Canada: The Federal Government Signals A New Policy Approach For The CRTC in the Telecom Sector

On February 26, 2019, the Minister of Innovation, Science and Economic Development (ISED) tabled a Proposed Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives to Promote Competition, Affordability, Consumer Interests and Innovation (the "Proposed Policy Direction"). Section 8 of the Telecommunications Act permits the government to issue directions to the CRTC "of general application on broad policy matters" with respect to the statutory policy objectives relating to Canadian telecommunications that are set out in the Act.

If implemented substantially in the form as proposed, the Proposed Policy Direction will likely have a significant impact on the telecommunications regulatory framework overseen by the CRTC, in particular the manner in which the Commission exercises its powers and performs its duties in implementing the Canadian telecommunications policy objectives set out in section 7 of the Act.

The potential impact of the new Direction to the CRTC is best understood in contrast to the 2006 government Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives,which was enacted during the Harper government by then ISED Minister Maxime Bernier (the "2006 Policy Direction"). The 2006 Policy Direction focused primarily on minimal regulatory intervention by the CRTC. The Direction instructed the CRTC "to rely on market forces to the maximum extent feasible as the means of achieving the telecommunications policy objectives." Moreover, if the CRTC decided that regulatory intervention was warranted, the 2006 Policy Direction required the Commission to "use measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary to meet the policy objectives."

The Proposed Policy Direction moves away from this laissez faire approach to one which mandates the CRTC to engage in regulatory measures that will "promote competition, affordability, consumer interests and innovation." There are no less than four references to "affordability" in the new Direction and three express references to "consumers" or "consumer interests." Moreover, rather than promoting "market forces," the Proposed Policy Direction focuses on the existence of "market power" and the need for the Commission to adopt measures that foster affordability and lower prices in such circumstances.

Further, the Proposed Policy Direction appears to have de-emphasized the policy of "facilities-based competition," in contrast to the 2006 Policy Direction which favoured the investment in and ownership of competing telecommunications network facilities as a means of creating more competition among service providers and hence more consumer choice. The Proposed Policy Direction de-emphasizes reliance on facilities-based investment. In its place, the CRTC is directed to "encourage all forms of competition" and to "reduce barriers to entry and barriers to competition for new and smaller telecommunications service providers".

Thus, resale and service-based competition models now appear to be given equal prominence alongside facilities-based competition. In the wireless sector, there is an ongoing debate on whether non-facilities-based telecommunications service providers should have mandated access to the networks of the national wireless providers (Bell Mobility, Rogers and Telus) in order to provide services on a resale basis as "mobile virtual network operators" (MVNO). The Proposed Policy Direction may alter this outcome in prospective regulatory proceedings in view of its express direction to the CRTC to consider the use of measures that "reduce barriers to entry and barriers to competition for new and smaller telecommunications service providers" (i.e., all providers, not just facilities-based carriers).

It is significant to note that the CRTC commenced a policy proceeding on February 28, 2019, indicating its "preliminary view" that MVNOs should have mandated access to carrier networks "until they are able to establish themselves in the market." This is a departure from previous CRTC rulings in which the Commission declined to mandate wholesale MVNO access due to concerns for undermining incentives for investment by facilities-based carriers.

This more "facilities-agnostic" approach will likely be fiercely debated among stakeholders, many of whom have argued that policies which force reseller access to facilities-based providers will threaten the economic linkage between facilities-based competition and increased investment incentives. By lowering the relative price to "lease" infrastructure rather than building facilities, "service-based" regulation can distort the incentive for facilities-based entry by resellers and diminish the investment incentives for facilities-based service providers.

Many economists argue that abandoning an express policy favouring facilities-based investment would lead to social welfare losses if foregone investments in new technology and new service products are not made available to consumers. The other side of the debate views the adherence to the policy of facilities-based competition as no longer sustainable in the age of the Internet. This issue will clearly be front and center in stakeholder debate over the "outcome-based" objectives of the newly Proposed Policy Direction.

A further layer of uncertainty relates to whether the 2006 Policy Direction will be repealed following the enactment of the Proposed Policy Direction. There have been reports in the media that the government intends that the two policy directions will co-exist. If both policy directions were to remain in force, significant issues of interpretation will inevitably arise, rendering it increasingly difficult to read the "tea leaves" of government policy in the telecommunications sector.

The Order-in-Council will be formally published in the Canada Gazette on March 9, 2019, followed by a 30-day comment period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions