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TRANSCRIPT OF PROCEEDINGS BEFORE
THE CANADIAN RADIO‑TELEVISION AND
TRANSCRIPTION DES AUDIENCES DEVANT
LE CONSEIL DE LA RADIODIFFUSION
ET DES TÉLÉCOMMUNICATIONS CANADIENNES
SUBJECT / SUJET:
Proceeding to consider the organization and mandate of the
Commissioner for Complaints for Telecommunications Services /
Instance portant sur l'examen de la structure et du mandat
du Commissaire des plaintes relativement aux services
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
November 15, 2007 Le 15 novembre 2007
In order to meet the requirements of the Official Languages
Act, transcripts of proceedings before the Commission will be
bilingual as to their covers, the listing of the CRTC members
and staff attending the public hearings, and the Table of
However, the aforementioned publication is the recorded
verbatim transcript and, as such, is taped and transcribed in
either of the official languages, depending on the language
spoken by the participant at the public hearing.
Afin de rencontrer les exigences de la Loi sur les langues
officielles, les procès‑verbaux pour le Conseil seront
bilingues en ce qui a trait à la page couverture, la liste des
membres et du personnel du CRTC participant à l'audience
publique ainsi que la table des matières.
Toutefois, la publication susmentionnée est un compte rendu
textuel des délibérations et, en tant que tel, est enregistrée
et transcrite dans l'une ou l'autre des deux langues
officielles, compte tenu de la langue utilisée par le
participant à l'audience publique.
Canadian Radio‑television and
Conseil de la radiodiffusion et des
Transcript / Transcription
Proceeding to consider the organization and mandate of the
Commissioner for Complaints for Telecommunications Services /
Instance portant sur l'examen de la structure et du mandat
du Commissaire des plaintes relativement aux services
BEFORE / DEVANT:
Konrad von Finckenstein Chairperson / Président
Len Katz Commissioner / Conseiller
Michel Morin Commissioner / Conseiller
ALSO PRESENT / AUSSI PRÉSENTS:
Chantal Boulet Secretary / Secrétaire
Philippe Kent Staff Team Leader /
Chef d'équipe du personnel
Lori Pope Legal Counsel /
Anthony McIntyre Conseillers juridiques
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
November 15, 2007 Le 15 novembre 2007
- iv -
TABLE DES MATIÈRES / TABLE OF CONTENTS
PAGE / PARA
PRESENTATION BY / PRÉSENTATION PAR:
ARCH Disability Law Centre (by videoconference) 259 / 1292
Primus Telecommunications Canada Inc. 287 / 1415
Questions from Panel (directed to CCTS Members) 307 / 1531
CLOSING STATEMENTS BY / PLAIDOYERS FINAUX PAR
Canadian Cable Systems Alliance Inc. 326 / 1639
Consumers Council of Canada and
the National Anti‑Poverty Organization 332 / 1669
Canadian Internet Policy and
Public Interest Clinic 339 / 1704
CCTS Members 344 / 1728
- v -
EXHIBITS / PIÈCES JUSTIFICATIVES
No. PAGE / PARA
CRTC‑2 four‑page excerpt of the
Telecommunication Industry Ombudsman
2007 Annual Report entitled
"Member Complaint Statistics" 258 / 1288
Gatineau, Quebec / Gatineau, Québec
‑‑‑ Upon resuming on Thursday, November 15, 2007
at 0838 / L'audience reprend le jeudi 15
novembre 2007 à 0838
1284 THE CHAIRPERSON: Madame Boulet, we are finally here. Go ahead.
1285 THE SECRETARY: Thank you, Mr. Chairman. Bonjour, tout le monde.
1286 Before we begin, I just have a few housekeeping matters. Just a reminder that we do have simultaneous translation available and the English interpretation is on channel 7, et l'interprétation française sur le canal 8.
1287 I would like to file or enter into the record a Commission exhibit, CRTC‑2, which is a four‑page excerpt of the Telecommunication Industry Ombudsman 2007 Annual Report entitled "Member Complaint Statistics." It is also available on the web link of the TIO, www.tio.com.
1288 You will recall that this document was referred to by Commissioner Morin yesterday during his questions of the members. The document is also available in printed copies in the examination room.
EXHIBIT NO. CRTC‑2: four‑page excerpt of the Telecommunication Industry Ombudsman 2007 Annual Report entitled "Member Complaint Statistics"
1289 THE SECRETARY: We will now proceed with the video conference presentation of ARCH Disability Law Centre.
1290 Ms Lana Kerzner will appear on behalf of ARCH. She will introduce her colleague, after which, Ms Kerzner, you will have 20 minutes for your presentation.
1291 Ms Kerzner, when you are ready.
PRESENTATION / PRÉSENTATION
1292 MS KERZNER: Thank you.
1293 Mr. Chairman, Commissioners, my name is Lana Kerzner and I am a staff lawyer at ARCH Disability Law Centre.
1294 With me today is Thomas Rajan, who is a law student working with ARCH for this proceeding.
1295 Firstly, I would like to thank the Commission and its staff for taking my family emergency into account and allowing me to make this presentation by video conference.
1296 As ARCH has participated in other proceedings before the Commission, we know that you are aware of our organization and its activities. By way of explanation, for the sake of those at the proceeding who may be unfamiliar with us, ARCH is an Ontario‑based, charitable, not‑for‑profit legal clinic that is dedicated to defending and advancing the equality rights of people with disabilities regardless of the nature of the disability.
1297 The purpose of our submission is to make concrete recommendations to ensure that all aspects of the CCTS, including its procedures and complaints mechanism, are accessible for Canadians with disabilities. Equally important is ensuring that the roles of the CRTC and the CCTS, in addressing complaints and concerns of people with disabilities, are clearly demarcated. Confusion as to where to raise an issue should never be a barrier to doing so.
1298 The Canadian Association of the Deaf, although not able to be present at this consultation, is also a party to this proceeding and has expressed their views in the comments they submitted.
1299 We know that the panel is focusing on certain issues as set out in the Commission's October 17th letter. ARCH is only commenting at this consultation on those issues that have specific and direct relevance to people with disabilities. Other parties to the proceeding, including PIAC and CIPPIC, are addressing these issues from a consumer perspective generally and we defer to them in this regard and endorse their analysis and submissions.
1300 We, of course, add our disability perspective to the discussion.
1301 Over the past, while there have been many significant events with respect to telecommunications regulation in Canada arising out of government intervention, throughout these interventions one thing that is very relevant to ARCH's constituents is the recognition that market forces may not be sufficient to protect the interest of all users in forborne markets, particularly with respect to those referred to as vulnerable customers such as people with disabilities.
1302 This was clearly set out in Decision 2006‑15 relating to forbearance from the regulation of retail local exchange services. When the government varied the decision, it did not interfere with this aspect. Similarly, when it issued its order to the CRTC on implementing the Canadian Telecommunications Policy Objectives, it articulated the continuing need for regulation in some circumstances.
1303 The Commission's role regarding the legislated policy objectives in section 7 of the Act, both economic and social, was not diminished.
1304 I am now going to address the CCTS mandate. The proposed mandate of the CCTS excludes, and I quote from the proposal:
"Services from which the CRTC has not forborne from economic regulation (e.g.... "services for people with disabilities")"
1305 This is a very general phrase and unpacking it will be key to ensuring two essential requirements.
1306 First, people with disabilities are not to be set apart and their individual service complaints need to be dealt with in the same way and by the same agency as those of consumers without disabilities. However, to achieve this, the CCTS must be required to ensure its services are fully accessible, which I will discuss shortly.
1307 Second, in this decision we need to ensure that the regulatory role of the CRTC with respect to its jurisdiction to consider matters of social and economic regulation so as to ensure access to telecommunication services without discrimination is not inadvertently undermined by the CCTS mandate.
1308 This involves making distinctions between individual complaints on the one hand and systemic and/or policy matters on the other. This is never an easy line to draw and likely impossible to do in advance and in its entirety. However, one can create flexibility in the CCTS processes so that matters that turn out to have a systemic and/or policy component related to disability are automatically referred by the CCTS to the CRTC.
1309 At this point in time, we have identified four types of complaints that involve disability and have distinct features, and I am going to review them now.
1310 So the first type involves an ordinary complaint where the CCTS service is inaccessible. Take, for example, a customer who has a billing problem related to the amount of the bill and also has a disability. She is deaf and is unable to deal with the CCTS because no one knows how to use the TTY. This is a problem of administration of the CCTS whereby it has failed to offer services available to all customers, including those with disabilities. The most effective way to solve this is for the CCTS to immediately rectify the problem.
1311 If this fails, and assuming that the CRTC says in its decision that the CCTS services must be accessible to people with disabilities, the customer should be able to bring this issue back to the CRTC for review.
1312 Additionally, complaints about discriminatory service delivery can always be the subject of a complaint at the Canadian Human Rights Commission.
1313 A second type of problem is with inaccessible services on the part of the telecom provider. Take, for example, a customer who is blind and has a billing problem and that the provider has ignored the directions of the CRTC to ensure alternate format billing. The failure to provide alternate format billing is an aspect of billing which is within the proposed CCTS mandate. In our view, this is an individual consumer problem and this individual should be able to use the complaint and settlement services of the CCTS just like any other customer.
1314 The CCTS cannot be permitted to say that because the failure to follow CRTC directions results in discriminatory treatment of the customer that it will automatically be referred out.
1315 Two additional options exist. First, if the settlement fails, then she can also bring her complaint to the CRTC to enforce its own orders. Second, the customer has a separate right to file a human rights complaint.
1316 A decision to pursue a human rights complaint is a decision for the customer to make and should not be up to the telecom provider or the CCTS. Most often, we predict, customers will prefer the fast and settlement‑oriented route of the CCTS. If settlement fails, they may then choose to pursue other remedies.
1317 So we fundamentally disagree with the CCTS proposal that the CCTS have the power to refuse to deal with such a complaint if the Commissioner considers, and I quote from the Procedural Code:
"that it should more properly be before another tribunal"
1318 A customer cannot be denied the right to complain to the CCTS because she might have another avenue of redress for discriminatory services.
1319 Section 7.1(c) of the Procedural Code needs very careful consideration, review and elaboration about when and if its application is appropriate. It should certainly not apply in the context of potential human rights complaints. It is not appropriate to leave such an open‑ended provision intact without more clarification about other contexts in which it may be appropriate. The companies need be asked when they think this provision might be invoked.
1320 A third situation is a repeated failure by the telecom provider to comply with current directives of the CRTC that provide for accessible telecommunication services. Take for example the same telecom provider that has repeatedly ignored the directions of the CRTC to ensure alternate format billings for people who are blind and have low vision. This is a systemic problem that could be initially dealt with at the CCTS, with the hope that the CCTS would convince the offending company to correct its practice.
1321 It is also an example where the ombudsman nature of the CCTS might be used effectively. If settlement is not achieved, there is the obligation to refer to the CRTC the systemic failure of the provider to comply with the CRTC directives. This sort of systemic problem could also be brought directly to the CRTC.
