PIAC supports Data On Tap Inc.’s petition to reverse MVNO Decision
The Public Interest Advocacy Centre (PIAC) today filed a submission to the Governor in Council supporting Data On Tap Inc.’s (DoT) petition to the government to reverse a decision of the Canadian Radio-television and Telecommunications Commission (CRTC) that will prevent more wireless competitors from offering service in Canada
PIAC’s submission supports DoT’s petition to open Canada to true “mobile virtual network operators”, or “MVNOs” which are new cellphone competitors seeking to serve Canadians across Canada.
“The CRTC issued a ‘fake MVNO’ decision to favour only existing cellphone companies and to stop innovative wireless providers like Data on Tap from entering the Canadian market,” stated John Lawford, PIAC’s Executive Director. “But the Rogers-Shaw merger blew up this fiction and showed how fragile the expensive Canadian wireless market is and how far the regulator had to go to prop it up,” he added.
Data On Tap’s application asks the federal Cabinet to overturn the CRTC’s restrictive MVNO definition and to allow true MVNOs, like DoT and many others that could bring Canadians cheaper wireless service now, which the government, recently returned after an election, claimed to support.
PIAC’s submission in support of DoT’s petition is found here and is also posted on the Department of Innovation, Science and Economic’s “Spectrum and Telecommunications – Petitions to the Governor in Council“.
For more information, please contact:
John Lawford (he/him)
Executive Director/General Counsel
Public Interest Advocacy Centre
285 McLeod Street – Suite 200
Ottawa, ON K2P 1A1
613-562-4002 ext 125 [new!]
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Submission of the Public Interest Advocacy Centre (PIAC) to the 2021 Ontario Privacy Consultation
PIAC recently commented on the Ontario Government’s “Public Consultation – Modernizing Privacy in Ontario”. Please find attached three documents:
1) Comments of the Public Interest Advocacy Centre on the above-noted consultation, entitled “Provincial Privacy Reform: A Path to Disorder?”;
2) PIAC’s comments from the 2020 Ontario “Consultations to Strengthen Privacy Protections of Personal Data;” and
3) PIAC’s comments from the Information and Privacy Commissioner of Ontario’s “Strategic Priority Setting Consultation.”
PIAC is strongly opposed to a fragmented privacy regime in which each province adopts their own private sector privacy laws. PIAC has already discussed this position in detail in our submission to the previous Ontario consultation, “Consultations to Strengthen Privacy Protections of Personal Data,” launched on August 13, 2020, and closed on October 15, 2020. For reference, PIAC’s 2020 submission is attached to our submission for this present Consultation. We stand by our position today.
Rather than pressing forward with new provincial legislation, Ontario should focus on strengthening the province’s privacy regime under its existing framework, to better leverage the IPC’s existing mandate to address current weaknesses in key priority areas. There is undoubtedly a great deal of work to be done. PIAC directs the MGCS to, firstly, our October 2020 submission which specifically called for private sector employment privacy reform (which is not done at the federal level and is a lacuna in Ontarians’ privacy protection) and also our attached submission from the IPC’s “Strategic Priority Setting Consultation,” which concluded in January of this year.
PIAC recommends that the Ontario government refrain from taking direction from the reform approach in Bill C-11.
“We Fight for That” Ep. 12 – “SIM-swap Hide and Seek with Randall Baran-Chong”
We explore the Canadian wireless industry’s best-kept secret (with CRTC help): their problem with SIM-swap fraud!
Randall Baran-Chong, Co-Founder of Canadian SIM-swap Victims United (CSSVU) joins PIAC to explain his personal experience with fraudsters switching his cell service to a new SIM-card (twice!) and his advocacy for victims before the CRTC, the Standing Committee on Industry, Science and Technology (INDU), in the media and with politicians. John Lawford, PIAC Executive Director and General Counsel, outlines PIAC’s ongoing regulatory and other efforts to shed light on the issue, despite regulatory headwinds. Even the politicians know that this is a big deal and one that should be fixed in a transparent way, as INDU’s Report on Phone Fraud makes clear – even supporting PIAC’s call for a public hearing of the CRTC into SIM-swap.
At the end of the episode, PIAC’s Tahira Dawood brings us up to date on airline refunds for COVID-19 cancellations. Looks like some Westjet customers may be out of luck.
Canadian SIM-swap Victims United (CSSVU): search Facebook for this group. You will be asked to show you are a victim of fraud.
Randall Baran-Chong’s Brief to INDU Committee:
INDU Committee’s Report on Phone Fraud (see recommendations 12 and 13 re: SIM-swap fraud:
CRTC’s much redacted inquiry into “Fraudulent Wireless Customer Transfers”:
Airlines COVID-19 Refunds – UPDATE
WestJet: Refunds due to COVID-19
Porter Airlines: Claim Your COVID-19 Credit Bonus, or Refund
“We Fight for That” Ep. 11 – “The Internet Affordability Revolution will not be Subsidized with Shelley Robinson”
We interview Shelley Robinson, Executive Director of National Capital Freenet, about how the CRTC’s recent reversal of its decision on wholesale internet rates not only challenges smaller ISPs, but virtually guarantees that affordable service will not be extended to lower income Canadians and certainly not at higher speeds.
PIAC Blog: “Buying Speed, Part 2” – Compared to the UK and Australia, Canadian broadband advertising is still in the Dark Ages
In the last post of this series, we looked at the CRTC’s “Measuring Broadband Canada” report, which we branded as a flawed and limited evaluation of the broadband speeds across Canada. We deemed the report a narrow validation of the speeds available to the subset of consumers who enjoy mid- to high-tier plans within (sub)urban areas. Our deep dive into the report raised serious questions about whether Canadians, especially rural and remote consumers, are actually getting the speeds they pay increasingly higher prices for.
Well for one thing, we pay for the speeds that are advertised to us. But from experience, we all know the Internet speeds we actually experience on our devices vary throughout the day, and don’t necessarily meet the speeds promised to us in our service contracts.
