Telecom Commission Letter addressed to Philippe Gauvin (Bell Canada) and Laith Marouf (Community Media Advocacy Centre)
Ottawa, 22 April 2021
Assistant General Counsel
Community Media Advocacy Centre
Re: Broadcasting and Telecom Notice of Consultation CRTC 2021-69 – Determinations regarding two procedural requests
This letter is in response to two procedural requests filed in the proceeding initiated by Telecom and Broadcast Notice of Consultation 2021-69 (the proceeding) by Bell Canada (Bell) and the Community Media Advocacy Centre (CMAC), respectively. The proceeding calls for comment on the proposed Canadian Radio-television and Telecommunications Commission Accessibility Reporting Regulations, to be made by the Commission under the Accessible Canada Act (ACA).
Bell Canada filed a request, dated 12 March 2021, in which it indicated that it has an unanticipated surplus of funds in its deferral account. It requested approval to re-assign that surplus in order to make available an additional $80,300 to fund public interest participation in the proceeding. The Commission did not receive any responses to Bell’s request.
CMAC filed a request, dated 15 March 2021, in which it argued that there is evidence of systemic and structural discrimination against diverse communities of persons with disabilities and the groups that represent them in the proceeding. It requested that the Commission appoint a member of its staff to outreach to groups advocating for the rights of Indigenous, racialized and/or women living with disabilities, as well as regulated entities that are operated by such persons. CMAC further requested that the Commission delay the deadline for comments in the proceeding until after the requested outreach has been undertaken.
On 22 March, CMAC filed a letter from the Disabled Women’s Network indicating general support for CMAC’s submissions in this proceeding.
Bell Canada Request – Commission’s analysis and decision
Bell’s request is substantially similar to a request approved by the Commission in Telecom and Broadcasting Notice of Consultation 2020-124-2 (TBNOC 2020-124-2). In that notice, the Commission approved Bell’s request to use $125,000 from its deferral account to fund public interest participation in that proceeding, and indicated that any remaining funds could be used for the same purpose in the follow-up proceeding (i.e., the current proceeding), as both deal with regulation-making under the ACA.
The Commission considers that Bell’s proposal is a positive measure that will help to address the lack of a costs mechanism in the ACA comparable to the one available under the Telecommunications Act. Bell’s proposal is ultimately linked to the improvement of accessibility of telecommunications services for persons with disabilities, and, as such, Bell’s proposal fits within the established deferral account framework.
In light of the above, the Commission approves Bell’s request and hereby establishes a process to be used to allocate these funds consistent with that set out in TBNOC 2020-124-2, and which closely resembles the general practices and procedures for telecom costs awards as set out in sections 65 to 70 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules of Procedure) as well as the Guidelines for the Assessment of Costs (the Guidelines), as set out in Telecom Regulatory Policy 2010-963:
- Parties seeking a share of the available funds are to file an application with the Commission within 30 days of the date of this letter, setting out an account of costs incurred and a brief justification of their eligibility. Eligibility will be evaluated according to the criteria set out in section 68 of the Rules of Procedure:
- whether the applicant had, or was the representative of a group or a class of subscribers that had, an interest in the outcome of the proceeding;
- the extent to which the applicant assisted the Commission in developing a better understanding of the matters that were considered; and
- whether the applicant participated in the proceeding in a responsible way.
- All fees and disbursements claimed are to be in accordance with the scale of costs set out in Appendix A to the Guidelines. Applicants are to detail any other financial assistance received relating to their participation in the proceeding, and any such amounts may be deducted from otherwise eligible claims.
- Applicants may be able to recover only a portion of their expenses. If the total amount of all approved claims exceeds the available funds, the Commission intends to pro-rate the funds that are distributed to each eligible applicant by calculating each eligible applicant’s proportionate share of the funds based on the total amount of all approved claims. In all cases, the amount distributed to an applicant will not exceed their actual expenses.
- The Commission will determine the amount that each applicant should receive having regard to the available funds, the number of applicants, the general eligibility criteria, and whether the applicant has explained how the costs claimed were reasonably and necessarily incurred in the circumstances. The Commission will then issue a decision directing Bell to pay the approved amounts to eligible applicants.Footnote1
Community Media Advocacy Centre – Commission’s analysis and decision
In support of its request, CMAC took issue with the mechanism by which parties may seek recovery of their participation costs in the TBNOC 2020-124 proceeding and this proceeding. It also objected to a staff letter issued at the commencement of the proceeding in which Commission staff encouraged parties to the prior TBNOC 2020-124 proceeding to bring the proceeding to the attention of any interested organization, regulated entity, or individual, who may not already have been aware of it. In CMAC’s view, this placed an undue burden on public interest advocacy organizations.
A number of steps have been taken to make funds available for public interest participation and to bring the proceeding to the attention of interested persons. Although the Commission does not have the authority to award costs under the ACA, as discussed above, the Commission approved the use of funds from Bell’s deferral account to fund public interest participation in TBNOC 2020-124 and the proceeding. The Commission notes that multiple applications for public interest funding were received in the TBNOC 2020-124 proceeding and that additional funds will now be available for the current proceeding. Further, a greater number of public interest organizations, including those representing accessibility interests, have filed submissions in the proceeding than in TBNOC 2020-124. The Commission notes that CMAC has filed an intervention and reply on the record of the proceeding.
The implementation of the ACA and related accessibility measures is intended to be an iterative process. The Commission has thus far run two processes focussed on making regulations of a mainly procedural nature. The Commission also indicated in TBNOC 2021-69 that it may develop additional guidance materials after the regulations come into force. There will also be proceedings in the future that deal with substantive accessibility measures that CMAC and others may wish to raise, as opposed to the procedural requirements set out in the regulations. These would afford additional opportunities to seek feedback from interested groups by various methods.
Finally, as required by the ACA, the Commission must make regulations by no later than 10 July 2021. Any extension of the timelines associated with the proceeding would be highly likely to compromise the Commission’s ability to meet this statutory deadline and thereby to establish a crucial initial step in the fulfillment of the mandate set out in the ACA.
In light of the above, the Commission determines that it will maintain the existing timelines for the proceeding and notes that there will be further opportunities for CMAC and other interested groups to participate in the implementation of the ACA and Commission proceedings related to accessibility.
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