1322 The last scenario that I am going to address are matters of social and/or economic regulation that pertain to accessible telecommunication services for people with disabilities. So, the telecom provider has decided to charge differentially for broadband speed and compression as an illustration. However, in doing so, it may be selectively excluding or sampling parts of the speech spectrum, making it harder for individuals with hearing impairments to understand. Thus, this operational decision by the provider would have a significant impact on its services provided to people with disabilities.
1323 Matters such as this, dealing with quality of transmission and the cost to the consumer with an affected disability would properly be before the CRTC as a matter of economic and social regulation. Likewise, any novel issue, whether it involves the use of new technology that would enhance service to customers with disabilities or other matters that have not yet arisen, should go directly to the CRTC and not to the CCTS.
1324 What is required is a public review of the matter by the agency with the jurisdiction to examine the policy issues involved. This should be done by the CRTC on notice and with input of other interested members of the public.
1325 An essential component relating to the mandate is clarity. All customers, including people with disabilities, need as much clarity as possible about how and when they should raise their telecommunications complaints. The Canadian Association of the Deaf expressed their concerns about confusion in making complaints. They state in their October 1st comments that deaf users should be left in no doubt as to where to take their complaints. Their submission goes on to say that it is likely that many deaf users would not even try to start a complaint faced with such a barrier.
1326 Similarly, with respect to the Australian Telecommunications Industry Ombudsman, the Consumers Telecommunications Network expressed concerns over the confusion of the scope of the TIO. PIAC and CIPPIC too have emphasized the importance of clarity for consumers. Achieving and communicating clarity of the CCTS's mandate is a difficult task in view of the complexities I just described. However, consumers need to be as clear as possible about where to raise complaints.
1327 ARCH, therefore, recommends that the CCTS and CRTC take great efforts to communicate to consumers clearly in plain language, broadly and in various formats the complaints process and mandate of the CCTS and the CRTC.
1328 I am now going to talk about accessibility of the CCTS for persons with disabilities.
1329 Madam Justice Abella in a recent Supreme Court of Canada decision clearly articulated that members of the public who are disabled are members of the public. For the CCTS to effectively accomplish its mandate of resolving complaints from individual and small business retail customers, it must be fully accessible to all Canadians, including Canadians with disabilities.
1330 People with disabilities are a group of Canadians with demonstrated substantial and important telecom concerns. Indeed, in the past 25 years over 30 decisions of the CRTC have dealt with disability issues, including alternate format billing statements, discount for long distance calls using TTCs and accessibility of pay phones for people who have hearing and speech disabilities.
1331 It appears as though there is fundamental agreement that the CCTS should be accessible to people with disabilities, and we are pleased to hear Mr. McKendry's commitment to accessible.
1332 The CCTS proposal states that the CCTS will deal with complaints in an accessible manner, and that TTY access will be provided from the outset. The proposal also states that the CCTS's website and procedures are being developed to promote access to complainants with disabilities. The Procedural Code too states that the Commissioner shall act in a manner that is accessible.
1333 ARCH's review of the CCTS proposal, Procedural Code and website reveal, however, that many aspects of the CCTS are not fully accessible currently to people with disabilities. Our comments today highlight inaccessible features of the current CCTS and include concrete recommendations.
1334 We urge the CRTC, whose duty it is to regulate in accordance with section 15 equality provisions of the Canadian Charter of Rights and Freedoms, not to approve the CCTS's proposal until it has been established that the CCTS will be equally accessible to all Canadians, including Canadians with disabilities. A multi‑faceted approach must be taken to ensure accessibility of the CCTS. This includes an accessible website and complaints process. The CCTS office must be fully accessible and the staff must have the knowledge of, and sensitivity to, disability and accommodation.
1335 Many of the measures that the CCTS must undertake to ensure accessibility are not necessarily costly or difficult. They should be undertaken immediately and not as a belated measure. The need for costly and/or specialized adaptations, additional modifications and after‑the‑fact redesign will thus be presented.
1336 The Australian TIO is a model that we in Canada can look at for guidance. The TIO created a disability action plan which you will find on line. The goal of the plan is, and I quote:
"... to ensure that the policies and practices of the Office of the Telecommunications Ombudsman (TIO) do not discriminate in any way against people with disabilities..."
1337 Essential to creating a CCTS which is accessible to people with disabilities is consulting with disability organizations and people with disabilities and responding to the barriers and needs they identify. The TIO conducted a consultation with representatives from a range of disability organizations, and ARCH has been advised by a communications officer of the TIO that this process was invaluable.
1338 The CCTS proposal states that the founding members consulted widely with telecommunication services stakeholder groups, including consumer interest groups. However, as far as ARCH can determine, there has been no effort by the CCTS founding members to consult with the disability community or the disability organizations that they have communicated with over recent months and years in relation to other CRTC proceedings.
1339 ARCH submits that the CCTS must be required to engage in meaningful and ongoing consultations with people with disabilities and disability organizations. Such consultations recognize that people with disabilities are best able to identify their needs and strategies on how they can be met. These consultations must be undertaken in a manner which is accessible.
1340 ARCH made several concrete suggestions in this regard at paragraph 16 of our October 1st comments. The TIO's consultation highlighted three very important considerations which ARCH believes are important for the CCTS. These are increasing awareness levels among people with disabilities, producing publications in plain English, and offering a range of mediums for making complaints, for example in writing, over the phone or in person.
1341 I will now make some concrete recommendations for amendments to the CCTS proposal. These recommendations should not, however, be seen as an exhaustive list of everything that is required to make the CCTS fully accessible for people with disabilities.
1342 In this regard, ARCH recommends that accessibility audits be undertaken. An accessibility audit is a tool for determining the current level of accessibility for people with disabilities. It examines the physical premise, written materials, website, customer service and policy and processes of an organization. ARCH recommends that accessibility audits be required of the CCTS. One should be done immediately and subsequent audits should be required periodically throughout its existence.
1343 Regarding the method of filing complaints, the CCTS Procedural Code requires that complaints be filed in writing. Complaints can be mailed, faxed or submitted by filling out a complaint form on line. This presents a barrier for people with disabilities who cannot write. It is equally a barrier for those who are illiterate.
1344 As the Canadian Association of the Deaf's October 1st comments state:
"According to the CCTS website, complaints need to be in writing ‑‑ i.e. English or French. Many deaf users have Sign as their primary ‑‑ and sometimes only ‑‑ language, and no provision has been made for them."
1345 If deaf people could submit video clip complaints using sign language, the complaint process would be much more accessible to them.
1346 ARCH recommends that people be able to lodge complaints in person and over the phone in addition to written complaints. These options are available at the TIO, and consumer groups in Australia have articulated the importance of not requiring complaints to be in writing.
1347 With respect to website accessibility, the CCTS proposal states that their website is being developed to provide access to complainants with disabilities. ARCH obtained a website accessibility audit of the CCTS's current website from Assistive Vocational Technology Associates, and their written report is found in Appendix A to these submissions.
1348 The report outlines accessibility errors on the website and makes several recommendations for making it more accessible for people with disabilities.
1349 ARCH recommends that the CCTS website be modified to incorporate the report's recommendations. The website would also be more accessible to deaf people if it had pop‑up video guides available in sign language, as well as spoken English and French. Those responsible for maintaining the website should have training on accessibility and should ensure that the website, on an ongoing basis, complies with the standards for web accessibility for people with disabilities that are widely adopted on an international level.
1350 With respect to accessibility of documentation and information, for the CCTS to be fully accessible, all of their documents and information, including the complaint form, must be available in a range of formats. For example, people who have visual disabilities, this includes brail, large print and plain text for electronic documents. All materials, including text on the website, should also be in plain language. This would make them much more accessible for all members of the public and especially for people who have disabilities that affect their cognition.
1351 TTYs are devices that enable deaf, hard of hearing and hearing people to communicate with each other over the telephone system. To be fully accessible, it is essential that the CCTS has a TTY line. The CCTS refers people to the Bell relay service. However, Bell relay is an inferior method of communication. It infringes on privacy, as it requires an operator to take part in the entire conversation. ARCH thus recommends that a TTY line be installed immediately.
1352 With respect to time limits, the CCTS Procedural Code requires that complaints be made within one year. While the code gives the CCTS discretion to extend the time for taking action, the Commissioner does not have discretion to do so relating to the filing of the complaint. ARCH recommends that the discretion to extend time apply to the filing of complaints as well. Flexibility with respect to time limits must be built into the process to accommodate people with disabilities.
1353 Sometimes a person's disability makes it more difficult to meet tight time limits. For example, individuals with limited mental capacity may not themselves understand their phone bill sufficiently well to know that they have a complaint about it. An error may only be discovered several months later when a friend is assisting them with their finances. It may take them longer to file a complaint because of the time required to read and understand materials relevant to the situation and to obtain assistance from someone else to make the complaint.
1354 Along the same line, section 11.3 of the Procedural Code states that if either the complainant or the TSP member fails to respond to the Commissioner's recommendations within 20 business days, the recommendation shall be deemed to be accepted by that party. ARCH recommends that this section too be amended to allow for exceptions where the delay in responding is relating to a person's disability.
1355 Even if the CCTS is fully accessible and willing to honour disability‑related accommodations, it is equally important that people with disabilities are advised that they can request accommodation and how these requests should be made. Information for the public about the CCTS, including the website, as well as the correspondence to complainants, should let people know that they are entitled to accommodation, explain how a request for accommodation can be made, and give examples of types of accommodation.
1356 So, in summary, ARCH is pleased to hear the CCTS's commitment to accessibility and we are hopeful that it will follow our recommendations as they work towards achieving full accessibility.
1357 Thank you, and I am happy to answer questions.
1358 THE CHAIRPERSON: Thank you very much for your extensive presentation.
1359 You refer to the TIO very much as your model and your inspiration. Do you have a Canadian example? I mean, we have all sorts of ombudsmen in Canada for financial services, for airlines, the various provincially regulated industries have one. Is there one in Canada that you would point Mr. McKendry to as a model for emulation and good ideas?
1360 MS KERZNER: We haven't looked at models in other industries. I know that the Canadian Transportation Agency has an accessibility directorate. I would be more than happy to include details about that in our reply comments, if that would be helpful.
1361 THE CHAIRPERSON: I think it would, because much has been mentioned of the Australian model, but there are certain differences in Australia, least of all, for instance, they are not a bilingual country, et cetera. So, if you have a Canadian example, it is always easier to use it for inspiration and guidance.
1362 Secondly, going through your four points at the outset, can you explain to me, your first one is ordinary complaints for CCTS services, inaccessible. Your bottom line there seems to be that the customer should be able to bring the issue back to the CRTC for review.
1363 Is there anything in the present set up that you see that would deny that?
1364 MS KERZNER: That would deny the customer being able to take it ‑‑
1365 THE CHAIRPERSON: Take something to the CRTC. I am not aware of any provision in the constating documents which basically prevents a person from complaining to the CRTC.
1366 MS KERZNER: No, not that I am aware of. What I was trying to do in these four illustrations is to show that there will be some instances where the CRTC has to retain its jurisdiction to address disability issues and some instances where the CCTS can deal with them, and to say that if it is an individual problem at the CCTS, it may be most expedient to deal with it there before going back to the CRTC.
1367 THE CHAIRPERSON: Your second example deals with a discussion of the Commissioner whether to entertain or not, if it could be done more properly before another tribunal. You mention the human rights issue as an example.