This second installment of our Canadian broadband blog series looks at how other jurisdictions like the UK and Australia have recently overhauled their regulations surrounding how ISPs advertise and sell broadband services, and illustrate the informational gap that Canadian consumers face when shopping for broadband services.
Canada: Bill C-299 – A Faint Hope?
This blog post is particularly timely, as in early June, Conservative MP Dan Mazier tabled Bill C-299, a Private Member’s bill that shines a long overdue spotlight in the House of Commons on the continuing mismatch between what consumers expect and receive when shopping for home Internet services. If passed, the bill would require “Canadian carriers” (which includes only the largest ISPs) to advertise the quality and speed of fixed broadband services and any required ancillary matters of what they sell, all according to criteria specified by the CRTC through public consultations. The Bill then lists several factors which it requires the CRTC to include as part of its eventual methodology, including:
(a) the service quality metrics that are to be measured and how they will be measured, as well as the methodology that is to be used to ensure that those metrics are representative of the different fixed broadband services packages offered in different regions across Canada;
(b) the methodology that is to be used to determine what constitutes typical download and upload speeds for different fixed broadband services packages offered in different regions across Canada;
(c) the periods that are to be considered peak periods;
(d) the types of Canadian carriers, if any, that should be excluded, in whole or in part, from the application of [the advertising rules];
(e) the types of transmission systems in respect of which the information referred to in [the advertising rules] is to be provided; and
(f) the form and manner in which the information referred to in [the advertising rules] is to be provided to the public to ensure that it is easily available, accessible and simple to understand.
While this list is good guidance for the CRTC, it is silly to make only the largest ISPs subject to the rules (we think that all ISPs should be able to follow these rules) and the bill allows 3 years until implementation. This is too long: In the UK, the regulators were able to conduct research and a public consultation in 2016/2017, release findings and guidance in 2017, which took effect 6 months later in 2018.
Canadians contend with an advertising free-for-all when shopping for broadband services
Broadband advertising in Canada presently is subject only to laws of general application under the federal Competition Act, provincial consumer protection laws, and the self-regulatory Code of Advertising Standards. For all industries, the Competition Act generally prohibits false or misleading representations promoting the supply or use of a good or service. The Act also prohibits performance claims that are not based on adequate and proper tests – the onus then, if challenged by the Competition Bureau, is on the person making the claim to show the data from these tests.
How about industry standards? The Advertising Standards Canada is a self-regulating body that administers the industry-created Canadian Code of Advertising Standards, which sets criteria for advertising that is truthful, fair and accurate. However, the ASC claims they have received very few complaints about broadband speed advertising and have only ever found one single violation of their standards in relation to broadband.
Measurement Canada, meanwhile, is an agency with its own Act that says it acts “under its core responsibility of providing ‘fair measures for all’” and typically regulates might appear to be a logical place to regulate broadband, however, despite the fact it regulates measurement of other essential services like gas, this agency has assiduously avoided wading into broadband speed measurement and will be unlikely to reconsider without a new legislative mandate.
None of these laws or codes, therefore, help to set any standard of testing or transparency by which retail broadband ads must adhere. There is nothing about how and when advertised speeds are tested, nor any rules that require ISPs to provide consumers with clear, upfront information about how advertised speeds won’t necessarily be the speeds consumers get, which subsequently bars consumers from remedies when they don’t get those speeds. In this respect, Canada is seriously lagging behind other jurisdictions like the UK, Australia, and Germany, who have all in recent years implemented very clear and specific guidelines for advertising retail broadband services.
In the UK, advertising is primarily regulated through a system of self-regulation, including rules that the ad industry writes and must adhere to. Written by the self-regulatory Committee of Advertising Practice (CAP), one of these codes is called the CAP Code, which regulates non-broadcast advertising, sales promotion, and direct marketing. The Committee itself is administered by the independent Advertising Standards Authority (ASA), which is a self-regulatory trade body that enforces the Advertising Codes written by committees like the CAP. The CAP Code requires that all non-broadcast marketing communications should be legal, decent, honest and truthful; should not cause serious or widespread offence; exploit a consumer’s inexperience; mislead, cause fear or distress; or condone or encourage unsafe practice or violence. According to the CAP Code, all claims must be substantiated before being published or aired, that is, marketers must have evidence to prove claims that consumers would view as objective. Besides the self-regulatory code, advertising is also governed by the Consumer Protection and Unfair Trading Regulations 2008, which dictates that advertisers cannot mislead or harass consumers by including false or deceptive messages, leaving out important information, or using aggressive sales techniques.
While these general rules apply to broadband advertising, the ASA saw the need to impose specific rules in 2018 about advertising residential broadband services. The basis of these specific rules was that, according to the Committees of Advertising Practice, “speed claims should be based on the actual experience of users and therefore marketers should be able to demonstrate that the speeds in their advertising can be achieved by a reasonable proportion of the provider’s customers.” The new 2018 rules came out of a significant consultation process involving major ISPs, Ofcom, and consumer groups. That consultation established, among other principles, the most meaningful metric of advertised speed according to consumers: median peak-time download speed. This means that advertised broadband speeds should represent the average achievable speed for at least 50% of the relevant customer base during the peak period of 8pm to 10 pm. This new benchmark marked a change from the ASA’s previous guidance that advertised speeds can be represented as “up to” a certain speed, measured over a 24-hour period and available to at least 10% of customers.
According to the new guidelines, factors that may affect the consumer’s ability to achieve the advertised speed must also be communicated clearly and prominently in ads. Factors include signal attenuation, congestion/contention, Traffic/network management practices, protocol overheads, users’ distance from the mobile mast, and environmental obstructions between the user and mobile mast (“clutter”). Advertisers must also further qualify the service if a factor may cause a significant proportion of customers to receive a speed so much lower than advertised that it prevents types of online activity that customers might reasonably expect to undertake at the advertised speed.
