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Tamir Israel, Staff Lawyer (613) 562‐5800 ext. 2914 firstname.lastname@example.org
October 15, 2011 VIA WEB‐FILE Mr. Robert A. Morin, Secretary General Canadian Radio‐television and Telecommunications Commission Ottawa, ON, K1A 0N2 Dear Mr. Morin Re: Telecom Notice of Consultation CRTC 2011‐77, Review of billing practices for wholesale residential high‐speed access services, as amended Request for Information, CIPPIC Response CRTC File No.: 8661‐C12‐201102350 CIPPIC is in receipt of a submission from Bell in various subsidiary manifestations and TELUS Communications Company dated September 12, 2011 (the “Bell Letter”), raising concerns in answer to CIPPIC’s application for an award of costs associated with the above‐noted proceeding and taxation thereof. CIPPIC is also in possession of submissions from QMI and Shaw, also dated as above, supporting these concerns. CIPPIC is additionally in receipt of a Request for Information under section 28(1)(a) of the recently revised CRTC Rules of Practice and Procedure, SOR/2010‐277 (“Rules”) sent October 6, 2011. This constitutes CIPPIC’s response to these collective matters. In its Letter, Bell asks that the Commission to obligate CIPPIC and the Open Media Engagement Network (henceforth “OpenMedia.ca”) to “declare the total amount of financial assistance received in connection with their participation in TNC 2011‐77.”1 CIPPIC declares that it has received zero financial assistance in connection with its participation in this proceeding. With respect to OpenMedia.ca’s participation, some financial assistance was both received and used in furtherance of its own participation in TNC CRTC 2011‐77. However, none of this funding falls within the scope of “financial assistance received by the applicant from all sources for the purpose of participating in Commission proceedings” as that term is used in section
University of Ottawa Faculty of Law Université d’Ottawa Faculté de droit
57 Louis‐Pasteur Street, Ottawa, ON. K1N 6N5 Tel.: (613) 562‐5800 ext. 2553 email@example.com www.cippic.ca
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70(1) of the Rules and in Form IV. This is because such funding was used for the purpose of covering institutional costs not recoverable under existing CRTC costs mechanisms, such as organizational expenses for time spent in connection with a proceeding by officers and supporting staff, or with public engagement activity related with a proceeding, but indirectly so. Concerns set out in the Bell letter and subsequent Commission Request for Information focus on a fundraising request initiated by OpenMedia.ca in February. The fundraiser in question was aimed at generating support for a multi‐faceted response to a perceived and equally multi‐ faceted lobbying campaign underway by a number of telecommunications service providers on issues related to billing practices perceived as resulting from incumbent market dominance. OpenMedia.ca’s ‘Stop The Meter’ campaign, for which the February fundraising campaign was to provide general funding, aimed to match perceived efforts of incumbent ISPs in multi‐ faceted kind, and hence encompassed public outreach, lobbying efforts, coalition building, information sessions and the production of educational materials. It also included OpenMedia.ca staff time and effort expended in participation in the TNC CRTC 2011‐77 hearings, but this amounted to one marginal and relatively minor facet of the entire Stop The Meter campaign, and one not recoverable by CRTC costs mechanism. It is CIPPIC’s belief that concerns set out in the Bell/TELUS Letter and echoed by QMI and Shaw are legitimate, but inaccurate in their failure to grasp the nature of the relationship between CIPPIC and OpenMedia.ca and the different roles the two organizations play. Funds raised from the February fundraiser referred to in the Bell Letter relate to OpenMedia engagement efforts, and do not overlap with the bill of costs put in by CIPPIC in this proceeding. As such, the details of these funding exercises are not pertinent to the question before the Commission: whether awarding CIPPIC its costs as billed. Doing so will indemnify CIPPIC for its participation, and there is no prospect of possibility of double recovery, nor any need for greater disclosure. CIPPIC addresses these issues in greater details below.