1368 I gather you don't have any problem per se, you just want to make sure that the Commissioner exercises his discretion in a fair manner and appreciates that a quick resolution of the CCTS is something that people with disabilities might want, notwithstanding that they have a legitimate human rights complaint in your example.
1369 MS KERZNER: Our concern is the section which says that the Commissioner can refuse to deal with the complaint if it should be more properly brought to another tribunal or agency. So, our concern is that people who have received telecom services discriminatorily will be denied access to the CCTS and be told that they need to go to the Canadian Human Rights Commission.
1370 So, we just want to make sure that that doesn't happen, and we find that language needs to be fleshed out and, at the moment, to be too vague.
1371 THE CHAIRPERSON: Do you have any specific suggestion how it should be fleshed out because essentially this is a discussion. It is not easy to flesh out a discussion without taking away the discussion.
1372 MS KERZNER: We are wondering if there is necessity for this section all together, if there are other reasons that the CCTS has for including this section. I think that it could just be removed, and I would be interested to know what the purpose of this section is.
1373 THE CHAIRPERSON: Point four, I am not quite sure what you are driving at. You said any novel issue that involves the use of a technology that will enhance service to consumers with disabilities or other matters should go directly to the CRTC and not to the CCTS. Put that in a concrete fashion. What is the problem that you are trying to avoid here that you see might arise?
1374 MS KERZNER: Let's say a new telecom technology is developed and it is being developed in a way that is not accessible for people with disabilities, so it systemically disadvantages all people with disabilities, that is an issue that the CRTC should be dealing with as opposed to the CCTS looking at it in the context of individual complaints.
1375 Because the CRTC still has jurisdiction to deal with regulation in the context of social regulation and disability issues, we are saying that those kinds of systemic issues should really be properly dealt with at the CRTC, where there is some aspect of a telecommunication service that disadvantages or has an impact on all people with disabilities, as opposed to individual complaints.
1376 THE CHAIRPERSON: But surely you are not taking away from your earlier point saying that CCTS should deal with issues because it is much quicker and probably more effective. Assume the situation arises that you posit, and new technology systemically discriminates against people with various disabilities, I would assume you don't want to have the disabled person prevented from taking it to CCTS and maybe do a short‑term fix for his individual situation while, at the same time, going to CRTC to deal with it on a systemic basis.
1377 MS KERZNER: I agree with that approach. It is a dual approach.
1378 THE CHAIRPERSON: Yes, okay. Thank you.
1379 My colleagues, do you have any questions?
1380 Commissioner Katz.
1381 COMMISSIONER KATZ: Thank you, Mr. Chairman.
1382 The one question I have deals with the remedies on accessibility that you have identified here.
1383 Are there any here today that are not being made available by the telecom carriers themselves at this point in time? You have made proposals on website improvements and availability of access.
1384 I would imagine some of these are already available today and perhaps some of them are not.
1385 Can you elaborate on which ones are and are not?
1386 MS KERZNER: Absolutely. The method of filing complaints are not ‑‑ as far as we know, are not available yet. We've been ‑‑ as we understand it, people must complain in writing and, so, there needs to be other modes of accepting complaints, such as orally or by phone.
1387 COMMISSIONER KATZ: But surely if someone is complaining to TELUS, as an example, they will take the call over the phone; will they not?
1388 MS KERZNER: Well, the way it's written now the procedural code requires that complaints to the CCTS be filed in writing.
1389 So, our concern is that for people with disabilities who can't write, they wouldn't be able to file a complaint.
1390 COMMISSIONER KATZ: Right. But before they go ‑‑
1391 MS KERZNER: Is that addressing your concern?
1392 COMMISSIONER KATZ: Let me go back one step. Before they get to the CCTS ‑‑
1393 MS KERZNER: Okay.
1394 COMMISSIONER KATZ: ‑‑ they have to first go to the carrier of their choice, the TSP, and go to them.
1395 MS KERZNER: Right.
1396 COMMISSIONER KATZ: If they don't get resolution there, then they call the CCTS. And my question has to do with how many of these remedies are currently offered by the phone companies, the cable companies, the service providers themselves?
1397 MS KERZNER: I haven't looked at all of the service providers to determine how they deal with complaints before they go to the CCTS and to assess their website and to assess whether or not their individual complaints processes are accessible to people with disabilities.
1398 And I don't believe that they have filed any information on the record relating to that issue either one way or another, so, I can't speak to that.
1399 What I can say is that our detailed review of the CCTS' procedural code and website, as of now, indicates that there are still many measures that need to be taken in order to make the CCTS fully assessable.
1400 And we'd be interested to know what the service providers are doing on their end to ensure that people can bring their complaints in an accessible fashion and I think that's an important thing for them to do as well.
1401 COMMISSIONER KATZ: Okay. Thank you.
1402 THE CHAIRPERSON: Well, thank you very much.
1403 For your information, Commissioner McKendry is here in the room and has been hanging on your every word and he has undertaken to consult with you and other organizations. So, I expect he will follow that soon, that's a consultation which you say have not had taken place will take place in the future.
1404 And presumably at that time you also should take the audit that you have done on his website and walk him through it because I think it is very useful feedback to see what needs to be done to improve that website because, clearly, we want the CCTS the same way as the service provider to be compliant with the various rulings that we have made regarding accessibility.
1405 So, thank you very much for your participation.
1406 MS KERZNER: Thank you. And thank you again for allowing me to do it by video conference.
1407 THE CHAIRPERSON: I'm delighted to do it. It gives us the ability to test our system. And I think, you know, it's no necessity to have people travel all over the country. I mean, that is why we have technology, we should use it to its maximum.
1408 I find this just as useful as whether you are in the room here. I see you, hopefully you can see me. We certainly have no problem communicating and it saves you from leaving the bedside of your father. I think that is a perfect solution.
1409 MS KERZNER: Thank you.
1410 THE CHAIRPERSON: Thank you.
1411 Madam Boulet, what is next?
1412 THE SECRETARY: Thank you, Ms Kerzner.
1413 We'll now proceed with the final presentation which is from Primus Telecommunications Canada Inc. and I would invite Mr. Benjamin Rovet to come to the presentation table.
1414 THE CHAIRPERSON: Good morning.
PRESENTATION / PRÉSENTATION
1415 MR. ROVET: Good morning. Good morning, Mr. Chairman and Commissioners.
1416 My name is Benjamin Rovet. I'm a consultant to Primus Canada and have been working with Primus on this proceeding and I was asked to appear on their behalf today.
1417 Primus Canada has been operating in Canada since 1997. We offer a wide variety of products and services for consumers and small, medium and home offices. Our business products include long distance, local phone service, data and access services, web hosting, hi‑speed Internet and our latest business product, hosted PBX.
1418 For consumers we offer a full range of telecom services including choice of Internet services, top broadband VoIP, local phone service, long distance and wireless services.
1419 We offer consumers the telecommunication services they need on a single bill and at competitive prices.
1420 Although we support in principle the establishment of a telecommunications consumer agency to resolve complaints from consumers and small businesses and were invited to one of the initial formation meetings of the CCTS, Primus decided not to become an initial member and, instead, decided to wait until the Commission rendered its decision regarding the organization and mandate of the CCTS.
1421 Funding formula. As we described in our initial comments, Primus Canada's most significant concern about the proposed composition of the CCTS is the funding mechanism.
1422 The initial members have proposed that in the initial year TSP members will share costs based on their relative shares of total forborne telecommunication service revenues.
1423 In the second and subsequent years, though, TSP members will share costs based on complaint volumes.
1424 We do not support the proposed second stage funding mechanism whereby fees would be based on complaint volumes.
1425 We are of the view that the most equitable funding arrangement would be to base it on the TSP's total telecommunication service revenues, and I will explain later why Primus supports PIAC's proposal to expand the mandate of the CCTS to include non‑forborne telecommunication services.
1426 In our initial comments we explain that a significant number of end customer complaints that we receive with respect to local data and Internet services are, in fact, caused by problems, errors and omissions that originate with our underlying service provider.
1427 For example, we receive complaints from our customers that their hi‑speed Internet service is not working or degraded. After some initial troubleshooting, we may determine that the fault is outside of Primus' control and may lie with our underlying Internet service provider; for example, copper wires may be degraded.
1428 Another example of an area of complaints is local service provisioning orders. For instance, a number of our provisioning failures may be caused by the failure of the ILEC to complete the necessary cut‑over work in the central office either on time or in a complete manner.
1429 In these instances, where it is determined that the source of the problem is the underlying provider, Primus will work with the provider to restore or improve service to our customer.
1430 However, in the event that complaints dealing with service levels or provisioning work their way to the CCTS, we do not believe that it is equitable that such complaints be allocated only to Primus' fee base.
1431 We recognize that a rational for fees to be based on the number of complaints is to provide TSPs with an incentive to provide good service, but this incentive is not applicable in instances with problems involving underlying service providers.
1432 In our comments we provided a few examples of other telecommunications advocate organizations in the U.S. whose funding formula is based on relative share of regulated services.
1433 For instance, in the State of Ohio the Office of the Consumers Council which advocates for residential customers with respect to regulated public utilities, which is a fairly broad group of TSPs in most states, is funded by regulated utilities through the relative share of gross revenues subject to state regulation.
1434 In Canada, basing telecom fees and assessments on revenues is fairly standard. Contribution is based on eligible telecommunications revenues.
1435 It is expected, based on Telecom Decision 2006‑71, that CRTC regulatory fees will also be based on revenues from all TSPs. Assessing fees based on revenues will also add greater certainty for budgeting purposes.
1436 Once the CCTS proposes its budget, it would be fairly easy for a TSP to calculate its approximate fee contribution. It is a fairly simple matter for a TSP to figure out its proportion of telecommunications revenues against the entire industry.
1437 However, it would be much more difficult for a TSP to budget for its CCTS fees if the fees were based on proportion of complaints. A TSP would really have no idea in advance what its proportion of complaints was.
1438 Accordingly, we strongly believe that the funding mechanism should be based on the TSP's relative share of telecommunication service revenues.
1439 In our comments we indicated that we generally supported the proposed complaint process, however, we believe that it should be slightly modified in cases where an underlying service provider is also involved.
1440 During the second stage, where CCTS staff forward the complaint to the TSP, we have proposed that the TSP should have the option to respond to CCTS staff that the matter also involves an underlying provider.
1441 At this point CCTS staff would forward the complaint and the initial response of the TSP with the direct relationship with the customer to the underlying service provider who would have 20 business days to respond.
1442 Thereafter the complaint process would continue as initially proposed; i.e., staff investigation and non‑bonding recommendation, however, it would now involve both the TSP with the direct relationship with the customer and the TSP that is the underlying provider. The remedy could be directed against either TSP or both as appropriate.
1443 Primus believes that it is important that CCTS staff be familiar with how many TSPs rely on the underlying facilities of other carriers and how complex and interdependent that relationship would be.
For instance, three different service providers are involved in the provision of our local telephony service ‑‑ the ILEC, a CLEC who leases the loop and resells service to us, and Primus itself who has the retail relationship with the end customer.