Regarding point of sale practices, the UK’s communications regulator, Ofcom, revised their Voluntary Codes of Practice on Broadband Speed in 2018. The revised code requires that providers must show a broadband service’s Minimum Guaranteed Access Line Speed (MGALS) at point of sale, rather than upon request as previously required. If the speed received at the customer’s doorstep falls below the MGALS, providers are given 30 days to resolve the problem before the customer must be allowed to exit their contract, penalty-free. The revised code also provides that ISPs must be upfront about what speeds customers can expect during the 8pm to 10pm peak period. Though this code is voluntary and complementary to the ASA advertising guidelines, several major broadband providers in the UK have agreed to support the changes (Virgin Media, Sky Broadband, TalkTalk, and others).
But the question is, did all these new rules make any difference in broadband advertising? Did the ISPs in the UK actually follow these guidelines? Yes, it did, and yes, they did. After these new rules were introduced, nearly every ISP in the UK reduced their advertised broadband speeds. Across all packages up to 100 Mbps, advertised speeds from the 12 biggest providers in the UK dropped by 15%. One company, TalkTalk, completely eliminated speed claims from their advertising. Advertised speeds of the cheapest deals dropped by up to 41%. Reflecting the shift to averaged speed claims, Sky Broadband changed their marketing for a service from “up to 17 Mb” to an “average 10Mb download speed.” BT Superfast Fibre Unlimited went from “up to 52Mb” to “average 50Mb download speed, and TalkTalk went from “up to 76Mb” to “average 63Mb download speed.”
In 2020, Virgin Media formally brought a challenge to the ASA against a BT Broadband ad for FTTP broadband service. The ad in question claimed that BT’s FTTP product in Bristol would provide more reliable speeds than Virgin’s services in the same area. Virgin argued that BT’s claims were not representative of the target audience and area, pointing to the 2018 guidelines which state that campaigns targeting specific areas should use data from tests carried out in that area. The ASA agreed, finding that although recent Ofcom studies showed that nationally, BT’s fibre speeds were indeed more reliable than those of Virgin’s services at the time, the local ad was misleading because it did not qualify that the claim was based on national data. This ruling was a prime example of how specific rules on broadband advertising help ISPs keep each other accountable while competing for customers. If ISPs wanted to splash their ads with lofty claims and comparisons, then the only way to do so is to actually back those claims with evidence, or to improve their services if they cannot. In the end, consumers win.
In Australia, advertising practices are governed by the Australian Consumer Law (ACL), which was introduced in 2011 and is contained in the Competition and Consumer Act 2010. The ACL prohibits misleading or deceptive conduct, false or misleading representations in the form of consumer guarantees, the nature of goods and services, and bait advertising, etc. The Australian Competition and Consumer Commission (ACCC) and each state/territory’s consumer protection agency administers the ACL. The ACL provides for guarantees that the provision of services, including broadband services, will be with due care and skill, are fit for the purpose and are provided within a reasonable time.
In 2017, the ACCC published its first guide for retail service providers on how to advertise speeds for fixed-line broadband services. The guide sets out 6 key principles that apply to broadband speed and performance ads. In summary, these principles provide that broadband consumers should have accurate information about the typical speeds that a customer can expect to receive during the busy period of 7 pm to 11 pm, and that service providers have systems in place to diagnose and resolve speed issues. Additionally, factors potentially affecting performance, and uses that trigger traffic throttling should be accurately and prominently disclosed at point of sale and throughout the contract.
And the ACCC has not rested on its laurels. In 2020, the ACCC initiated another consultation on proposed improvements to its 2017 guide, in light of the greater prevalence of high-speed plans offering over 100 Mbps in download speeds. The improvements, implemented on October 29, 2020, caution advertisers against creating unrealistic expectations based on ads flaunting “burst speeds” that are available only for short periods of time, and to avoid broad marketing campaigns where high-tier speeds are not necessarily available to certain geographical markets. Another addition to the guide was to limit providers to using the lowest end of speed ranges if providers rely on wholesale specifications for off-peak speed information. Recognizing that higher speeds are attractive to online gamers, the ACCC also added that services advertised as suitable for online gaming should be able to deliver a high quality, low-latency gaming experience.
But again…Did all of this work? Again…yes, it did. After the 2017 guide was published by the ACCC, eight ISPs in Australia came forward in late 2017 and early 2018 with court-enforceable undertakings admitting they likely misled consumers about broadband speeds, and offered to compensate customers. For example, Telstra offered to remedy 42 000 customers for promoting NBN plans with specified max speeds that were actually not achievable in real-world conditions. Telstra admitted that it likely contravened the ACL by engaging in misleading/deceptive conduct, and making false/misleading representations. In its undertaking to the ACCC, Telstra detailed options for affected customers: refunds, changing plans, or exiting the contract without fee. Both UK and Australian experiences show that if regulators take a firm stance on proper advertising requirements, the ISPs will fall in line. Having specific rules in place empowers regulators to actually regulate ISPs. Case in point: The ACCC recently took two ISPs to court for making false claims about the speeds that customers could receive. The court ordered the two ISPs, Dodo and iPrimus, to pay a combined $2.5 million penalty for making the misleading claims, which were based on flawed measurement methodology that used only the fastest observed speeds, ignoring the slower speeds that many customers experienced
In 2017, the German broadband regulator Bundesnetzagentur changed broadband advertising rules so that ISPs can only advertise three metrics: minimum, normal, and maximum speeds. Under the new German framework, ISPs must ensure customers’ speed never falls below the minimum speed, the normal speed is available 90% of the time, and that customers get 90% of the maximum broadband speed at least once. Additionally, if ISPs in Germany fail for over 48h to deliver the speeds they’ve sold to a customer, the customer is free to switch to another ISP penalty-free.
Evidently, the regulators in other jurisdictions have woken up to the questionable advertising practices of their broadband service providers, and are proactively on the side of the consumers. In comparison, Canada’s regulatory silence speaks volumes about the lack of will from our regulators.
