2016 BCBA Conference. Annual Legal and Regulatory Review. Christian S. Tacit. Tel:

Transcription

1 2016 BCBA Conference Annual Legal and Regulatory Review Christian S. Tacit Tel: ctacit@tacitlaw.com

2 Outline of Presentation CRTC Registrations Commissioner for Complaints for Telecommunications (CCTS) VoIP 9/11 Compliance Canada s Anti Spam Legislation Notice and Notice TD : Review of costing inputs and application process for wholesale HSA Follow-up to TRP : Review of Wholesale Wireline Services

3 Outline of Presentation (continued) Wholesale Mobile Roaming Rate Tariffs TNC : the Basic Service Objective Bell Forbearance Applications Québec Bill 74: ISP blocking of gambling websites CRTC s Three Year Plan: Highlights How are you coping with IPv4 number scarcity? Are your customer agreements in order

4 CRTC Registrations Entities that wish to provide telecommunications services may need to appear on one of the CRTC s registration lists. Currently, there is no registration requirement for companies that only provide fixed wireless services per se, but Registration requirements do apply if a fixed wireless provider also offers other telecommunications services such as VoIP, or DSL or cable Internet or buys services from other telecommunications service providers (TSPs). Now is the time to register: The CRTC has recently issued letters to the industry to determine which TSPs have not yet registered My company is not on the list, what do I do!? Don t panic, you can still apply to be added to any of the CRTC s lists.

5 CRTC Registrations (cont d) The lists: Basic International Telecommunications Services (BITS) Licensees Facilities-Based Providers Non-Facilities-Based Providers

6 CRTC Registrations (cont d) Basic International Telecommunications Services (BITS) Licences Providers of voice services (both traditional and VoIP) must obtain a BITS Licence in order to send and receive voice traffic between Canada and another country. BITS Licence obligations No anti-competitive conduct in the provision of international voice services Compliance with contribution regime Submit affidavit with accurate information (legal name, contact info, place of incorporation, etc.) Provide CRTC with any information required by regulation

7 CRTC Registrations (cont d) Facilities-Based Provider Lists: Competitive Local Exchange Carriers (CLECs) Incumbent Local Exchange Carriers (ILECs) Small Incumbent Local Exchange Carriers (SILECs) Non-Dominant Carriers Wireless Carriers Other Carriers Obligations: File data with the CRTC on an annual basis File ownership information to attest that they are eligible to operate as a telecommunications common carrier If they provide international voice services, a BITS licence is required Adhere to regimes specific to registration types and general regulatory rules

8 CRTC Registrations (cont d) Non-Facilities-Based Providers Competitive Pay Telephone Service Providers (CPTSP) Digital Subscriber Line (DSL) Providers Resellers of High Speed Retail Internet Service Resellers of Telecom Services Obligations: File data with the CRTC on an annual basis If they provide international voice services, a BITS licence is required Are not subject to ownership and control regulations Adhere to regimes specific to registration types and general regulatory rules

9 Commissioner for Complaints for Telecommunications Services (CCTS) What is the CCTS? An independent organization dedicated to resolving complaints relating to telecommunications services (home phone, mobile wireless, Internet, etc.) Administers consumer codes (e.g. the Wireless Code) Publishes annual report on complaints identifying trends in complaints that may warrant government attention

10 Commissioner for Complaints for Telecommunications Services (CCTS) What types of complaints does the CCTS have jurisdiction over? Compliance with contract terms and commitments (but not the contract terms themselves) Billing disputes and errors (but not the price of the service itself) Service delivery Credit management For what kind of services? Home telephone Long distance telephone services (including prepaid calling cards) Wireless phone services (including voice, data and text) White page directories, directory assistance and operator services Other forborne (unregulated) retail telecommunications services

11 Commissioner for Complaints for Telecommunications Services (CCTS) What is excluded from the CCTS jurisdiction? Television and radio broadcasting Yellow page directories Security services (e.g. alarm monitoring) Internet content and software-based applications Services that the CRTC has not forborne for social or economic reasons (e.g. payphones, 900/976 premium services and accessibility services like teletypewriter) Other excluded matters: Telemarketing, unsolicited messages Privacy and confidentiality violations Misleading advertising Pricing of services Contract terms (other than compliance issues)