1444 Thus, at times we have little or no control over the source of the complaint. For instance, while we recognize that the issue is sometimes with Primus itself, often for resellers like Primus, service quality issues or provisioning problems originate with our underlying provider.
1445 We believe that our proposed modification to the proposed process is in keeping with the way that telecommunications service often works.
1446 Governance structure and independence: In our comments we refrained from commenting on the issue of governance structure and independence. Initially, we were generally satisfied with the proposed governance structure. However, we have reviewed with interest the concerns of PIAC and others on the issue of independence. We believe that there are a couple of small measures the Commission could take to make the CCTS governance structure more independent.
1447 We support PIAC's call for the removal of this restriction on independent members that they cannot be a member of an industry lobbying group. We believe that independent members should be selected from the best qualified nominees and this should potentially include members of consumers groups, in addition to the consumer groups' direct nominee.
1448 Second, we support PIAC's call for the amendment of section 7.1(b) of the procedural code to allow for the possibility of consumer groups to bring complaints on behalf of consumers.
1449 Primus believes that there may be issues that emerge where it would be appropriate and more effective for a consumer group advocacy organization to pursue a case with the CCTS.
1450 Remedies and mandatory participation: We believe that it is very important that the complaint process and CCTS remedies do not deviate from the TSPs' terms of service and/or applicable customer contract.
1451 For instance, Primus' terms of service requires that billing disputes be brought to Primus' attention within 45 days of the date of the invoice. Otherwise, the customer is deemed to have accepted the invoice.
1452 Likewise, Primus' liability with respect to the provision of service is limited to one month's worth of service. Other TSPs have similar restrictions.
1453 To empower the CCTS to overrule such contractual terms would, in Primus' submission, amount to re‑regulating or, in the case of resellers regulating for the first time, TSPs' terms and conditions of service. We do not believe that this is appropriate.
1454 In effect, the Commission would be delegating its powers under Part III of the Telecommunications Act if the CCTS were to be granted such remedial powers.
1455 We believe that the $1,000 cap on a remedy, subject to any applicable limitation of liability, is appropriate.
1456 Primus believes that all TSPs should join the CCTS. This is what the Governor in Council's order calls for. However, if the CCTS were granted the mandate to overrule TSPs' terms of service it would reconsider its support for joining.
1457 Scope of services: Primus notes that PIAC and others have submitted that the scope of matters to be considered by the CCTS should be expanded to include matters like unfair advertising and telemarketing. We do not support expanding the mandate of the CCTS to consider these issues.
1458 We do not believe that such services are generally telecommunication services even under the expanded meaning under section 23, and these are areas that the Commission has never really regulated before. It would not be appropriate for the CCTS to be empowered to regulate in these areas without legislative direction, in our submission.
1459 We do agree with PIAC, however, that complaints for non‑foreborne telecommunication services should be dealt with by the CCTS. We agree that might be confusing to customers about which agency their complaint should be dealt with.
1460 Further, we note that the Telecom Policy Review Report said that resolving complaints through the Commission is not always very effective, particularly if CRTC and former staff resolution does not work and the consumer is required to launch a more formal proceeding, pursuant to Part VI of the Telecommunications Rules of Procedure.
1461 This concludes Primus' oral presentation.
1462 To sum up, Primus urges the Commission to carefully consider the issue of funding. For TSPs that use underlying service providers like Primus, given that many of the sources of a customer dispute may involve the underlying service provider, we believe that a more equitable funding mechanism would be to base it strictly on proportion of telecommunications revenues.
1463 Thank you, and I would be happy to answer any questions.
1464 THE CHAIRPERSON: Thank you.
1465 If I understand you correctly your biggest problem is the funding. If we accepted a funding formula like you suggest you would join the founding members?
1466 MR. ROVET: That plus depending on what happened with the limitation of liability issue. Those are our two issues that would preclude us from enthusiastically joining.
1467 THE CHAIRPERSON: And the complaints process, it strikes me you want to involve the underlying service provider. It's a little bit like passing the buck, isn't it?
1468 I mean, you are ‑‑ you have the relationship with the customer. The complaint is against you. You have a contractual relationship with the underlying service provider from whom you buy the service. There is also quality of service criteria that the provider has to deal with, et cetera.
1469 Why do you want to involve the Commissioner and the customer in that?
1470 MR. ROVET: Well, I think from our perspective that's really how, practically, a lot of these matters and issues work. And right now what would happen if we get a customer complaint ‑‑ let's say why wasn't our local service turned up ‑‑ we would troubleshoot it, investigate it, and if it turns out it was a problem with the underlying provider, either the CLEC or the ILEC in this case, we would work with that underlying provider and the customer at the same time and sort of expand that complaint resolution until we were able to resolve it. That's how we do it on our own right now.
1471 So we believe that, you know, currently with the CCTS, given that we expect that the underlying providers would be members, it just might make sense for a more effective resolution to have the opportunity to include the two providers, Primus and the other.
1472 THE CHAIRPERSON: Assume we have a situation where the complaint is made and the Commissioner finds you are at fault and then you fix it and you have to pay compensation of $500. Your worry is that you cannot pass those $500 onto the underlying provider if the fault was with you. That's essentially what this is all about, isn't it, and that's why you want to involve the underlying provider?
1473 MR. ROVET: Not so much. I mean, our biggest concern is the fee structure and we don't think it would be fair in those cases to allocate that type of complaint to our ‑‑ like that complaint to our fee structure.
1474 THE CHAIRPERSON: But I am not talking about fee structure here. I am talking about your ‑‑ the complaint process and your request to involve the underlying provider in the dispute.
1475 MR. ROVET: Well, not necessarily. It might be that it is more ‑‑ we were thinking of it more as an effective way to figure out what the problem is and get to the bottom of it. It may be that even though it is the underlying provider that caused the error or omission, because of our contractual relationship with the customer it's really ‑‑ it's our responsibility.
1476 But we just think there may be instances where it would be more appropriate to direct the remedy at the underlying provider; for example, if it was something that was gross negligence or deliberate fault. But at other times it may be even though it wasn't Primus' fault it might be appropriate to still ‑‑ because we have the relationship with that customer to direct the remedy against us.
1477 But we just think in terms of getting to the source of the problem, given that you have these underlying providers that are already members it would be more effective to include all parties in the investigation.
1478 THE CHAIRPERSON: And this contractual liability, you will say it is ‑‑ right now the maximum under your contracts is one month's worth of services? What does that amount to?
1479 MR. ROVET: I mean it depends what the value of the services the customer ordered.
1480 THE CHAIRPERSON: Give me a range.
1481 MR. ROVET: Well, that's difficult. I can undertake to get a more accurate but ‑‑ accurate response ‑‑ but you know, if it's just local service and long distance that might amount to 50 bucks a month. If it's a small business customer ordering multiple services it may be in the range of a couple hundred a month.
1482 So it would be a real range.
1483 THE CHAIRPERSON: Yes, okay.
1484 Commissioner Katz.
1485 COMMISSIONER KATZ: Thank you, Mr. Chairman.
1486 Mr. Rovet, Primus is a very significant service provider in Canada, would you agree?
1487 MR. ROVET: Yes, we are probably the largest reseller in Canada.
1488 COMMISSIONER KATZ: When they enter into relationships with underlying service providers is there not something called a service level agreement that is entered into between Primus and the underlying facilities provider?
1489 MR. ROVET: Generally, I believe, yes, there would be.
1490 COMMISSIONER KATZ: Does it not require certain levels of service, certain levels of guarantees and certain remedies if those guarantees are not met?
1491 MR. ROVET: That occurs, yes. I mean, it would probably vary depending on the provider to how much teeth the service level agreement has.
1492 COMMISSIONER KATZ: To the extent that you are one of the largest providers of resell services, you do have some clout in negotiating some of these things as well. It is a competitive market for underlying services as well.
1493 So one would think that when you get into a negotiation with an underlying provider they would be receptive to recognizing you have alternatives as well and they would treat you as a customer and provide you with whatever remedies if they fall on their side as well.
1494 Why wouldn't you look at that and look at it from the customer perspective to see the customer negotiating with you on a much smaller scale and recognizing that they need a one‑stop shop as well?
1495 MR. ROVET: No, that's ‑‑ that's a good point but we are not ‑‑ like as I said, we are not saying necessarily that ‑‑ you mean in terms of one shop stop ‑‑
1496 COMMISSIONER KATZ: You get the credit back from your underlying service provider, either through whatever remedies that are inherent in your service level agreement.
1497 MR. ROVET: Generally, but not necessarily. Sometimes it's in the ‑‑ it might be in the form of a multitude of complaints and if you have enough to push you over that service level threshold then you might receive a complaint. But if it's a one off, two off it might not get to that level.
1498 I mean, I think there is a wide range of different remedies you would have in the service level agreements.
1499 COMMISSIONER KATZ: Okay. Those are my questions.
1500 CONSEILLER MORIN : Alors, j'aimerais peut‑être...
1501 Vous comprenez le français?
1502 MR. ROVET: Not too great, unfortunately, I am sorry.
1503 COMMISSIONER MORIN: Could you have ‑‑ yes.
1504 MR. ROVET: Okay.
1505 MR. ROVET: Okay.
1506 CONSEILLER MORIN : Alors, vous reconnaissez dans votre document qu'il y a une certaine rationalité...
1507 MR. ROVET: Pardon me, it is not ‑‑
1508 COMMISSIONER MORIN: Is it okay?
1509 MR. ROVET: No, it is not ‑‑
1510 THE CHAIRPERSON: We will get it working.
1511 MR. ROVET: Okay.
1512 CONSEILLER MORIN : O.K. Alors, vous avez reconnu, en page 3, qu'il y a une certaine rationalité en ce qui concerne le budget qui serait basée sur les plaintes des clients, suivant les différentes compagnies.
1513 J'aimerais vous demander la question : Est‑ce qu'on pourrait envisager... parce que ça l'a un certain sens que le budget soit financé suivant les plaintes, que les compagnies qui ont moins de plaintes paient moins, finalement.
1514 Est‑ce que vous pourriez envisager un budget où, dans un premier temps, les compagnies libéraient l'argent pour le budget suivant leur volume d'affaires dans le marché déréglementé?
1515 Alors, si vous avez 20 pour cent du marché déréglementé, vous contribuez 20 pour cent au budget. Mais à la fin de l'année, après que l'année est terminée, ce montant serait corrigé suivant que la compagnie aurait eu plus de plaintes ou moins de plaintes.
1516 Par exemple, la même compagnie pourrait avoir 20 pour cent des plaintes, mais si elle a eu beaucoup plus de plaintes que les autres compagnies, bien, elle pourrait se retrouver... ce serait corrigé à la fin de la période de 12 mois, et elle se retrouverait avec 25 pour cent du budget.
1517 Si, par contre, cette compagnie là a eu moins de plaintes, bien là, elle se retrouverait à être facturée... il y aurait un retour, si vous voulez, elle ne serait facturée que pour 15 pour cent du budget.
1518 Alors, à ce moment là, on concilierait ce que vous dites en page 3, à savoir que c'est une bonne chose de penser que le budget doit être basé selon les plaintes, mais là, on garderait l'incitatif à la fin de l'ensemble de la période.