Through it seems difficult to imagine Canada’s ISPs voluntarily fessing up and remedying their past conduct like the ISPs did in Australia, if advertised speeds going forward are at least more accurate to the average experienced speeds, consumers can make more informed and economically relevant choices about their internet services. Currently, there are no real consequences for ISPs in Canada that fail to deliver on their advertised speeds, especially when no ISP is beholden to a standard for setting representative speeds in ads for broadband services.
A comparison of current ads shows that the proof is in the pudding
The informational gap in Canadian ads is best illustrated by comparing the advertised plans of two of Canada’s major ISPs (Bell and Rogers) with those of the top ISPs in the UK (BT and Sky Broadband) and Australia (Tangerine and Telstra). The ads from the latter two jurisdictions, as seen below, also demonstrate how ISPs have closely followed the new broadband advertising rules.
In the UK, both BT and Sky Broadband provide a guaranteed minimum average speed and range of estimated download speeds based on peak-time measurements, as required by Ofcom’s Voluntary Codes of Practice on Broadband Speeds (See Figures 1 – 4). In addition, both UK providers’ guarantee that a customer can sever their contract penalty-free if the customer’s speed falls below the minimum guaranteed speed and cannot be resolved within 30 days. All of this information is visible either on the face of the advertisement, or within a pop-up window that appears when a customer clicks on a link within the ad.
In Australia, even more information is provided to the consumer within the ad itself and in detailed fact sheets linked in the ad. The top broadband providers in Australia advertise their plans in terms of typical busy period speeds, and repeatedly indicate that these speeds may vary based on various factors. This information is ubiquitous and upfront on the websites – it is not hiding in footnotes, nor is it squirreled away further in the purchasing process (See Figures 5 – 11, below). For any remotely diligent customer viewing the available service plans, this information is very hard to miss.
Comparing the information provided in Canadian ads with those of the UK or Australia, it becomes apparent that we Canadian consumers are practically in the dark about the broadband services we buy. Where ISPs in the UK and Australia provide for guaranteed minimum average speeds and ranges based on measured peak period speeds, major Canadian ISPs still primarily advertise their services as “up to” a certain speed, or a range that is not openly substantiated by any measurement method (See Figures 12 – 13). Information about factors affecting download speeds is not presented up front, but rather in a footnote at the very bottom of the webpage, after scrolling past all package listings. Unlike the UK and Australia, there are no laws or codes that require Canadian ISPs to abide by specific standards for broadband ads, and therefore ISPs have no obligation to provide more than the bare minimum of information that is just enough for consumers to differentiate between plans.
Consumers need and deserve more accurate, practical information about their service speeds before they buy into a plan, not an aspirational speed that consumers realize after the fact is unachievable most of the time. Canadian ISPs have thus far escaped, by avoiding accurate speed guarantees, any obligation to allow consumers to exit or switch plans when speed issues persist. In effect, consumers cannot escape their contracts – not without tedious, escalating negotiations and major penalties – even when they realize they are not getting the speeds they paid for. The only other option is for consumers to submit complaints to the Commission for Complaints for Telecom-Television Services (CCTS) or the Competition Bureau, which does not guarantee a favourable resolution, and may take months to resolve. The advice the CRTC themselves gives to consumers is to simply switch providers (pointless where there is no competition), ring up customer service (with frustrating escalations up to a ‘manager’), or to contact the CCTS – a largely unhelpful set of suggestions compared to the remedies that the UK and Australian regulators have implemented. It is long overdue for Canadian regulators to impose standardized guidelines for retail broadband advertising in Canada.
In the last part of this blog series, we will discuss just how this can be done, including the question of whether we should advertise broadband services by speed in the first place. Meanwhile, please compare the broadband speed advertisements in the profiled countries versus those of Canadian ISPs (all ads accessed on 20 July 2021):
UK: BT (plans available in central London, postcode W2 2SZ)
Figure 1. The UK provider, BT, advertises their plans based on a guaranteed minimum speed and a range of typical download speeds. Clicking on “What these speed estimates mean for you” shows a window that details BT’s minimum speed policy. Though BT does not describe their broadband speed measurement methodology, they have indicated commitment to providing peak time speeds, by reference to their signing onto Ofcom’s Voluntary Codes of Practice on Broadband Speeds.
UK: Sky Broadband (plans available in central London, postcode W2 2SZ)
Figure 2. For the popular “Superfast” plan offered by UK’s Sky Broadband, the ad guarantees a minimum download speed, and describes a range of estimated download and upload speeds.
Figure 3. Clicking on the information icon beside “minimum guaranteed download” on BT’s plan ad (as seen in Figure 2) provides more information about the minimum speed policy, including eligibility for contract termination if speed issues are not resolved within 30 days. The info box also details how Sky Broadband calculates the advertised download and upload speeds.
Figure 4. The information box shown in Figure 3 also further details the factors that potentially influence the customer’s speeds, and how Sky Broadband monitors broadband speeds.
Australia: Tangerine Telecom
Figure 5. The advertised National Broadband Network plans offered by Tangerine Telecom in Australia describes the “Typical Evening Speed” expected between 7pm and 11pm. The mouse-over text also lists factors that may affect this speed. Customers can also access further details by clicking on the “Critical Information Summary” and “NBN Key Fact Sheet” links, described in Figures 6 and 7 below. (https://www.tangerinetelecom.com.au/nbn/nbn-broadband)
Figure 6. The “Critical Information Summary” provides extensive details about each plan, including additional account fees, late payment and cancellation policies, and a disclaimer that the advertised speed refers to the speed to the installed technology at the customer’s premises, not necessarily the download/upload speeds achieved in practice. As seen above (in a section taken from the summary sheet), the Summary also describes factors that may limit the customer’s received speeds. Tangerine also explicitly provides that if a customer cannot achieve the typical speeds for their plan, Tangerine will move them to a lower tier and refund any money paid for the higher tier plan.
Figure 7. The “NBN Key Fact Sheet” compares speed and suitable uses between the service tiers offered by Tangerine. The Fact Sheet also details the factors that can affect Internet speed.
Figure 8. Telstra’s plans for broadband Internet, like Tangerine, describes the typical download and upload speeds between 7pm and 11pm, as well as the factors that may lower the experienced speeds. Where typical speeds are not available for FTTN connections, Telstra provides that speeds will be confirmed post-connection. (https://www.telstra.com.au/internet/plans#plans)
Figure 9. Clicking on “More on nbn speeds” within each Telstra plan pulls up a window providing more details on the typical peak speeds and suitable uses specific to the plan.
Figure 10. The Telstra website also includes a detailed info page about the factors that may impact the customer’s speeds, including the quality and location of the modem, as well as the condition of the customer’s in-premises wiring. (https://www.telstra.com.au/internet/nbn/nbn-speeds-explained)
Figure 11. Clicking on the “nbn speeds key facts sheet” link under each plan presents a detailed chart that compares Telstra’s broadband speed tiers and suitable uses depending on the number of people online at the same time.
Canada: Rogers Communications
Figure 12. In Rogers’ “Ignite Internet 50u” plan offering, the advertised download speed is “up to 50 Mbps.” Footnotes qualifying this speed can be found by clicking on “See Full Details” at the very bottom of the page. The 50 Mbps download speed is qualified with: “[a]ssuming optimal network, equipment and customer device conditions”.
Canada: Bell Canada
Canadians to pay more, have less choice, for Internet
OTTAWA, 27 May 2021 – Consumers likely will lose competitive service options and pay more for Internet as a result of today’s CRTC reconsideration of wholesale Internet rates, the Public Interest Advocacy Centre (PIAC) warned.
John Lawford, PIAC Executive Director and General Counsel, decried the decision, saying: “Both the CRTC and the federal government lost their nerve in dealing with the major Internet providers. They backed away from a fair wholesale rate that would have increased consumer choice and lowered internet prices for Canadian consumers.”
The Canadian Radio-television and Telecommunications Commission (CRTC) decision today is a reconsideration of a previous CRTC order that ordered major Internet service providers such as Bell Canada, TELUS and Rogers sell wholesale access to their networks to allow competitors to offer their own services at affordable rates. The CRTC had, in their first decision, set a much lower rate than the rate approved today. The CRTC also had ordered rebates to small Internet providers that had paid more than the first decision’s final rate – but today’s decision largely removed that part of the order.
The major Internet providers launched a three-pronged attack on the CRTC’s original order: appealing to the courts (which dismissed their case); petitioning the government; and asking the CRTC for today’s decision. The Petition to the government was dismissed but accompanied by language that the major Internet providers claimed may have helped direct the CRTC to increase the rate.
Lawford noted that without most of the previously ordered rate repayments and with today’s higher rates, consumers may see some of the smaller Internet providers, who typically offer cheaper Internet service, go out of business in the near future. “Consumers need affordable Internet more each day” noted Lawford. “But the government and the CRTC clearly were afraid to support competition during a pandemic and ahead of an election. They should fear consumer anger far more.”
For more information, please contact:
Executive Director and General Counsel
Public Interest Advocacy Centre (PIAC)
613-562-4002 ext. 125 (New)
(613) 447-8125 (cell)
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Applications for Social Justice Articling Year 2022-2023 Now Open at PIAC – Funded by Law Foundation of Ontario
Description for Social Justice Articling Positions Funded by the Law Foundation of Ontario
Name and Location of Organization:
Public Interest Advocacy Centre (PIAC)
2-285 McLeod Street, Ottawa, ON, K2P 1A1
For Articling Year: 2022-2023
Deadline for Application: May 25, 2021 at 5:00 p.m. (EDT)
Interviews the weeks of: 31 May and if necessary, 7 June 2021
Offers will be made: June 18, 2021 at 8:00 a.m. (EDT)
Description of Organization and Areas of Law:
The Public Interest Advocacy Centre (PIAC) was federally incorporated in 1976 as a non-profit corporation and has charitable status for tax purposes. The organization’s purpose is to provide representation, research and advocacy on behalf of those elements of the public interest that would otherwise be unable to be adequately heard before courts, tribunals, and decision-makers. PIAC has tried to focus its mandate on issues arising from the delivery of important public services including telecommunications, broadcasting, competition law, energy, financial services, and transportation. PIAC seeks to represent and advocate on behalf of ordinary consumers, in particular vulnerable consumers, concerning the rates, policies, rules and regulations associated with the delivery of these services with a view to ensuring principles of access and affordability and fair treatment for the constituencies it tries to serve.
PIAC’s work takes a variety of forms. First, the lawyers of PIAC represent organizations whose membership serves our target constituencies before boards and tribunals where the industries delivering such services are regulated. These organizations include ACORN Canada, the Vulnerable Energy Consumers Coalition, the Consumers Association of Canada, the Ontario Society of Senior Citizens Organizations (OSSCO), National Pensioners Federation (NPF), Option consommateurs (OC), l’Union des consommateurs (UC), and Rural Dignity of Canada among others. PIAC’s most significant commitments for such representation occur before the Canadian Radio-television and Telecommunications Commission (CRTC) and the Ontario Energy Board (OEB) where PIAC lawyers are full participants in administrative proceedings including the presentation of evidence and the making of written and oral submissions.
Because the delivery of the public services touches upon consideration of other important legal and policy matters, PIAC has also developed expertise and is frequently involved in funded and unfunded work (approximately 20% of PIAC’s work is unfunded) representing its constituencies in competition law and practice, electronic commerce, privacy, multilateral agreements, and general issues of consumer protection.
PIAC carries out its work outside the hearing room in numerous ways. Its extensive studies and reports associated with the above are published and distributed to policy makers and the general public through its web site. PIAC staff participates in discussions with government officials, other industry stakeholders, other public interest communities, as well as groups representing its own constituencies to attempt to secure rights, rules, policies or consensus that will advance the interests of the communities that PIAC serves. PIAC frequently attends before parliamentary and legislative committees to pursue these same goals in legislation. Finally, PIAC’s staff are active in traditional and online media to present a coherent defense of those communities’ position when the delivery of important public services is in issue.
Description of Responsibilities:
- Research and writing on legal and policy issues to support studies and reports of the Centre;
- Research and writing to support regulatory interventions in tribunals;
- Assistance and attendance with PIAC counsel for tribunal work, meetings with government officials and presentation before parliamentary committees;
- Participation in discussions of advocacy strategy and position with Counsel and Centre clients
Salary/benefits: $51,000 for the articling term, Medical and Dental plus paid vacation
Application must include:
- Cover letter
- Undergrad transcripts
- Law school transcripts
- Letters of reference
Applications should be addressed to:
Executive Director and General Counsel
Public Interest Advocacy Centre
2-285 McLeod Street, Ottawa, ON, K2P 1A1
Email to: email@example.com
** Please note: We no longer accept faxed applications.
Students will be interviewed during the week of 31 May and, if necessary, the week of 7 June with a view to extending an offer on June 18, 2021 by ZOOM videoconference.
This position has been made available through
The Law Foundation of Ontario Public Interest Articling Fellowship program. We thank the Law Foundation of Ontario for their support.
Buying Speed? What Canadians Pay for Broadband: Part 1 – The CRTC’s “Measuring Broadband Canada” report does not measure up
How fast is your Internet connection, really? How good is it, anyway? How can you tell?
The Canadian Radio-television and Telecommunications Commission (CRTC) is rightly interested in this question. So the CRTC contracted with SamKnows, a “global internet measurement and analysis platform”, to collect data in October 2019 on the performance of broadband Internet services sold to Canadian consumers. The results were published in a report, “Measuring Broadband Canada,” released in June 2020, at the tail of the “first wave” of COVID-19 in Canada. The outcome according to the CRTC?:
“Canadian consumers are receiving maximum advertised Internet speeds”. PIAC was suspicious.
The data were collected with “Whiteboxes”, which are hardware installed between a user’s device and their home modem or router to monitor broadband performance when no one in the home is using the Internet. You heard that right. When no one is using the Internet in the home.
Another important limitation of these Whiteboxes: measurements are only taken from the service provider’s location to the Whitebox, not within the user’s home network. You heard that one right too. Not accounting for your network setup, devices, or anything that uses or potentially slows down the Internet speed during customers actually “using” the Internet in a normal way.
Let’s give them the limited and “perfect” conditions, however. Let’s examine what they measured: the “performance indicators”. Those measured were: download and upload speeds; latency; packet loss; and webpage loading time. These are limited, but useful, indicators. However, other parameters could have been included – ones like “jitter”: a/k/a “packet delay variation”, (where variation in IP packet arrival at nodes in the Internet can cause packet loss and dropouts and interruptions, especially for a user’s voice and videocall applications – which are essential during the pandemic, whew!). Oh well.
The test results purported to show that all major Canadian ISPs are providing users with speeds meeting or exceeding the advertised speed, apparently to the point that users often were getting “additional” throughput, with very few instances of service falling below advertised speeds, for all performance indicators. Wow, this seems great.
The Report also claimed that speeds also did not decrease significantly during peak hours. Really?
Now we are suspiciouser.
We believe a closer examination of this claim reveals that, for a Report that claims to be “designed to provide accurate data on the broadband performance experienced by the majority of Canadian fixed-line broadband users,” the study is actually extremely limited in scope, and the conclusions drawn from the results are tone-deaf to the real-world usage context of Canadians. Perhaps this was made easier by the significant scaling down of the sample size and diversity of the measured connections, compared to a similar SamKnows study conducted in 2016. (This creates a risk of drawing conclusions from small sample sizes, or in short: the human cognitive bias to give too much credence to statistically insignificant results, called by behavioural economics scientist Daniel Kahneman the “law of small numbers”.)
However, most of the conclusions in this Report appear to rely upon what was chosen to be studied, and not on what was deliberately excluded, and that these scope reduction choices made by the Report authors were justified on technical bases but not on social or actual real-world use bases – the real world being the point of studying consumers’ experiences of their broadband service (and, we might add, the authors’ choices and limitations were implicitly endorsed by the CRTC, which uncritically announced the Report’s results with an industry-boosting News Release). We examine these critical limitations, and the sweeping conclusions reached, below.
The sample pool is heavily skewed towards higher tier plans and urban users
The first major limitation is in the service packages and demographics that the 2020 Report chooses to include, or rather, to exclude. The results were based on a pool of measurements from 2035 Whiteboxes deployed to customers of participating Internet Service Providers (ISPs), including the three largest ISPs: Bell; Rogers; and TELUS. Only Internet packages with the highest subscriber counts were included in the study in order to “represent the majority of Canadian fixed-line broadband users”. For comparison, the 2016 study used data from 3056 Whiteboxes, without the “highest subscriber count” condition.
The 2020 Report also excludes advertised download speeds of 10 Mbps or less, and packages that had less than 25 000 total subscribers. With few exceptions, sample sizes of less than 40 Whiteboxes per Internet package were excluded. The 10 Mbps cutoff is particularly concerning, as many rural Canadians only have these lower tier plans available to them. The study does not explain whether the exclusion of lower tier service packages was because of declining number of subscribers or otherwise. The exclusion is especially confounding considering the 2016 study did include Bell Canada’s 7/0.64 Mbps and 5/1 Mbps plans, and TELUS’ 6/1 Mbps plan, which respectively underperformed at 81%, 86%, and 81% of the advertised speeds. The CRTC’s choice to not re-evaluate these plans 3 years later calls into question whether the speed and quality of service has improved for Canadians still relying on these basic plans.
The lack of evidence for lower-tier plans does a disservice to rural Canadians, who tend to only have access to lower speed broadband Internet. Based on the most recent Communications Monitoring Report (CMR), released by the CRTC earlier this year, the broadband coverage in rural communities in 2018 was only 40.8% for broadband speeds of 50/10 Mbps (31.3% in First Nations reserves), compared to 97.7% coverage for urban areas. 1.5 Mbps broadband was available to rural communities at a much higher coverage rate of 94.0%, and yet the SamKnows study does not address whether these users are getting reliable service at speeds that are already inadequate for modern usage needs even at the advertised benchmark.