12 Commissioner for Complaints for Telecommunications Services (CCTS) (cont d) What powers does the CCTS currently have? It can require a participating service provider (PSP) to: provide a customer with an explanation or apology, an undertaking to do or cease doing certain activities with respect to the customer OR monetary compensation up to $5,000

13 Commissioner for Complaints for Telecommunications Services (CCTS) (cont d) How is the CCTS funded? By PSPs PSPs with Revenues > $10 million = One-time sign-up fee $1,000 - $25,000 depending on revenues Revenue-based fee calculated on a proportion of total eligible Canadian telecommunications revenues reported to the CCTS Complaint based fees Quarterly & Based on level at which complaint is disposed PSPs with Revenues < $10 million = nominal Annual Fee. One-time sign-up fee of $500 Nominal annual fee of $100 Complaint based fees Quarterly & Based on level at which complaint is disposed

14 Commissioner for Complaints for Telecommunications Services (CCTS) (cont d) Under what circumstances does a provider become a PSP? Upon receipt of its first in-scope complaint from a customer, the service provider must apply to become a PSP. Regardless of the merits of the complaint What if we do not apply? The CCTS maintains a list of non-compliant providers on its website There are other potential sanctions

15 Commissioner for Complaints for Telecommunications Services (CCTS) (cont d) What is the general process for a CCTS complaint? 1. CCTS conducts an assessment of the complaint 2. Complaint is forwarded to the provider, which has 30 days to respond 3. If the complaint is unresolved after 30 days, CCTS collects information from both parties and attempts informal resolution 4. Investigation, if still unresolved, the CCTS will analyze the evidence provided 5. If still unresolved, CCTS will issue recommendations to the parties 6. If one or both parties rejects the CCTS recommendation, the CCTS issues a final Decision. The party against which a complaint is lodged must pay a fee to the CCTS that escalates at each major stage of the process, creating an inducement for PSPs to settle early regardless of the merits.

16 Commissioner for Complaints for Telecommunications Services (CCTS) (cont d) In June 2015, the CRTC launched a proceeding to review the structure, mandate, funding model, participation trigger and most other operations of the CCTS In March 2016, the CRTC issued its decision, which determined: All TSPs that offer services within the scope of the CCTS mandate must continue to be participants The complaint trigger is maintained Licensed and affiliated exempt television service providers (TVSPs) must become members by 1 September 2017 (same timeline for TVSP Code compliance). The CCTS will be expected to improve the transparency of its operations and to provide resources in furtherance of its mandate: to promote awareness of the CCTS to monitor compliance by service providers to ensure that its services and website are accessible

17 Commissioner for Complaints for Telecommunications Services (CCTS) (cont d) Complaint based fees: Level of Complaint Fee Pre-Investigation $88.75 Investigation $ Recommendation $ Decision (demanded by customer) $ Decision (demanded by PSP) $488.13

18 VoIP Compliance Obligations Providers of VoIP services must obtain a confirmation from the CRTC that obligations are being respected Why are there obligations? To protect consumers from the inherent limitations of service over VoIP telephony Limitations include: Limited operator access to call location or contact information Service unavailable during Internet interruptions and power failures To inform customers about other differences between traditional and VoIP 9-1-1

19 VoIP Compliance Obligations (cont d) What are the obligations? The service provider must provide customers with notification texts describing the limitations of emergency service over VoIP services. The service provider must have appropriate limitations of liability with respect to VoIP service. The service provider must have stickers on VoIP devices/handsets to remind the customer of service limitations and customer s responsibilities. The service provider must submit samples of the above materials and other information (such as how limitations are described in marketing materials related to VoIP services) to the CRTC in order to receive approval.

20 Canada s Anti-Spam Legislation (CASL) Establishes rules for sending of Commercial Electronic Messages (CEM s), the installation of computer programs, and prohibits unauthorized alteration of transmission data. Definition of Commercial Electronic Messages: electronic message = sent by any means of telecommunication commercial = encourages participation in a commercial activity Sending CEMs is prohibited UNLESS: Consent Express or Implied Content requirements are satisfied: Sender is identified Sender contact information is included Unsubscribe mechanism

21 Canada s Anti-Spam Legislation (CASL) (cont d) Exceptions: Family AND personal relationships Employees of same organization Employees of different organization in some cases Responses to requests, inquiries or complaints Relating to certain legal matters Other (charity, political, etc.) Alteration of transmission data in an electronic message is prohibited unless express consent, court order, or undertaken for the purposes of network management. Installation of a computer program requires express consent or court order Stiff penalties, based on factors (1M for individuals / 10M for corporations)