1519 MR. ROVET: That is an interesting proposal but unfortunately it doesn't really address our issue that we don't want to be responsible for or we don't want our fee base to be based on complaints that are the fault or that originate with our underlying service providers.
1520 So I don't think that proposal would quite get to that and that is why we would still rather that fees be based on total revenues, proportional revenues.
1521 CONSEILLER MORIN : Mais pourquoi, sur la base simplement du... on réconcilierait les deux propositions. On aurait des frais qui seraient basés sur l'ensemble du budget et selon les revenus, mais après, ça serait corrigé plus ou moins par les plaintes qui ont été traitées par l'ombudsman.
1522 MR. ROVET: Yes, but I think under that proposal our fee base could still ‑‑ let's say we were, for argument's sake, 2 percent of the revenues and if we had a higher proportion of complaints, then under your proposal our fees would go up.
1523 And, you know, from a perspective of are these complaints really the fault of Primus, that is one thing but we wouldn't want our fee base to go up based on complaints from our customers when the source of the complaints originate with underlying service providers.
1524 So let's say our fees were scheduled under your proposal to go up to 3‑4 percent, let's say, but most of what is causing that to go up is the result of complaints that stemmed from ‑‑ a lot of complaints that stem from provisioning which we had no control over, then it would still be the same problem why we don't support the funding mechanism as proposed today.
1525 THE CHAIRPERSON: Okay, thank you very much. I think those are all our questions.
1526 Madame Boulet, is this the end of our intervenors?
1527 THE SECRETARY: Yes, this is the last party that was presenting.
1528 Mr. Chairman, I would propose a five‑minute break at this time.
1529 Thank you.
1530 THE CHAIRPERSON: Okay, let's do that.
‑‑‑ Recessed at 0941 / Suspension à 0941
‑‑‑ Resumed at 0948 / Reprise à 0948
QUESTIONS FROM PANEL / QUESTIONS DES CONSEILLERS
1531 THE CHAIRPERSON: Mr. Bibic and company, you have been here patiently yesterday and today and have heard everybody's intervention. A few issues have cropped up which I sort of wanted to put to you directly, and my colleagues, and either give us a response now or in the follow‑up documentation.
1532 One of them is clearly to return to the representation on the board. There were two issues that came up. I mean, they were pretty strong representations that the way you are constating documents or right now they are offside the ‑‑ the Order in Council. The Order in Council only addresses the point of not ‑‑ the independence not being tied to the industry. You have also put in there they are not tied to consumer groups or something like that and to what extent you feel that it's justified under ‑‑ that restriction is justified under the Order in Council.
1533 The second one is that as I pointed out, that the consumer groups, if you stay with your present procedure a sort of fallback option is enlarging it because the consumer groups only having one person there, and we have really very active consumer groups both in Quebec and the rest of Canada but using a different approach and a different ‑‑ might be one question of whether you want to double that and also whether on the ILECs, as you would also make room for SILECs because the SILECs very much made the point that they felt that they were not represented under your formula of three ‑‑ one TELUS, one is Bell, and one other ‑‑ that the other would most likely, if I understand them correctly, would most largely be a large company and that the problems of those SILECs are separate.
1534 And related to that is the whole issue of whether there should be an exception below a certain level and certain sites where they wouldn't have to contribute to the fees.
1535 MR. BIBIC: Mr. Chairman, thank you for those questions.
1536 In large part we have addressed some of your questions in our final argument, so I am just going to give you some of the things we answer with respect to ‑‑
1537 THE CHAIRPERSON: Well, if you have them ‑‑ you don't have to answer it now.
1538 MR. BIBIC: No, I'm quite happy to answer. Actually, I don't ‑‑ in a sense we are foregoing the right to go last ‑‑
1539 THE CHAIRPERSON: Yes.
1540 MR. BIBIC: ‑‑ but I think it would be helpful for everybody to hear our position on this.
1541 So in terms of the independence as I had mentioned yesterday, which was the first issue, the Order in Council clearly contemplates the presence of industry directors on the board and I don't think that's particular controversial.
1542 And as I mentioned, I think specifically to Mr. Morin yesterday, there are a multitude of ways one could create ‑‑ craft a board that is independent. We have done it one way that we feel is effective and simple and the key test is, is it independent from industry and it absolutely is. And in our view that's where the analysis begins and ends.
1543 It's very, very important in our view to recognize that this isn't a policy board or a stakeholder board. It's a corporate governance board.
1544 So we do believe that our model does meet the requirements of the OIC. So that was the first point.
1545 On the other issue of the francophone consumer groups and anglophone consumer groups we met with the membership last night and, recognizing that all directors have a fiduciary duty under corporate law to maintain confidentiality of CCTS affairs and to pursue the best interests of the corporation at all times, we would be comfortable with increasing the number of consumer group representatives from one to two.
1546 And that would result in the four independents being comprised of two individuals being put forward by consumer groups ‑‑ so you could have an anglophone representative and a francophone representative ‑‑ and two individuals who meet the independence requirements currently set out in the bylaws. Those eligibility requirements, as we discussed with you yesterday, Mr. Chairman, would not ‑‑ would not preclude recent government employees from serving as independents.
1547 We do believe, however, that the other cooling off period ‑‑ the cooling off periods we have in the bylaws with respect to other candidates should continue to apply.
1548 With respect to the question as to whether or not it's necessary to adjust board sizes as a result of including an additional consumer group representative, we don't think it's necessary. We think it is better to keep the board at seven.
1549 If we start playing with the numbers to maintain kind of these special voting rights and extraordinary voting rights as a result of increasing the consumer group representatives from one to two, I think you get into boards that are now 11, 12 or 13 members and I think a smaller body will operate better than a larger body.
1550 And in terms of industry reps and the small providers and their concerns, we thought about that as well. It is important to recognize that the three industry directors would be ILEC members, cableco members and other members. So it wouldn't be a Bell, TELUS and other.
1551 And I think the smaller players, whether or not they are resellers or small ILECs or small cablecos ‑‑ CCSA, well, we heard from yesterday ‑‑ I think they could certainly be represented in the other category. In terms of the small ILECs I am not sure.
1552 Craig, would they be in ILEC or other?
1553 MR. McTAGGART: Other.
1554 MR. BIBIC: They would be in other.
1555 You know board seats change, so you know on a rotating basis different representatives could come forward.
1556 In terms of the issues that ‑‑ I think the small players have particular concerns with the cost issues, and we did discuss that as well yesterday. And last night we discussed this with the board membership as well, and we believe that ‑‑ we believe ‑‑ let me just find our specific proposal here, Mr. Chairman.
1557 MR. BIBIC: Okay. So to address those concerns about funding, especially the small ‑‑ the concerns by the small players ‑‑ we believe or we would propose that the bylaws also be modified to make changes to the funding model set out in the membership agreement, subject to the unanimity of the industry directors only.
1558 So we would increase the number of consumer groups ‑‑ consumer group reps, but also to address the concerns of the smaller players. We have a funding model that we believe is highly appropriate despite the comments we heard from Primus, and should there be any request to change the funding model that that should be a matter dealt with by the industry directors only through unanimous vote.
1559 So funding is an issue for the industry to handle. We are on the hook to pay the freight and to carry the freight. We are willing to do that. We are doing it.
1560 But to the extent that there are changes proposed to those, it should be a unanimous vote and then in this way the smaller representatives can be protected making sure that the cableco reps or the telco reps, ILEC reps, don't pass amendments through without hearing their considerations or without their approval.
1561 I think that covered most of the questions you have asked.
1562 THE CHAIRPERSON: It did. Just explain to me one thing which I am not quite sure of, on this cooling‑off period for people who were involved and consumer groups.
1563 The way your process works right now you have a head hunter going and trying to find eligible candidates. Then you have this board of three eminent Canadians trying to select from the list presented by the head hunter, if I understand. And you trust their judgement to make sure that they pick the best independent people who would be appropriate for it.
1564 Why wouldn't you leave it to their judgement to determine whether people are sufficiently independent and cooled off or not, rather than sort of having absolute provision as you have right now? You have this two‑step process of head hunter and then three eminent Canadians selecting, giving them criteria and saying these are supposed to be independent. Why do you need an overlay on top of that and putting in a cooling off period for consumers?
1565 MR. BIBIC: Well, we think the cooling off period is really tied to the criteria of independence and we don't see why ‑‑ you know, we are making this ‑‑ it's a general rule that's applying to everyone except recent government employees. So we are not differentiating amongst different classes of potential independent directors. We are treating consumer group ‑‑ recent or consumer group advocates in exactly the same way as we are proposing to treat recent industry participants as well as, you know, individuals who have worked for companies that derive significant revenue from the telecom industry; Nortel or Mitel, et cetera.
1566 So we are not treating anyone any differently and, as I sit here, I don't see why we would treat one particular stakeholder group any differently than another stakeholder group in that respect.
1567 THE CHAIRPERSON: Okay.
1568 And Commissioner Katz, you had a question?
1569 COMMISSIONER KATZ: I have got one or two questions.
1570 I want to come back to the issue of regulated versus unregulated services. The world is evolving around bundles. Bundles seem to be everywhere; triple play, quadruple play bundles. When customers, consumers, small businesses have a concern about their services and a package that they have bought and that concern gets elevated to CCTS your position right now is if it's a regulated service it's not part of CCTS. It doesn't come to us. It's deflected back to the Commission or somewhere else. If it's foreborne then it is fine.
1571 There is a big grey area in there as well when it comes to installation coming to my house and installing my ISP service or my telephony service or whatever service it is.
1572 Have you folks thought about the implications of the bundle and how complaints and concerns will be addressed in that environment?
1573 MR. McTAGGART: We have thought about that, Commissioner Katz, and the approach that we expect the Commissioner to use is to ‑‑ you know, we have said that we want to make it as easy for complainants to bring a complaint as possible, and in that situation I take your point that the customer might have a complaint about one service but it comes in on a bill for another service that isn't in scope or something like that or there might be a difference between one matter or one service that is in or out of scope.
1574 So we would expect the Commissioner to accept the complaint, forward it to the TSP. Perhaps the TSP would have the opportunity to say the sum and substance of this complaint relates to broadcasting only so we don't think it's in scope.
1575 But I agree, it will often be tough to see the difference and we would expect the Commissioner to accept rather than reject more complaints about bundles and to allow that complaint to go through the system and get the complainant to remedy it.
1576 COMMISSIONER KATZ: Is there something in the code of ethics or whatever that says that if it is a bundle the first premise is you deal with it through the CCTS as opposed to deflecting it?
1577 I mean look at installation as a good example. The truck roll comes in, they install the services. One works, one doesn't work. The telephone service works or doesn't work. The ISP works or doesn't work. Someone says there is interference in the house, there is something going on, the wireless modem is causing interference and the customer has been charged for the installation. He has got a $50 charge on his bill for installation.
1578 And the question is: Is that installation deficient as a result of the regulated service or the unregulated service?
1579 MR. McTAGGART: Right. We take your point, Commissioner. It is a very good one.
1580 No, there isn't a formal allowance for taking in that kind of a complaint but we will take that away and we will find a way to build that into the process. We agree that is the right way to do it.