Another major difference between the 2016 and 2020 Reports is that the 2016 Report explicitly took measurements that “covered all geographic regions of Canada in a mix of urban and rural settings,” and acknowledged variations in results stemming from rural and remote measurements. The 2020 Report makes no such claims – because it cannot – in fact, it does not mention a rural sample portion at all. We can only assume, based on how the data collection is skewed towards higher-tier services, that effectively only urban and suburban users were included in the study. Furthermore, the study excluded Northwestel from the results for webpage loading times because “their remote location would have an adverse impact on results compared to other ISPs.” This should raise the eyebrows of anyone familiar with selection bias. A fairer presentation would have been to include this information from Northwestel and then to explain those data’s effect on the bottom line number with an explanatory note. In effect, the study cherry-picks results, limited to urban and suburban users, who typically enjoy greater reliability and more service choice than rural and remote users.
Collecting data during periods of inactivity only measures speed, not user experience
As we noted earlier, the “real-world” utility of Whitebox measurements is also limited by the fact that data are only collected when there is no end-user “cross-traffic” on the home network. In other words, the Whitebox only takes measurements when there is no one in the household actually using the Internet, apparently so that the “WhiteBox’s measurements are not “distorted” by end-user activity, and that the Whitebox’s measurement traffic does not interfere with the user’s experience of the Internet. Except, of course, the user’s actual household experience is always filtered by the fact that they must use their Internet connection, and some sort of consumer device, such as a smartphone, laptop, or connected TV to experience speed and to use the product, that is, the Internet. Therefore the study only measures potentially available speeds on a household network, not how efficiently and reliably those broadband speeds stand up to normal and indeed, human, user activity. The study qualifies that the Whiteboxes only measure speeds to the “doorstep” (Whitebox) because factors like the number of devices in use at the same time, faulty equipment, and poor Wi-Fi connectivity can affect broadband performance inside the home. Well, duh. We all live in the real world, with some “network overhead”: routers, WiFi, devices. Why can the study not allocate and take into account a “typical” such level of overhead?
It is precisely the real-world factors that, together with the “to the door” delivered speed and quality, to “make or break” the utility of an Internet service for a household, especially during peak hours. Without more comprehensive research that accounts for these factors, or at the least some allowance for consumers to live in the real world, with a real network and real Internet devices, the study should recognize its results for what they are: merely the potential maximum speeds “available” to a household.
The 2020 Report, however, makes the very much larger, and, in the real world, at least confusing claim that “Canadian ISPs have mostly met or exceeded maximum advertised download and upload speeds across tiers and regions,” despite the Report’s partial and theoretical, rather than real-world, basis. But wait, there’s more: the report extrapolates that “quality of service is consistent across Canada,” and that the results were based on “the broadband performance experienced by the majority of Canadian fixed-line broadband users.” Firstly, the effective exclusions of rural areas by concentration on higher-tier packages completely undermines the assertion that service is consistently up to snuff across Canada. Secondly, the Report, by its own methodology explicitly excludes any “consumer experience” at all – since only the Whiteboxes’ “experience” is measured, not the experience of a real consumer on a real network using a real device – so any claim of “performance experienced by … Canadian … users” is manifestly false. Lastly, the Report, despite the measurements being conducted prior to the COVID-19 pandemic (but released during it) now is of questionable utility in the real world context of the current pandemic. With more households working and going to school from home, resulting in longer peak periods and heavier traffic, more use of video and audio streaming and communications tools like videoconferencing, the need for faster and more reliable broadband is greater than ever.
Let’s park our cynicism and assume for a moment, however, that the majority of Canadians do in fact have access to high speed Internet, the issue during the pandemic and well before, for many consumers, is not speed, but affordability of Internet service. In rural communities, household spending for Internet services is increasing despite slow deployment of high speed Internet. From 2013 to 2017, average monthly Internet access spending increased for rural households from $37.42 to $54.83, a whopping 46.5% increase.
The CMR directly acknowledges that rural households spend more than urban households because of “slightly higher prices offered in rural areas, where there are typically fewer service providers.” Instead of a simple Report examining largely the highest service tiers for the most easily-served demographics, the CRTC should at the least supplement this Report with a study that helps resolve the accessibility and affordability issues that have persisted for years, especially for vulnerable and underserved Canadians.
Conclusion: What’s wrong, why it matters, and how it can be fixed
The 2020 Report is flawed. It presents an artificial “measurement” of selected networks, in selected locations, for selected users at selected speeds, in ideal conditions and a totally artificial context as far from “real world” Internet experience of users as we can imagine.
To then claim that Canadians’ experiences of the Internet are that it is fast is flatly wrong. It smacks of regulatory propaganda. We are tired of this approach from our telecommunications regulator.
At the very least, the CRTC should rethink its methodological approach to make the next report more comprehensive and reliable. The CRTC should rethink its communications regarding this report and similar reports prepared for the CRTC such as the even more recent “Secret Shopper Project Report” – which has its own limitations, as examined in PIAC’s “We Fight for That” podcast, episode 2.
Next up: Part 2 – Traffic Cops on the Internet – Broadband Speed Advertising in Canada and Abroad
In part 2 of our “Buying Speed? What Canadians Pay for Broadband” series, our next blog post focuses on broadband speed advertising. PIAC notes that other countries view the broadband speed question much more pragmatically than Canada, and require advertised speeds to correspond to lived experiences of average users, at average times under average network loads. Is Canada’s laissez-faire approach to this facilitating something like false advertising? You be the judge.
Canadian Airlines: No Refund = No Bailout
Canada will soon “bail out” the ailing airline industry in Canada. We are convinced that talks between the federal government and carriers such as Air Canada, WestJet, and possibly smaller carriers are well underway. Recently, a loan package was announced in the United States for their air carriers measuring over US $25 billion with potential access to more. Back in Canada, some assistance already has been provided to smaller airlines, however, there is, given the depth of the effect of COVID-19 on air travel, no guarantee that Canada’s air travel landscape will be at all similar post-epidemic.