22 Canada s Anti-Spam Legislation (CASL) (cont d) Express consent Purpose for consent must be clear Sender information must be clear If with regards to program installation, purpose of program must be described Oral consent valid if witnessed by independent party or recorded Implied consent If existing business relationship [36 month transition period when Act came into force] Certain non-business relationships (donation, volunteer, association) Receiver has published its contact info without non-solicitation disclaimer Unsubscribe mechanism: Must be functional No costs Readily performed

23 Notice and Notice Balanced compromise between rights of copyright owners and freedoms of Internet users. ISP obligations: 1. As soon as feasible, forward the notice electronically to the person to whom the electronic location (IP Address) identified by the location data specified in the notice belongs 2. Inform the claimant of its forwarding OR, if applicable, of the reason it was not possible to forward it. 3. Retain records on the identity of the person to whom the IP address in the notice belongs to, for 6 months or 12 months (if claimant sues the alleged infringer and provides the ISP notice).

24 Notice and Notice (cont d) Valid Notice must be in writing and: a) State claimant s name and address (to allow communications) b) Identify the work or other subject-matter to which the alleged infringement relates c) State the claimant s copyright interest or right in the work d) Specify the location data for the electronic location to which the claimed infringement relates e) Specify the infringement that is claimed f) Specify the date and time of alleged infringement

25 Notice and Notice (cont d) ISPs cannot charge fees Statutory Damages: $5,000 $10,000 Scale dictates implementation: automation vs manual processes Web forms / Automated Copyright Notice System (ACNS) Most ISPs attach a wrapper message to their end-users to provide context Avoid giving legal advice Link to information resources

26 Notice and Notice (cont d) Common complaints that we hear from our clients: Settlement offers Notices regarding works that are of a sexually explicit nature Notices are being sent to the wrong address Form/style of notices that are being received Duplicate notices for the same infringement Inclusion of advertisements for competing streaming services Example: It has never been easier to watch these programs legally on XYZ Streaming Service ; After some industry dialogue between the content owners and service providers, the wording of these messages may be changed and references to specific services removed; If the practice persists, regulatory remedies may be available

27 TD : Review of costing inputs and application process for wholesale HSA In response to a CNOC Part 1 Application, the CRTC issued a proceeding to review issues with wholesale high-speed access services (HSA) The Commission determined: A simplified speed-banding approach for wholesale HSA services would apply going forward Provides greater flexibility to introduce new speeds without filing a coststudy every time The Commission adjusted several cost inputs to reflect modern values and trends Increase in annual traffic growth rates from 20% to 32% (after first 2 yrs) Annual capital unit cost change from minus 10% to minus 26.4% for traffic-driven equipment

28 TD : Review of costing inputs (cont d) Study period reduced from 10 to 5 years; However, for services with high start-up costs, those costs are to be recovered over a reasonable period that can extend beyond the 5 year study period Commission states that wholesale HSA providers must ensure that all equipment in the access portion includes only non-usage sensitive costs Final rate for destandardized services = rate of applicable speed band Commission makes all wholesale HSA service rates interim and orders cost studies within 45 days of decision (March 31, 2016), now extended by another 45 day (to June 30, 2016)

29 Follow-up to TRP : Review of Wholesale Wireline Services TRP ordered mandated wholesale HSA services, including Fibre-to-thehome, on a disaggregated basis Will be implemented first in Ontario and Quebec The Commission launched a follow-up proceeding to determine the appropriate disaggregated configuration Rounds of requests for information and requests for disclosure; Carriers filed their configurations; Interested parties filed interventions; Commission is currently reviewing the record; A decision is expected in the coming weeks or months Once configurations are approved, the Commission will initiate a costing process

30 Wholesale Roaming Rate Tariffs In TRP , the Commission mandated wholesale roaming services (for voice, data, SMS) The National wireless carriers have since filed proposed tariffs that include both rates for wholesale roaming services as well as terms and conditions Interested parties have until May 9, 2016 to file interventions; the National wireless carriers will have an opportunity to reply and all parties will have opportunities to issue requests for information