1581 COMMISSIONER KATZ: Okay.
1582 MR. BIBIC: Commissioner Katz, in your example, for example, if this were to come to Bell Canada or somehow this complaint were escalated up to Regulatory Affairs with a request as to what do we do, do we refuse to handle it, there is no way I would say refuse to handle it. I would say let it be done through the CCTS.
1583 You know, we can sit here and try to account for every single eventuality but there is absolutely no way that I would instruct anyone in Bell not to take that complaint through the CCTS.
1584 COMMISSIONER KATZ: Thank you, Mr. Bibic.
1585 One of the questions ‑‑
1586 INTERIM CCTS COMMISSIONER McKENDRY: Excuse me, Commissioner. Perhaps I could add that ‑‑
1587 COMMISSIONER KATZ: Sure.
1588 INTERIM CCTS COMMISSIONER McKENDRY: ‑‑ in receiving complaints and dealing with consumers, my approach and the approach of the staff is to give the benefit of the doubt to the consumer.
1589 If the consumer believes that there is a complaint that we should deal with and it certainly looks like there is an element of it that might be regulated but there is clearly an element that isn't, we give the benefit of the doubt to the consumer. We accept the complaint, we forward it to the company and we follow up.
1590 COMMISSIONER KATZ: At a minimum, I am a strong supporter of hot transfer services, coming from an industry that had a lot of hot transfers. You heard me mention it yesterday as well in terms of letting the customer get on the line and solving the problem while he is on the line even if it takes two or three transfers between offices, whatever they are.
1591 INTERIM CCTS COMMISSIONER McKENDRY: Our focus is entirely on solving complaints for consumers, solving them as quickly as we can and that is what drives us.
1592 COMMISSIONER KATZ: Mr. Bibic, I want to come back to the issue of board representation as well.
1593 We have heard from Primus now, we have heard from a lot of the resellers, we have heard from other smaller players as well.
1594 In the group right now the way it is constituted of TSPs, there are three seats available. There is a cable, a telephony, an ILEC and another.
1595 I am trying to figure out that other can represent both a reseller constituency like a Primus constituency and a small group constituency like CCSA in one seat.
1596 Because initially, from my perspective, one of the biggest issues is the first couple of years, the start‑up of this thing, when a lot of the issues come out and a lot of the issues are dealt with on a one‑off basis until you have a track record as well.
1597 The question is: How do both those two constituencies get their input into the process when there is only one seat there?
1598 MR. BIBIC: Well, the function of the board is a corporate governance function. It is not a stakeholder board. That is important to keep in mind.
1599 We do believe that this will be a more effective body if there is a smaller board of directors able to ‑‑ when you have a smaller board it is easier to deal with things on a consensual basis and it will be up to the representative of that category to make sure it has the input of the constituency it represents and as a result of that input make decisions or vote in the best interests of the CCTS, taking into account the input that is received.
1600 I don't think it will be any different than having MTS Allstream sitting on the board or representing Bell Canada in that respect. In that function the primary role of that MTS Allstream director will be to act in the best interests of the CCTS when it votes ‑‑ when he or she votes, not it.
1601 COMMISSIONER KATZ: The stakeholder groups for MTS and for Bell Canada and for TELUS are very similar. The stakeholder groups for CCSA and Bell Canada are very different. The stakeholder groups for Primus and Bell Canada are very different as well.
1602 MR. BIBIC: Well fundamentally they will be dealing with the same issues. They will be dealing with issues about voting on the annual report, on the cost structure, et cetera.
1603 The primary concern that I have heard throughout the last day and a bit is with respect to cost and funding matters and I think we have addressed that with the proposal that we just made this morning to have that dealt with on a unanimous basis.
1604 The CCSA's presentation yesterday, I must confess, was extremely confusing because what I heard was a proposal to set a cutoff or a threshold to 50,000 telephone subscribers before that provider be required to join the CCTS.
1605 Interestingly, that would only capture EastLink. So it wouldn't capture anyone else but EastLink. And on top of that I heard that if membership is mandatory they require a seat on the board. So this is a group that will not be forced to join that wants a seat on the board. It makes no sense at all.
1606 Maybe the answer is to put in a threshold. Speaking for myself, I am okay with that. I am not sure 50,000 is the right one. The others can speak for themselves on thresholds.
1607 I think in the local forbearance variation order there is a grace period for small cablecos who enter the telephony business who have less than 20,000 subscribers, I believe. So maybe that is the cutoff.
1608 I am just throwing that out here off the top of my head. We will give it some more thought.
1609 COMMISSIONER KATZ: Thank you, those are my questions.
1610 THE CHAIRPERSON: Just as a follow‑up to what you said, your principal reason for not adding one more consumer and sort of having one ILEC representative among CCSA is that it does havoc to your ratios in terms of special resolutions and extraordinary resolutions?
1611 MR. BIBIC: Yes. Well, we would add an extra consumer group rep, to go from one to two, but if we ‑‑
1612 THE CHAIRPERSON: Right.
1613 MR. BIBIC: To keep the ratios, I think you need to go from four to seven on the independent side and then from three to six, I believe, on the ‑‑ I will do the math ‑‑ on the industry side. So now you are going to 13. We might work with 11 but you are going to that kind of size of board, no less than 11 but I think it is 13. So you are jumping from seven to 11 or 13.
1614 I will do the math and I will have it by the time I come back for final argument but that is the concern.
1615 THE CHAIRPERSON: Okay, thank you.
1616 Commissioner Morin.
1617 CONSEILLER MORIN : Tout à l'heure, avec les gens de Primus Canada, j'ai essayé de récupérer l'idée que le financement soit basé sur le marché déréglementé, le volume d'affaires, un budget en deux étapes.
1618 Est‑ce que ça vous conviendrait, cette proposition là?
1619 M. BIBIC : Je vais demander à monsieur McTaggart de répondre. Je crois que notre proposition est très similaire à ça.
1620 MR. McTAGGART: Commissioner Morin, just to make sure I understand, are you suggesting a hybrid model where a certain amount of the cost would be complaint‑based and a certain amount would be revenue‑based?
1621 COMMISSIONER MORIN: In the first step. In the first step it will be based on the revenues and in the second, at the end of the 12‑month period, it will be corrected by the complaints, the number of complaints.
1622 MR. McTAGGART: Oh! I see. So you pay ‑‑
1623 COMMISSIONER MORIN: So if you have a company which is at first 10 percent of the budget, at the end, if she has a lot of complaints, more than the average, she will pay 15 percent of the budget or if she is under the average, she will pay 10 percent, for example ‑‑ 8 percent, for example.
1624 MR. McTAGGART: That is an interesting proposal and it is certainly something that we would be willing to look into in more detail. I take the point that going on revenues provides a little more certainty about what fees the company is going to have to budget for.
1625 I think we still generally believe in the principle that those who cause costs to the organization should pay in that proportion but your proposal, I think, provides an interesting possibility for incorporating the best of both worlds.
1626 COMMISSIONER MORIN: Because even Primus Canada has recognized that there is some rationale with your proposal, you know.
1627 THE CHAIRPERSON: Maybe you can take it under advisement in your follow‑up because I think they made a good point, as my colleague points out, how do you budget at first and then have a year in adjustment in order for the culprits who caused the complaints to pay you for those who paid the fee unnecessarily getting a credit for the next year or something like that.
1628 MR. BIBIC: We will take a look at it.
1629 THE CHAIRPERSON: Okay. I think those were our questions, Mr. Bibic. So why don't we then go to your final wrap‑up statements.
1630 MR. BIBIC: Sure.
1631 THE CHAIRPERSON: Or, Madame Boulet, I think you have something else planned.
1632 MR. BIBIC: You are going to do it in reverse order, I believe?
1633 THE SECRETARY: That is right, so we will have to call you back.
1634 MR. BIBIC: Okay.
1635 THE SECRETARY: So we will start now with the final closing statements and it is in reverse order, so I would call to the presentation table the Canadian Cable Systems Alliance.
1636 Just for the record, ARCH and Primus have indicated they will not be making closing statements.
1637 I would call the Canadian Cable Systems Alliance, please.
1638 THE SECRETARY: Please go ahead when you are ready.
CLOSING STATEMENTS / PLAIDOYERS FINAUX
1639 MR. EDWARDS: Good morning, Mr. Chairman, Mr. Katz, Monsieur Morin.
1640 Again, I am Chris Edwards from the Canadian Cable Systems Alliance.
1641 I have with me Ms Suzanne Blackwell from Giganomics Consulting and Mr. Harris Boyd from Solaricom.
1642 Very briefly, we just want to address the issues of voluntary versus mandatory participation and the question of exemption from participation in the proposed commission.
1643 Very generally, the Companies have, in our view, designed a process that really is not surprisingly suited to the operations of large players and it comes out of their way of thinking.
1644 It involves fixed internal administration costs for companies that participate, that work very well if you are accustomed to running a complaints staff and sophisticated complaints procedures, does not work so very well for very small companies.
1645 In that regard, I would note that 42 of our member companies of roughly 80 companies, a little more, operate one cable system with less than 2,000 basic cable subscribers. That's the scope of most of the companies we're talking about. The average system size is about 300 subscribers.
1646 And the question for us is: How does a company like that with a very small staff, sometimes limited to less than half a dozen people, a couple of people, how do they absorb the fixed costs associated with participating in an organization like this?
1647 Over the past day we've heard from the consumer groups who are interested in systemic research and reporting functions in the Commission, in extensive communications programs, in higher remedies available to the consumers who access the process.
1648 And the real point for us here is that we really don't know right now what the costs of this are and yet we face a prospect of mandatory participation.
1649 The small companies that we represent have very little tolerance to unknown costs and to the growth of those costs without any control.
1650 In that respect I'd note the Australian model, the TIO, has expanded from about a $2‑million cost base to about 10‑million from its inception to now.
1651 And I'd also, to be clear, make the point that we have not yet been consulted in this process and we really don't expect to be, I don't think. We understand that we represent less than one per cent of the marketplace.
1652 Small cable companies are trying to compete. After forbearance, getting into telephony is already a marginal proposition for a number of the companies we represent. Those that do compete, compete on price and service and the service they provide is locally based facilities based service, they live in their communities, they're not going anywhere, they're accessible to their customers.
1653 And we believe that it is valuable for the consumers to have our members participating in the markets, they do provide an alternative for communication services.
1654 Then to the question of voluntary membership. CCTS for us really is an unknown and high risk proposition, we just don't know what's involved in it.
1655 We suggest that one possible approach to this is that until the Commission is well established and understood, its costs understood, perhaps it should be voluntary until those things are tested and it is understood.
1656 One possibility would be voluntary participation in the Commission for, let's say, an initial phase 1 period, three years, something like that, and then a review of the Commission to see what it is and how participation should work once those things are understood. Then possible mandatory participation in phase 2.
1657 One thing we would certainly do is agree to register CCSA members with the Commission so that the Commission could ‑‑ if it did get spillage of complaints in relation to CCSA members, it would know where to refer those and it would also be able to build a record in relation to complaints that relate to the small cable companies.
1658 With respect to exemption, we note that the consumer groups have said that they would support in principle a concept of an exemption. If membership is to be mandatory, we would ask that there be an exemption and a recognition that a line must be drawn somewhere to recognize the fundamental difference between the very small companies and the larger players.