But consumers have other problems: many thousands hastily booked and rebooked cancelled flights when the Prime Minister asked Canadians abroad to come home. In the chaos of country-specific flight restrictions, airport and airspace closures, schedule disruptions, health screening measures and growing financial uncertainty, many airlines unilaterally delayed, rerouted, cancelled or changed consumers’ flights, sometimes for multiple flights. Thus, early priority was placed on repatriating Canadians stranded abroad. There were notable failures and stranded passengers. Other Canadians have complained about high fares for the flights that they had to book to return from abroad. There continue to be many Canadians who cannot get home. The problem is so large that the Minister of External Affairs said he has become Canada’s “travel agent to the world”. We hope the government’s efforts can bring them home soon. Canadians abroad having issues should start by registering with Global Affairs Canada and using their emergency service to get help on their COVID-19 page. They also should, to the extent they can, document their efforts to return home, so that they can have evidence for any future complaints to their airline or the Canadian Transportation Agency (CTA) – see more below.
Now attention is turning to those Canadians whose flights, including future flights, have been cancelled, delayed or rebooked at higher cost. More seriously, perhaps, PIAC has received many complaints from consumers about future cancelled flights and the lack of refunds for these flights.
Unfortunately, the measures taken by the federal government and in particular the airline regulator (the CTA) have not provided adequate consumer protection. The CTA, on Friday the 13th of March, on the application of the Canadian airlines, in paper hearings, without opposing parties, made sweeping (time-limited to 30 June 2020) suspensions of Canadians’ recently acquired rights to compensation for flight cancellations under the new Airline Passenger Protection Regulations. (Please see PIAC’s technical blog, with links, on these determinations). The CTA also stated that it considered that vouchers for future flights, provided they were generally usable for 24 months into the future, would be reasonable compensation for cancelled flights.
We disagree. Consumers deserve compensation for losses due to COVID-19 cancellations that were not their fault. Bailing out airlines without the condition that these customers’ losses be compensated is not acceptable. When airlines take large sums from consumers for future flights, and do not segregate those funds in trust but instead use them as operating funds, they have effectively taken consumer money for nothing. CTA also “got played” by the airline industry: they appear to have panicked and provided this extraordinary relief on the allegation of potential bankruptcy of the airlines without evidence (at least without public, transparent evidence) that the airlines truly needed to keep the money and avoid refunding cancelled and modified flights.
At best, shouldn’t CTA at the least have simply delayed such compensation until after we saw the terms of the bailout? Also, consumers’ situations are also too varied to offer future flight vouchers as if it were fair compensation. Consider, for example, elderly Canadians caught visiting foreign relatives who are now (for health or financial reasons, or simply due to the uncertainty of future air travel) unlikely to use a voucher in the future.
Class actions already have been filed saying consumers deserve monetary compensation. We urge Canadians to continue to demand refunds from their air carrier and to bring complaints to the CTA if their demands are not met – Canadians should know that the CTA continues to take consumers complaints during the suspension of the Air Passenger Protection Regulations. That is, file your complaint now and don’t wait until 30 June 2020.
The basic unfairness of not compensating Canadians – who simply cannot afford the monetary losses – often in the thousands of dollars – while potentially providing billions of dollars in corporate financial relief, whether to save an essential industry or not, rightly will raise the ire of Canadians. The federal government must ensure that cancelled flights and elevated fares for returning Canadians are compensated – or no bailout. If not, the political effects will rightly fall at their feet.
UPDATE: Consumer group Option consommateurs in Montreal has started a Petition to the House of Commons demanding consumer refunds for canceled flights. Please consider signing their Petition, which is found at:
CRTC Low Cost Data Only Plans: “Much Ado About Nothing”
The proposed lower-cost data plans outlined in the Canadian Radio-television and Telecommunications Commission decision from today are unlikely to be used and will not help provide more affordable options to Canadians. None of the proposed plans exceed 1 GB of data and only Rogers’ plans offer a voice and text allowance in addition to data for the price of $30. In effect, today’s decision was: “Much ado about nothing.”
If affordable and useful wireless service options are going to be made available to consumers, more competition is going to need to be introduced into the wireless market, not semi-cajoled, likely largely unused plans like those approved today. The best way to facilitate more competition in wireless would be to allow mobile virtual network operator (MVNO) access. That is, reselling of wireless service by new companies that obtain wholesale access to existing wireless networks.
The CRTC launched this consultation on lower-cost data only plans in March as a stop-gap measure after the Commission made a number of determinations regarding wholesale roaming charges by Bell, TELUS and Rogers in Telecom Decision 2017-56 that effectively delayed any meaningful MVNO access in Canada. The Governor in Council sent that decision back for reconsideration by the Commission, expressing concerns regarding choice of innovative and affordable mobile wireless services on offer from those national carriers, particularly for Canadians with low household incomes. Read: the government wanted the CRTC to move towards MVNOs sooner than later.
Unfortunately, CRTC chose delay on this file by issuing Telecom Decision 2018-97 which re-confirmed its refusal to consider even an indirect route to the real issue of MVNO access. The result was the process that led to the CRTC’s decision of today. In it, the CRTC has approved the suggested “data-only” plans of the national wireless providers. They have committed to offering lower-cost data-only plans which range from $15 for only 250 MB of data (yes, you read that right: 250 megabytes, not gigabytes) to $30 for only 1 GB of data. There was no reasoning given by the CRTC or the companies for these proposed prices. But that is because the CRTC did not think the public should see these costs.
Without unlimited data or lower prices for capped data, these “low-cost data only plans” will not help Canadians with low household incomes afford wireless services because they actually are not useful and affordable. They will remain largely unused while Canadians again wait for the CRTC to reconsider wireless services (and MVNOs) in a large upcoming proceeding (and largely avoid discussions of high wireless prices meantime).
Sorry, not much ado about nothing. A comedy of errors.