31 TNC : the Basic Service Objective Purpose of the proceeding is to review the Commission s basic telecommunications services policy Three week hearing concluded last week Some of the major issues: Should broadband be included in the definition of a basic service subject to an obligation to serve? What should be the Commissions regulatory and aspirational speed targets? Should other services characteristics be reflected in the basic service objective (e.g. latency, packet loss, jitter, data caps)? What should be the design of Canada s National Broadband Strategy? How should Canada s National Broadband Strategy be Funded? Government Funds? Subsidy Programs? Digital literacy; Accessibility; and Affordability

32 TNC : the Basic Service Objective CNOC participated in the proceeding and took the following positions: Broadband should be considered a basic service 10Mbps download / 3Mbps upload speed as the appropriate regulatory target Quality of service aspects (latency, jitter, etc.) are important and should be investigated further Discoverability of transport facilities is important National Broadband Strategy requires cooperation between CRTC and federal, provincial and local governments including First Nations Creation of new entity required to disburse government funding Government tax dollars should be primary source of funding Transport subsidy appropriate for Far North Provincial governments are best suited to address affordability and digital literacy issues, but the CRTC and federal government can have an important role to play in creating awareness and providing content to further these objectives

33 Bell Forbearance Applications Bell Canada has filed several Part 1 Applications seeking forbearance of certain services CNOC opposed some of these applications on the basis that they inappropriately sought variances of TRP Current open forbearance applications relate to: Extended Area Service (EAS) and Local Transit Service Interventions are due on May 9, 2016 Regulation of Wholesale Wireless Access Services These services provide mandated interconnection and rates for wireless service providers that do not operate as CLECs Interventions are due on May 9, 2016 Forbearance of Wireless Obligations Interventions are due on June 1, 2016

34 Bell Forbearance Applications (cont d) The record has closed on two other Bell Canada forbearance applications relating to: ULL connecting links and line-sharing Also includes a request to freeze the rates for dry-loops for legacy GAS, HSA, DS-1 connecting links and CDN DS1-CO links Unbundled Wholesale Relay Services (TTY and IP Relay)

35 Québec Bill-74: ISP blocking of gambling websites Proposed law will require ISPs in Québec to block access to any online gambling website that is not authorized under Québec Law (i.e. not authorized by Loto- Québec ) black-list of websites will be maintained by Loto-Québec ISPs have 30 days to block access, by any means (DNS, etc.), of a website added to the list Government of Québec has noted that it will seek flexibility with respect to implementation and acknowledged that there may be greater challenges for wireless industry and smaller providers The Bill has been adopted by Committee - now the Bill must be re-tabled at the National Assembly for a vote

36 Québec Bill-74 (cont d) Other provincial governments might attempt similar approaches There has been strong opposition from the opposition parties in Quebec, from the Industry, from academia and the press, as well as from consumers With respect to Bill 74, Minister of Canadian Heritage Mélanie Joly commented that the government believes in Net Neutrality and will be having discussions with the Government of Québec There are clear jurisdiction conflicts between Bill 74 and Section 36 of the Telecommunications Act

37 CRTC s Three Year Plan: Highlights Notable announcements: : Potential Review of Internet Traffic Management Practices Decision on configuration of disaggregated services + tariff process Process initiated for configuration of disaggregated services in provinces other than ON/QC, followed by tariff process in Rate review for aggregated services (as per costing decision) Process initiated for competitor QoS + rate rebate plan : Decision on final rates for disaggregated services Final rates for aggregated services Process initiated for other wholesale costing inputs Decision on competitor QoS + rate rebate plan

38 How are you coping with IPv4 number scarcity? ARIN is out of IPv4 addresses and so can no longer make any allocations or assignments of such resources What to do? Accelerate the rollout of IPv6 (recognizing that dual stack operation may be needed for a few years) Conserve existing IPv4 resources as much as possible Obtain IPv4 resources in the transfer market, but be careful to ensure the ability to route numbers acquired registration information in the ARIN WHOIS database merely recognizes who has the authority to modify the records for the corresponding resources in the database it is not a guarantee of right to use the resources for routing purposes

39 Are your customer agreements in order? Ensure that you have proper customer agreements, including terms and conditions, AUP and privacy policy that conform to: Commercial best practices CRTC requirements (e.g., customer confidentiality, VoIP 9-1-1) CASL, PIPEDA, Copyright Act Provincial consumer protection laws Other statutory and regulatory requirements

40 THANK YOU!!!!