1659 We recognize that the 50,000 subscriber threshold that we mentioned yesterday is a cause for concern. That's something we'd certainly undertake to review and look at in our supply submission.
1660 And, finally, just on the point of the board membership, I think we recognize that with less than one per cent of the subscriber base, really our proposition for participation ‑‑ for a seat on the board of the organization was really an expression of our concern that our members are subject to costs that they cannot control without any voice in that.
1661 And I don't think there's a realistic expectation that we would, as such a small organization, occupy a seat on that board, that the concern is that our ability to control our own costs and destiny somehow be recognized.
1662 Those are our remarks.
1663 THE CHAIRPERSON: Thank you very much.
1664 Maybe if you have any follow‑up documentation, you could address the suggestion of Mr. Bibic, over 20,000 threshold following the same number that is in the forbearance order because obviously (off microphone) itself to using a parallel approach.
1665 MR. EDWARDS: I'd certainly be pleased to do that.
1666 THE CHAIRPERSON: Madam Boulet.
1667 THE SECRETARY: Thank you, Mr. Chairman.
1668 I would now call the Consumers Council of Canada and the National Anti‑Poverty Organization to come forward, please.
CLOSING STATEMENTS / PLAIDOYERS FINAUX
1669 MR. LAWFORD: Good morning, Mr. Chairman, Vice‑Chairman and Commissioner Morin again.
1670 The Consumer Groups' first wish to address the Commission's concern that the Order‑in‑Council does not provide the Commission with enough authority to ask the companies to widen the scope of their proposed scheme to include such matters as pricing policy, contracts in general, internal policies and procedures and similar matters that, as noted, make up a very large proportion of complaints in, for example, the Australian context.
1671 The authority is there in the wording of the OIC, Mr. Chairman, and it is there in the word "complaints":
"...the TCA shall receive consumer complaints." (As read)
1672 MR. LAWFORD: In short, it is consumers that define what is a consumer complaint. It is defined by what they choose to take the time to complain about regarding their telecom service.
1673 It should be for the companies to demonstrate that it is either not a complaint in relation to telecom services or it is, for some other good reason, not a complaint that the Ombudsman should deal with for some other reason.
1674 For example, given the chance, consumers will complain about unilateral contract changes and that makes it a complaint under the OIC, unless the companies can show good reason why all such complaints should be rejected, they should be accepted and be in scope.
1675 And the problem we have had in the last two days is that there's an evidentiary vacuum in this room and it's easy to overlook consumer complaints because there are none here.
1676 If Mr. McKendry had come and dumped a thousand complaints on your desk, you would see that there is lots of evidence to support this point.
1677 Secondly, the companies are going to say that the unilateral contract changes, for example, in their contract terms should not be overridden by the Ombudsman's powers.
1678 But, interestingly, would they insist on this with regard to arbitration clauses, to take away all of the Ombudsman's jurisdiction and say to the consumer, sorry, you can't go to the CCTS because we have an arbitration clause? Are they going to insist on that, but require the limits of liability?
1679 The problem we have here is that the whole idea of an Ombudsman is to put the strict legal application of contracts and other rules and interests aside in the interest of a fair and equitable resolution, and this is because there is an inherent power imbalance between customers and companies.
1680 Ombudsman schemes recognize this power imbalance and it is exactly by putting aside traditional legal power relations that they can deliver a just result in the circumstances.
1681 Remember, these are generally small disputes with individual customers, so companies hardly need the extreme protection of a standard contract in a small dispute, not some contractual commercial relationship.
1682 Secondly, we address the Commission's obvious concern about allowing the Ombudsman to deal with regulated services.
1683 Bell said in its opening that the CCTS is part of competition and not a substitute for it. If that is so, why have it all; why not just trust wonderful competition and it will deliver all, including adequate dispute resolution.
1684 We submit that Cabinet knew full well that an unregulated market would not deliver it alone and we submit that they also knew that a regulated market was not delivering it either, as the TPRP report made clear. So, they did intend that the Ombudsman would deal with all services regulated or forborne.
1685 We note that, as with the do‑not‑call proceeding, the Commission could seek additional statutory power to confirm this view and to require membership, and we call upon the Commission to ask for it in their decision.
1686 However, we note that most parties also agree that the Commission has a claim, or some claim to jurisdiction in this area under Telecom Act, sections 24 or 32(g) or 40 or a combination.
1687 We'd just like to clarify that from the Consumer Groups' point of view that if legislation can be added after the fact, it may be more appropriate to have a three‑year review period set up rather than the five years we stated yesterday in order to encourage the legislative provision to come along.
1688 Thirdly, we'd like to move to dispel the perception in this proceeding that it is happening at the request of the companies, or at least that the government requested this. This Ombudsman model was proposed originally by Consumer Groups. We wrote the report that the government included in the budget. It was an action item that spurred the TPRP to endorse the idea that later became the companion Order‑in‑Council and then now we find ourselves in this proceeding.
1689 But we are not asking for it for our Consumer Groups, we're asking for it for consumers who are, frankly, at increased risk of situations where their only remedy is to complain, thrust largely without being asked into a forborne environment.
1690 Fourthly, although we realize the Commission has invited the companies to create CCTS, this proceeding should not be about whether CCTS is adequate but what the ideal Ombudsman service, according to the terms of the OIC, should be and one that is fair to consumers.
1691 The companies have an unfair start in creating this body and the Commission should bear that in mind when they approach this problem with a clean slate.
1692 And this leads directly to the idea of how many seats for Consumer Groups. Still has ‑‑ there's still the possibility that you could order seven consumer representatives and zero company representatives and still respect that Order‑in‑Council. We're just asking for an equal number.
1693 Fifth, the companies' proposal is inadequate in any case in that tiny minor tweaks ‑‑ beside tiny minor tweaks in the last two days, it remains industry controlled by the corporate structure and inappropriate control of the Ombudsman's core activities, such as an annual report.
1694 Its scope is so limited that it will exclude nearly 50 per cent of the types of complaints that are typical in a completely comparable jurisdiction where their Ombudsman has been wildly successful for consumers over the last 15 years in Australia.
1695 It places barriers to consumers, even at the stage of filing complaints, such as the requirements to file in writing. Even if a complaint squeaks through and is eventually elevated to a decision, it is limited to $20 or less in most cases.
1696 We are concerned that many companies in all situations, and all companies in many situations will simply ride through a dispute through the resolution phase and achieve the nirvana of paying only $20 for what was threatened to be a $1,000 resolution.
1697 Effectiveness should not be confused with corporate efficiency. The CCTS is efficient for the companies, but is not effective for consumers.
1698 Finally, I would like to clarify a point that was an issue yesterday. If you require mandatory membership, we are not saying that the CLECs and the ILECs have to beat the bushes to find everybody who connects to them. Customers can find these people by complaining, so when the customer complains, under a mandatory scheme, we can identify members or people who should be members and deal with them at that time.
1699 The ombudsman or Bell at that time can then forward to the Commission the names of people who are refusing repeatedly to join or to follow the ombudsman's mandate and they can be dealt with accordingly
1700 I think my time is up, but if you have questions, that is fine; otherwise, thank you very much.
1701 THE CHAIRPERSON: Thank you very much. I think your submission is very clear. We don't have any further questions.
1702 THE SECRETARY: Mr. Chairman, I would now like to indicate the Canadian Broadcast Standards Council has also indicated they will not be doing a closing statement.
1703 I now invite the Canadian Internet Policy and Public Interest Clinic to come forward. Please introduce yourself for the record, and you will have five minutes for your presentation.
CLOSING STATEMENTS / PLAIDOYERS FINAUX
1704 MS LAWSON: Thank you.
1705 It is Philippa Lawson, from the Canadian Internet Policy and Public Interest Clinic.
1706 Mr. Chairman, Commissioners, I am just going to address five points that were made during the initial submissions.
1707 First, Mr. Chairman, you expressed a concern that CIPPIC is proposing a legislative approach here. I just want to clarify that, like the companies Shaw, PIAC and I think everyone else that I have heard from in this proceeding, we are just saying that if this scheme is to be comprehensive in terms of the telecom service providers and if it is to be practically enforceable, the best way to do this is through legislative change, to give you the clear jurisdictional powers and enforcement powers that you need as recommended by the TPRP. It is simply the most efficient way to ensure mandatory participation and compliance, such as was done for the contribution scheme and the do‑not‑call list.
1708 We are not, however, proposing any other legislation, and we think that you can proceed without legislative change, albeit awkwardly and inefficiently.
1709 Secondly, you also expressed concern about interfering with industry's proposal for the scope of matters to be dealt with by the new agency. The Order in Council calls for an agency with a mandate to resolve complaints about telecommunication services. It does not modify the term "complaint." In particular, it does not limit the mandate to complaints about breach of contract, billing, credit management, service delivery and slamming as the CCTS has done.
1710 Rather, it suggests that all complaints about telecom services should be entertained and leaves it to you to approve specific limits on the kinds of matters that the agency can deal with. When setting these limits, you should be guided by the Order in Council's requirement for an effective consumer agency. In our view, the agency will not be effective if a large proportion of legitimate complaints about telecom services are rejected, even though they are totally within the telecom service provider's control to correct, and even though the complainant has no other meaningful recourse.
1711 So, we urge you to consider carefully the proposed restrictions or exclusions from the scope of matters that the agency can deal with and to ensure that all such exclusions are carefully defined and confined.
1712 You have heard a number of reassurances from the companies and the interim Commissioner, in particular, that they are taking cases and issues even though they may not technically be within scope. We submit that you should not rely on the discretion of the Commissioner as is currently the case in this matter. The code needs to be amended to give the Commissioner jurisdiction over all relevant and appropriate matters, and to require that he or she deal with matters that involve bundled services or mixed services, as long as one matter is within scope.
1713 The third point, the companies keep repeating that this new agency should not be a new regulator. Mr. Chairman, no one, including CIPPIC, is proposing to give the new agency regulatory powers. Rather, we are simply noting ways in which the industry model falls short of Cabinet's order for an effective consumer agency that resolves disputes and reports on systemic issues. Investigating, reporting and making recommendations to the regulator on systemic issues does not, Mr. Chairman, constitute regulation.
1714 Fourth point, the companies claim that the Commissioner they have set up is independent. As we have pointed out, and PIAC has also pointed out, this is simply not the case in a number of respects.
1715 First of all, the lack of sufficient consumer representation. There should be at least as many representatives appointed by consumer groups as by industry. Second, the industry veto over the annual report. Third, the industry super veto over changes to the Procedural Code. Finally, the industry control over whether the Commissioner can identify and report on trends or work on industry codes and conduct and standards in the first place. Again, I refer you to section 86 of the by‑laws, which must change.
1716 Finally, Mr. Chairman, lessons from other models, I think it is clear we have the most to learn from the Australian model. It is the same industry, the same issues and very similar, although not identical, regulatory context.
1717 The other Canadian models you have heard about here today generally have very little to do with the issues we are dealing with here, nothing similar to what you are tasked with; different industries, different issues, for the most part voluntary industry initiatives, not ordered by the government. The CBSC, in particular, is a regulated industry. Complainants always have recourse to the CRTC. Therefore, there is no problem with broadcasters opting out.
1718 In contrast here, we are talking about a deregulated industry where complainants generally have no other meaningful recourse.
1719 In conclusion, Mr. Chair, the government and Canadian telecommunications consumers are counting on you to ensure that the new industry‑funded consumer agency is indeed independent and effective. We have pointed out a number of flaws in the industry model and we urge you to correct them.
1720 Thank you.
1721 THE CHAIRPERSON: Thank you very much.
1722 Yesterday in your presentation the one point which I thought you were very convincing on, not that you weren't convincing on others, but one was the point of systemic issues and trends which specifically is referenced in the Order in Council. But as you point out, because of section 36, budget restrictions, et cetera, in your view the Commissioner has limited power or none to pursue.
1723 In follow up, I would appreciate if you would be very specific on what changes you feel would need to be done in order to ensure that the Commissioner has the power that is envisioned in the OIC?
1724 MS LAWSON: We will do that, thank you, Mr. Chairman.
1725 THE CHAIRPERSON: Thank you. If there are no other questions, let's go to the next speaker, Madam Boulet.
1726 THE SECRETARY: Thank you, Mr. Chairman.
1727 I would now invite the Members back to the presentation table for their final closing statement.
CLOSING STATEMENTS / PLAIDOYERS FINAUX
1728 MR. BIBIC: Good morning again, Mr. Chairman.
1729 Just for the sake of the transcript, I am Mirko Bibic, Chief Regulatory Affairs for Bell Canada, and I have with me Bill Abbott of Bell Canada, Dennis Béland of Vidéotron, Craig McTaggart of TELUS and Jennifer Crowe of MTS Allstream.
1730 We are pleased to appear before you again to speak to the main issues that have arisen over the course of this hearing.
1731 We were heartened by the constructive tone of yesterday's session and believe that it is possible to narrow the range of outstanding issues significantly. Before I proceed with the remainder of my written text, I would like to say in response to some of the other final arguments, that comparisons to other bodies in other jurisdictions aren't necessarily instructive here. TIO in Australia is a statutory body. As TSPs, ILECs, CRTC, we can't take jurisdiction out of the air, and nor does the OIC require any party, complainant or TSP to waive its basic legal rights.
1732 As for mandate, we believe we have very good and valid reasons for what was proposed to be put in scope and out of scope and what I think we will do is in our final written argument have an explanation for each of those.
1733 Back to the text that you have before you, Commissioners, as we indicated yesterday, and as I kind of just touched upon, the members are of the view that the OIC defines the scope of the inquiry here, not what might be possible in the context of a legislated body.
1734 The predominant theme in the OIC, of course, is independence. The members believe that the independence of the Commissioner in all matters of complaint resolution has been firmly established over the past day and a half. It is worth repeating that both the TSP members and any of the directors are barred from having any involvement in, or even exposure to, specific complaint resolution matters.
1735 Rather, the focus of those parties who contest the CCTS's independence is on the structure and powers of the board itself. As I mentioned, when you brought us up for further questioning a moment ago, the board is not a policy‑making board or a stakeholder board. It is a corporate governance board.
1736 As I mentioned as well, when we appeared a moment ago, in respect of the board, we would be comfortable with increasing the number of consumer group representatives from one to two, and in the brief time that we had between our appearances this morning, I have double checked that indeed to maintain the relative ratios that we had, we would need to increase the board to 13, seven independents and six industry, and for all the reasons I mentioned earlier, I think that would be a large board and we would prefer the seven, while acknowledging another seat for consumer groups.
1737 Mr. Chairman, you also asked us yesterday to reconsider some of the special and extraordinary voting thresholds built into the by‑laws. We consulted with our broader membership base last night and we offer the following proposals to you this morning.
1738 First, the members are satisfied that they would have sufficient input regarding the statistical content of the annual report if it came before the board for approval by ordinary resolution requiring a simple majority vote. The content of the annual report is clearly specified in the OIC. It is to document the nature, number and resolution of complaints received for each member.
1739 Similarly, the members recognize the view that the Commissioner ought to be able to identify issues or trends within the CCTS's mandate that may warrant further attention by the CRTC or the government without a requirement for a special or extraordinary resolution. The Commissioner could then do so following a simple majority vote of the board.
1740 Regarding the development of related industry codes of conduct and standards, the members have emphasized that for self‑regulation to work, it must truly be self‑regulation. Codes of conduct or standards developed and then imposed on the industry without its support will not succeed. While recognizing that any director should be able to propose that the CCTS undertake the development of a particular code of conduct or standard on issues within the CCTS's mandate, it should require an extraordinary resolution to approve such development and again to approve the end product. But as mentioned, Mr. Chairman, again, we are quite prepared to have any director propose potential codes.
1741 On the issue of funding, we think it is well recognized that the TSP members who must pay for the CCTS entirely should have some say over its budget. We note Mr. Lawford's comment yesterday that the consumer groups do not take issue with that right. You heard how the extraordinary resolution requirement, which could just as well have been unanimity requirement, is based on recognition and that not all classes of TSP members will necessarily have the same perspective on budget matters.
1742 On fees, we also discussed a little bit this morning the members' view that the current fee structure is appropriate subject to reconsidering Commissioner Morin's suggestion. Those who cause complaints, big or small, should pay, and those who cause escalation within the system should pay more.
1743 As I also mentioned this morning, Mr. Chairman, and I won't repeat, we propose that the by‑law be modified to make changes to the funding model set out in the membership agreement subject to unanimity of the industry directors only.
1744 The members also intend to respond fully regarding all issues that have been raised at the hearing and on the record in our November 23rd written reply comments, including some specific issues that came up yesterday and this morning in the course of your questioning of our panel. However, there were a few specific questions to which we would like to respond before we conclude.
1745 Mr. Lawford yesterday asked for an explanation of where the Procedural Code we have proposed reflects that amounts to be refunded or credited to correct overbilling, for example, are not subject to the $1,000 limit on the Commissioner's monetary compensation power. I would refer to section 12.2 of the Procedural Code, which provides that, and I quote:
"For greater certainty, amounts that the Commissioner determines are to be refunded or credited as a result of billing errors shall not constitute monetary compensation within the meaning of section 12.1(c)." (As read)
1746 Which is the remedy section.
1747 In terms of a review period, we endorse the idea of a review of CCTS overseen by the CRTC in three years' time. So it appears that PIAC and the members are in agreement on that point.
1748 Finally, while we reiterate our view that the Commission need not make membership compulsory, we have heard your request, Mr. Chairman, for our views on how you might do it if you decided to. While the members are unanimous that sections 32(g) and 40 probably do not provide the necessary jurisdiction, we are not unanimous regarding section 24. However, you heard representatives of some members indicate for their part that, although inelegant, a condition of service imposed under section 24 on Canadian carriers, combined with a pass through of obligations to resellers, would probably be sufficient. It has been done by the Commission before in other contexts.
1749 We are all of the view that if this approach is adopted, it should be up to the Commission and not the members to enforce, and I believe we have agreement with PIAC on that issue as well.
1750 I think I have an obligation to put forward, Mr. Chairman, that one of our members suggested that another possibility for you would be perhaps to reopen forbearance determinations as it relates only to members who decide not to join, making membership a condition of forbearance. However, this wouldn't cover resellers, and I think the broader view of the group was that the proposal I just mentioned would be preferable to this one, but I do feel an obligation to put it forward since it was suggested to me.
1751 In conclusion, we look forward to moving on to the next stage in the CCTS's evolution when we can constitute the full independent board, including consumer representatives, and we can all continue to work together to ensure the CCTS's success.
1752 Thank you.
1753 THE CHAIRPERSON: Thank you very much. Thank you for those constructive alterations that you suggested.
1754 We look forward to the final comments from everybody, including you, and we will try to deal with it as quickly as possible. As I said at the outset, we are very heartened by the fact that industry got together and set up this model and it works.
1755 Mr. McKendry, since you are here, I think you have done a great job so far, but I would urge you to, as you heard here, have consultation with some groups who feel they need to consult with you, and secondly focus on the issue of the smooth interaction between you and the CRTC and the passing on of complaints.
1756 I am sure you heard Mr. Cohen yesterday, who answered unequivocally that if he gets a complaint that is out of scope, he refers it to the CRTC. He does not see any privacy issue there. Personally, my legal advice is there isn't one, but that is for you to determine obviously. Whatever methodology, let's make sure that the consumer does not suffer, and that if he phones you and it is not in your scope, it gets passed as quickly and as efficiently to us so we can deal with it. I do not want the consumer to be ping‑ponged between you and the CRTC and finding there is no resolution.
1757 We have to find a way that is effective for the consumer. He talks to you, the complaint will be processed by you or by us or whoever. But it has to be addressed.
1758 INTERIM CCTS COMMISSIONER McKENDRY: Thank you, Mr. Chairman. I certainly agree with you that we don't want the consumer to be bounced back and forth between various bodies.
1759 I undertake to look further into the privacy issue and if it turns out that further investigation discloses that we should obtain consent, then we will look into putting a consent mechanism into place that is easy to implement when we are first dealing with the consumer.
1760 With respect to the consultations, I personal want to thank the parties for their valuable input here. We certainly will undertake, as I indicated in my opening remarks, to consult with ARCH and the Canadian Association of the Deaf and any other public interest or consumer group that indicates that they would like to meet with us to talk about these things.
1761 I would also like to thank very much the members for their support since I took on the position of interim Commissioner. We started on July 23rd, and there has been no occasion when the members have not given me all the support I need, whether it is financial support or legal support, they have frankly bent over backwards to make this thing work, and I thank them for that.
1762 THE CHAIRPERSON: One other point I did mean to mention is the accessibility. You can be accessed by telephone. You indicated in your answers, if I understand it, you try to be as accommodating as possible. That, of course, ties directly into the transfer and the hot transfer that Commissioner Katz talked about, et cetera.
1763 Since you are a telephone Commissioner, I think you know that access by telephone has to be one of your priorities.
1764 INTERIM CCTS COMMISSION McKENDRY: I agree, Mr. Chairman. Certainly if any consumer, for any reason, has difficulty communicating with us in writing, we will deal with them on the telephone. There is no question about that, and we will provide translators for people who have difficulty in French or English, and we will provide support for people that have disabilities that need a better way to communicate with us other than in writing.
1765 THE CHAIRPERSON: Thank you. Thank you all for participating. I think it has been a very good hearing.
1766 We have canvassed a lot of issues and hopefully we will come up with a solution that meets everybody's requirements. Thank you.
1767 Madam Boulet.
1768 THE SECRETARY: Thank you, Mr. Chairman.
1769 I would just like to remind everyone that ARCH, the Consumers' Council of Canada, and the National Anti‑Poverty Organization, as well as the members, do have some undertakings which will be provided with their final reply comments that are to be filed and served on all other parties on or before Friday, November 23rd.
1770 This completes the agenda for this consultation.
1771 Thank you, Mr. Chairman.
‑‑‑ Whereupon the hearing concluded at 1045 /
L'audience se termine à 1045
Johanne Morin Beverley Dillabough
Monique Mahoney Barbara Neuberger
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