render determinations on disputes, generally by way of "final-offer" selection (e.g., under sections 12 to 15 of the Broadcasting Distribution Undertaking Regulations (the Regulations) or by way of decisions involving allegations of undue preference or disadvantage (e.g., under section 9 of the Regulations).

a) Review of existing broadcasting practices and procedures

In the context of the BDU and discretionary programming review of the regulatory frameworks proceedings,¹⁷¹ the Commission invited comments on its existing practices with regard to competitive disputes and undue preference. The Commission also sought specific comments on whether parties felt a reversal of onus on undue preference matters would be appropriate.

In Broadcasting Public Notice 2008-100, the Commission determined that a reverse onus provision similar to that set out in the Telecommunications Act would be appropriate with respect to BDUs. A reverse onus provision would specify that a complainant must demonstrate that a preference and/or disadvantage exists, at which point the BDU would then be required to demonstrate that its actions are not undue.

b) Number, type, trends, and time to closure of broadcasting disputes

For the twelve-month fiscal period ending 31 March 2009, the Commission dealt with three outstanding dispute files from the previous fiscal period and opened six new files. There were two dispute files outstanding at the end of the period, which were received in February and March 2009.

During the same period, the Commission resolved two informal dispute interventions received from the previous fiscal year. In addition, the Commission resolved seventeen of the twenty-two informal interventions received.

A trend of note in the report period is the shift back to more informal interventions. These informal files involved major players and, with one exception, featured disputes between programmers and BDUs. The number of formal files was the same as in the previous year.

Telecommunications

The Commission has strongly encouraged TSPs to pursue independent negotiations to resolve any competitive dispute. However, the Commission has successfully used a number of resolution mechanisms to settle a number of competitive disputes that could not be resolved by mutual agreement between the parties.

The telecommunications competitive disputes handled through alternative dispute resolution generally fall into the following categories: (1) access to support structures, (2) billing and collection service, (3) access to multi-dwelling unit buildings, (4) access to municipal rights-of-way, and (5) interconnection issues.

For the twelve-month period ending 31 March 2009, Telecom staff provided assistance to resolve 23 disputes between carriers. These were mainly competitive issues such as access to support structures and municipal rights-of-way, as well as multi-dwelling units, customer transfers between carriers, billing disputes, and competitor quality of service.

Statistical Information - Simplifying regulation and dispute resolution

Table 2.6.1 Number of dispute files received in 2008/2009

	Disputes/mediation	Final Offer Arbitration/Expedite
Broadcasting	31	1
Telecommunications	23	5
Total	54	6

Note: 1 April 2008 to 31 March 2009

Table 2.6.2 Number of broadcasting dispute files received in 2008/2009

	Formal dispute files	Informal interventions
Building access	2	0
Distribution/programming	4	25
Total	6	25

Notes: 1 April 2008 to 31 March 2009

Table 2.6.3 Fiscal year comparisons of the average number of days to resolve

Disputes	2006/07	2007/08
Undue preference	89	106
Final offer	53	68

Notes:    Excludes informal interventions. Files commenced in one year but concluded in another are included in the calculation for the year of closure.  Files can be suspended for various periods of time in order to permit the parties to negotiate. Suspension times are not included in these calculations.

Figure 2.6.1 Interpretation Guide - Practices and procedures for staff-assisted mediation, final offer arbitration, and expedited hearings