I. Procedural Issues
Sections 65‐69 of the new Rules provide guidance for processes relating to costs applications. Section 67 provides cost respondents with a right of Answer to costs claims applications and limits the time for doing so to ten days from the day a final costs application is filed. Sections 65‐69 make no reference to a right of Reply for costs applicants. It is now apparent that the general right of reply available to applicants under section 27(1) of the new Rules is also available under the costs application process. In the majority of costs application scenarios, 10 days will be ample time for costs applicants to prepare and file a reply. In this particular case, costs respondents, in their Answer (the Bell Letter), brought new factual issues to CIPPIC’s attention. These facts, in turn, raised novel
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questions of a legal and factual nature that required greater examination on CIPPIC’s part than past costs application. CIPPIC additionally notes that it is Commission practice to refrain from issuing decisions on costs applications until the proceeding for which costs are sought has run its course in full (that is, until a decision has been issued in the proceeding in question). This means that there are no real time constraints on the resolution of this issue, and hence no prejudice to any of the costs respondents will result from permitting CIPPIC to submit this reply at this time. Refusing CIPPIC this opportunity to offer its responses to the issues raised in the Bell Letter would not be in the interest of fairness or the public interest. For these reasons, CIPPIC requests that the Commission exercise its discretion under section 7 and accept these comments. In addition, a further reply from Costs respondents may be in order.
II. CIPPIC, OpenMedia & Cost Recovery
Understanding CIPPIC’s and OpenMedia.ca’s typical activities in relation to telecommunications processes and proceedings within the context of cost recovery mechanisms is key to addressing OpenMedia’s funding request of February.
CIPPIC’s Participation in Telecommunications Proceedings
As is generally the case with respect to CRTC proceedings, CIPPIC received no funding with respect to its participation in TNC CRTC 2011‐77. As a pro bono legal clinic, CIPPIC never charges clients for the legal expertise it provides. As its efforts are focused on the provision of legal services, it lacks the time and resources to conduct grassroots fundraising. As such, it relies on various research grants and cost recovery mechanisms to ensure its operations can continue. While CIPPIC tries to base its prioritization purely on the public impact of the issues which it considers taking on, exigencies demand that it must also consider its ability to operate in the future as a consideration in making such decisions. With respect to TNC CRTC 2011‐77, given the public importance of this proceeding, CIPPIC prioritized it over other activities that would provide the type of funding it requires to continue operations. CRTC proceedings are a particularly onerous and time consuming activity for CIPPIC and are a significant draw on resources that could be used elsewhere. The ability to recover costs for such activities is integral to CIPPIC’s continued ability to participate in these proceedings. Even with these recovery mechanisms, CIPPIC finds this participation challenging. While actual costs expended is but one factor in deciding a cost award,2 it is important to note that CRTC proceedings greatly strain resources of groups such as CIPPIC. For example, in TPN CRTC 2008‐
Bell Canada v. Consumer’s Assoc. of Canada,  1 S.C.R. 190 (S.C.C.), per Le Dain, at para. 30.
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19, after the Commission’s decision in TCO CRTC 2010‐85, CIPPIC failed to recover the actual staffing costs it incurred through participation in what was a long and very intensive proceeding that fully occupied the clinic for a significant portion of our operating year. Inability and uncertainty with respect to costs recovery exacerbates the already resource‐intensive nature of participation in Telecom proceedings, making it a difficult area for ongoing participation. Diminished participation will undermine the Commission’s objective of ensuring meaningful public interest participation in such proceedings as well as its ability to arrive at balanced conclusions that are in the public interest. CIPPIC is, of course, a pro bono clinic and does not under any circumstances accept fees for its services from public interest clients. Costs in such proceedings are not incurred by OpenMedia, but by CIPPIC. This is, indeed, the challenge of public interest participation in regulatory proceedings. But this challenge was dealt by the Supreme Court of Canada in Bell v. CAC, where a similar funding arrangement was approved in PIAC’s favour:
With respect to the costs awarded to NAPO et al., the essential contention was that the costs had not been incurred by NAPO et al. but had been incurred by PIAC, to which NAPO et al. had no obligation of payment or reimbursement.3
Indeed, in various submissions to CIPPIC’s cost recovery application in TNP CRTC 2008‐19, Bell itself critiqued CIPPIC for not taking greater efforts to combine submissions with other parties.4 As rightly noted by Bell then, where there is agreement on submissions, collaborations of this nature are more efficient and ultimately cost effective then the alternative, where each public interest party acts independently. But the use of such arrangements cannot operate to confound public interest organization efforts to recover their costs. Had CIPPIC received funding earmarked for its participation in TNC CRTC 2011‐77, it would have surely included detailed accounting of such funding in its bill of costs. However, it has received no such funding. In sum, CIPPIC’s costs are its own, and it does not accept fees for its services from public interest clients, nor did it receive any funding in association with its participation in this particular proceeding. It relies on various cost recovery and funding mechanisms for its continued operation, and, unfortunately, the ability to recover its costs by necessity plays a role in its intake decision‐making process, affects staffing capacity, as well as its general ability to participate in proceedings of this nature.
Bell, supra note 2 at para. 4. Bell Companies, Cogeco Cable Inc., Rogers Communications Inc., Saskatchewan Telecommunications, and Shaw Communications Inc., “The Costs Respondents’ Response to Claims for Costs in Telecom Public Notice CRTC 2008‐ 19”, September 25, 2009, CRTC File No.: 8646‐C12‐200815400, para. 10 et seq. A proceeding was later held revisiting CRTC costs mechanisms where this issue was once again pressed. See: Telecom Notice of Consultation CRTC 2009‐716, Review of CRTC costs award practices and procedures, CRTC File no.: 8657‐C12‐200915770, November 23, 2009.
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CIPPIC’s Relationship to the Open Media Engagement Network
CIPPIC’s relationship to OpenMedia.ca is of those ‘artificial arrangements’ cited by Justice Le Dain in Bell v. CAC and increasingly common on the public interest side of regulatory environments.5 Both CIPPIC and OpenMedia.ca advocate in the public interest on telecom‐ related matters, and often coordinate on a number of issues. Given scarce resources, CIPPIC and OpenMedia.ca focus their expertise, time and effort on different elements of the advocacy effort when collaborating. CIPPIC’s efforts are devoted to substantive efforts such as legal and technical research, coordinating and working with experts, analyzing and formulating policy positions, and drafting and presenting submissions. Its efforts have, in this and in past proceedings, been of assistance to the Commission in navigating the complex issues before it and, particularly, in understanding the public interest dimensions of those issues. OpenMedia.ca’s efforts on telecommunications issues are equally vital to advocacy efforts in this context. Their efforts focus on public engagement, education and outreach, coalition building and lobbying. In addition, as was the case in TNC CRTC 2011‐77, OpenMedia.ca will on occasion present the outcomes of its engagement efforts to the Commission directly so that it is better aware of the impact different Commission policies have on individual Canadians.6 While there is some natural overlap between the scope of activities highlighted above – CIPPIC is active in public engagement, education, outreach and lobbying as well – coordination on a specific campaign allows hard‐pressed organizations such as CIPPIC and the Open Media Engagement Network to maximize scant internal resources. It is only through such cooperation that public interest groups are able to attempt to match the vastly more resourced and equally multi‐faceted campaign efforts of those within the regulatory stakeholder system whose interests are not aligned with the public interest. For these other stakeholders, media campaigns, lobbying, committee appearances, and active participation in CRTC proceedings is compensated directly as these processes impact on profit margins and business models. Such stakeholders are therefore highly motivated to expend their significant resources advocating in their interest across these various channels. An effective and properly functioning stakeholder model such as the one the CRTC oversees in the Telecommunications sector depends on equal participation from the public interest perspective across the full spectrum of these activities. All of these activities require resources and funding from some source.
Bell, supra note 2 at para. 19. See, for example, “Transcript of Proceeding”, Vo. 2, July 12, 2011, TNC CRTC 2011‐77, lines 1501‐1509, <http://www.crtc.gc.ca/eng/transcripts/2011/tt0712.html>.
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Scope & Application of CRTC Cost Recovery Mechanisms
CRTC cost awards, of course, are not designed to subsidize public interest participation across this full panoply of activities, but are naturally restricted to indemnification for participation in CRTC proceedings. Neither, however, should they be structured so as to defeat public interest efforts to fund these activities threw other means. The other activities public interest groups such as CIPPIC and OpenMedia.ca undertake in their advocacy efforts on a given procedure‐ related issue must be funded through other resources, such as online fundraising campaigns. With respect to organizational participation in CRTC proceedings, cost recovery for such participation is incomplete as only a narrow component of such participation is eligible for indemnification. Specifically, participants are unable to recover time expended on non‐legal activities. Cost‐recovery for non‐legal participants is limited to travel expenses. CIPPIC raised this concern in its submissions to TNC CRTC 2009‐716:
 Specifically, as noted in the Commission’s Guidelines for the Taxation of Costs: costs generally will not be awarded for time spent by the applicant’s support staff, administrative staff, officers and directors, acting as such, in connection with its participation in the proceeding. While this issue does not impact on CIPPIC’s capacity to participate in CRTC proceedings directly, it does impact on non‐profit organizations such as the Campaign for Democratic Media. In Public Notice CRTC 2008‐19, for example, CDM expended significant effort preparing for and participating in the proceeding. While, as is commission practice, CIPPIC requested compensation for travel expenses incurred by CDM directly, the time of its officers was not claimed. Organizations such as CDM play a vital role in the telecommunications regulatory environment. In this proceeding specifically, Mr. Steve Anderson of CDM testified before the Commission on grassroots views held by Canadian supporters of his organization with respect to the traffic management practices of ISPs as well as the importance of an open internet to Canadians.7
The above‐cited (italicized) portion of the Commissions’ costs guidelines was retained in the Commission’s Guidelines for the Assessment of Costs adopted in Telecom Regulatory Policy CRTC 2010‐963.8 While the Guidelines (and their predecessors) recognize cost recovery for some forms of in‐house services, these are expressly limited to legal or analyst/consultant services:
CIPPIC, “Initial Comments”, January 23, 2010, Telecom Notice of Consultation CRTC 2009‐716, Review of CRTC costs award practices and procedures, CRTC File no.: 8657‐C12‐200915770, November 23, 2009. 8 Telecom Regulatory Policy CRTC 2010‐963, Revision of CRTC costs award practices and procedures, December 23, 2010, CRTC File no.: 8657‐C12‐200915770.
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In‐house Services 20. An applicant who employs an in‐house salaried legal counsel, articling student, legal assistant, or analyst/consultant will be permitted to recover costs, at the daily rate set out in Appendix A, for that person’s work which is necessarily and reasonably undertaken in connection with the proceeding.9
In the past, the Commission has made clear that a “genuine consultant relationship” must exist before cost recovery for in‐house salary can be received by an Applicant.10 Specifically, those “responsible for [an] Applicant’s day‐to‐day operations” do not qualify as in‐house consultants or analysts cannot recover for time spent in relation to the proceeding. For this reason, the bill of costs submitted by CIPPIC in this proceeding (as well as those submitted by other parties, including Vaxination Informatique, the World Broadband Foundation and Mr. Jatinder Bhulla) is not reflective of any time‐related OpenMedia.ca costs incurred in connection with TNC 2011‐77. However, the reality remains that these time‐related costs exist. In connection with the hearing stage of the TNC, for example, Steve Anderson, Executive Director of OpenMedia.ca, invested time in travelling from Vancouver to Ottawa during the hearing stage of the proceeding, was present at both phases of the hearing, prepared and presented oral arguments at both, and was presented with undertakings from the Commission.
III. The OpenMedia.ca Funding Campaign
The Bell Letter points to a fundraising campaign initiated by OpenMedia.ca on February 22, 2011. The Commission’s Request for Information of October 6 requests that details be submitted on the record regarding this same funding campaign. In order to address the Bell Letter as well as the Commissions’ Request, a detailed examination of the OpenMedia.ca funding requests in question is in order. Two were made, an initial funding request on February 22, as well as of the follow‐up issued on February 23.
The Initial Funding Request
The campaign, entitled “Phone and Cable Companies Strike Back”, opens its plea for funding with:
Phone and cable companies have unleashed a deep‐pocketed public relations campaign designed to confuse the public about new Internet usage fees. Case in point: on Friday, Macleans Magazine published an editorial that read like a Rogers talking‐points primer (Rogers owns Macleans).
CRTC, Guidelines for the Assessment of Costs, Revised as of December 23, 2010, section 20. See Telecom Costs Order 2008‐3, Determination of costs award with respect to the participation of “97% of the People of Canada” in the Telecom Public Notice 2007‐15 proceeding, April 8, 2008, CRTC File Nos.: 8665‐C12‐ 200711756 and 4754‐306/4754‐310.
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Big Telecom foot soldiers have been in the media saying that YOU are just being emotional, and that you don't understand what you signed when you signed the Stop The Meter petition. This is elitist, condescending, and outright insulting. At the same time broadcasters and cable companies are meeting in Ottawa to hash out a plan to deal with online services that are "competing for customers". We can't let them turn back the clock. We need a well‐coordinated response to prevent these corporations from interfering in the upcoming CRTC hearing, which is critical for the elimination of the new Internet fees.11
The initial funding call then itemizes two elements of OpenMedia.ca’s planned response to the efforts itemized above:
1. Unleash the creativity and ingenuity of Canadians. People from all walks of life ‐‐ innovators, educators, students, entrepreneurs, and everything in between ‐‐ are getting together on February 26th for a Day Of Action to educate our fellow Canadians about Internet metering. 2. Put together a united front of public interest groups, creators, indie ISPs, online service providers and half a million Canadians to put forth a well‐researched, evidence‐based submission to the CRTC. We've done this before and won. We're confident this 1‐2 punch can work, but it does require resources. Please invest the Stop The Meter campaign while we have this special matching funds offer.12
The last line included a hyperlink to an OpenMedia.ca funding page dedicated to this fundraising drive: http://openmedia.ca/drive, which no longer exists and now redirects to OpenMedia.ca’s fundraising page of general application. Finally, the initial fundraising plea ends with an image of an advertisement OpenMedia.ca had prepared, designed and placed in the paper version of the Globe and Mail, referring the Globe’s readers to http://www.stopthemeter.ca and calling on them to sign OpenMedia.ca’s petition (found at that Uniform Resource Locator) in general opposition to a metered Internet.13
The Follow‐up Funding Request
A follow‐up fundraising plea was sent the following day, on February 23, 2011, notifying would‐ be OpenMedia.ca supporters that the initial campaign goal of $15,000 had been reached within one day, and that additional matching funds had been added. It then informs would‐be OpenMedia.ca supporters that:
This support will help us deepen our policy work and step up our outreach even further, at a key time.
http://openmedia.ca/blog/letter‐supporters‐phone‐and‐cable‐companies‐strike‐back Ibid. 13 Ibid.
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We’ve received word that the CRTC is planning a set of invitation‐only meetings with “stakeholders” on March 23‐24 in Ottawa, where online broadcasting will be a major issue. Without the watchful eye of the public, these meetings could become yet another big telecom lobbying bonanza. We’ve seen this movie before and it doesn’t end well. With your support we’ll do our best to ensure someone is representing Canadians at those meetings. You can help by getting us to our goal today.14
The tag line “getting us to our goal today” is a hyperlink to http://openmedia.ca/drive, the now defunct OpenMedia.ca donation page dedicated to this campaign. Would‐be supporters are then provided with “Some key updates on [OpenMedia.ca]’s campaign”, including:
Some key updates on our campaign: CRTC Process begins Check out our first submission to the CRTC’s UBB proceeding ‐ remember, this is the one that you forced them to hold. Along with several other groups, OpenMedia.ca is calling for the CRTC to overhaul their entire pricing regime. To stay updated on the process, bookmark our website, Facebook page or Twitter. Stop The Meter National Day of Action Get involved with our National Day of Action this Saturday at 1 PM. Check out this video explaining what some people are doing. Help us reach half a million signatures on our petition! Here's what you need to do:15
With details related to the ‘National Day of Action’ campaign following.
Analysis – the ‘Stop the Meter’ Campaign
The Bell Letter implies that the funding requests above were a mechanism for generating revenues to cover legal participation in the TNC. As evident in the excerpts above, the funding requests represent general funding for the ‘Stop The Meter’ campaign, which included a broad range of advocacy activity. Of all this activity, only two elements of the funding requests (the two cited in the Bell Letter), make specific mention of the CRTC proceeding. The Bell Letter implies that these references are to be taken as transforming all funds raised by OpenMedia’s February campaign into “financial assistance [obtained] in connection with its participation in TNC 2011‐77”.16 Closer examination of these two elements, in isolation as well as within the broader context of the two funding requests, puts this in question. It demonstrates that the funding requests are focused on core OpenMedia activities: public engagement, lobbying, media outreach, etc. To the extent that OpenMedia’s direct involvement in the proceeding is
http://openmedia.ca/blog/letter‐supporters‐weve‐reached‐our‐goal‐already‐so‐were‐stepping‐campaign Ibid. 16 Bell Letter, supra note Error! Bookmark not defined. at para. 2.
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implied, it is heavily marginalized. The text of the funding requests were naturally designed to cover OpenMedia’s own Stop The Meter activities. OpenMedia’s organization‐specific Stop The Meter advocacy has been diverse, and direct participation by OpenMedia staff in the proceeding is but one minor element of these. This is naturally reflected in the text of the OpenMedia February campaign, as the campaign was calibrated to fund OpenMedia.ca activities in relation to the entire Stop The Meter campaign. To the extent that direct participation by OpenMedia in the proceeding is envisioned in the funding requests, it is to address costs not recoverable through CRTC cost awards, such as OpenMedia staff time spent on participation in the proceeding. Other advocacy activities specifically mentioned in the funding campaign requests include: very generalized “policy work” and “outreach”,17 a ‘National Day of Action’ event that took place in several cities throughout Canada and was coordinated by OpenMedia,18 participation in a CRTC sponsored “set of invitation‐only meetings with stakeholders”, 19 in‐kind responses to incumbent‐generated media campaigns referenced in the initial Fundraising plea,20 lobbying activities to counterbalance those and advertisement and other campaigns to bolster public support for OpenMedia’s ‘Stop the Meter’ petition.21 All of this activity is well outside the scope of the CRTC Telecom costs award apparatus. Indeed, given the diversity of these activities and OpenMedia’s focus on such advocacy activities in furtherance of the Stop The Meter campaign for the period in question, the February campaign is not very different from general core funding received by all public interest participants in CRTC proceedings from time to time. Such funding is not typically considered ‘financial assistance in connection with with…participation in the proceeding.’22 Of the two direct references to CRTC submissions, the Follow‐up Request mentions an early submission made by CIPPIC and OpenMedia with respect to the scope of the TNC 2011‐77 proceeding.23 The Bell Letter appears to imply that reference to this submission indicates funding from the campaign will be allocated to the preparation of such submissions. This is not
http://openmedia.ca/blog/letter‐supporters‐weve‐reached‐our‐goal‐already‐so‐were‐stepping‐campaign Initial Plea and Follow‐up Plea. 19 Ibid. 20 Initial Plea: Phone and cable companies have unleashed a deep‐pocketed public relations campaign designed to confuse the public about new Internet usage fees. Case in point: on Friday, Macleans Magazine published an editorial that read like a Rogers talking‐points primer (Rogers owns Macleans). Big Telecom foot soldiers have been in the media saying that YOU are just being emotional, and that you don't understand what you signed when you signed the Stop The Meter petition. This is elitist, condescending, and outright insulting. Initial Plea: an advertisement that had already been sent out is included. See See Telecom Regulatory Policy CRTC 2010‐963, Revision of CRTC costs award practices and procedures, Reference No.: 8657‐C12‐200915770, December 23, 2010, paras. 8‐11. 23 Follow‐up Plea.
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the case. Reference to the CRTC submission is largely intended as information on the most recent and salient developments in the broader Stop The Meter campaign, of which the proceeding itself was but one small facet. To begin with, the bullet in question is presented under the heading: “Some key updates on our campaign” and the sub‐heading: “CRTC Process Begins”. Both of these headings are inherently informative in nature. The bullet makes no reference to OpenMedia resources devoted to the creation of this submission. Indeed, the bullet itself focuses largely on public engagement and participation as the core activities of focus to would‐be OpenMedia supporters (my emphasis):
Check out our first submission to the CRTC’s UBB proceeding ‐ remember, this is the one that you forced them to hold. Along with several other groups, OpenMedia.ca is calling for the CRTC to overhaul their entire pricing regime. To stay updated on the process, bookmark our website, Facebook page or Twitter.
References are to the apparent impact on CRTC decision‐making of past public engagement campaigns as well as to the availability of mechanisms for staying updated on the process through further engagement tools such as Facebook and Twitter. This is not surprising, as OpenMedia activities and resources are primarily focused on such engagement‐based advocacy. Further, when viewed within the broader context of the Follow‐up Request, this characterization of the Follow‐up Request as an earmark for legal representation costs is further marginalized. It directly follows a description of stakeholder meetings scheduled for March 2011 in Ottawa as well as the only explicit funding ‘ask’ in the Petition:
We’ve received word that the CRTC is planning a set of invitation‐only meetings with “stakeholders” on March 23‐24 in Ottawa, where online broadcasting will be a major issue. Without the watchful eye of the public, these meetings could become yet another big telecom lobbying bonanza. We’ve seen this movie before and it doesn’t end well. With your support we’ll do our best to ensure someone is representing Canadians at those meetings. You can help by getting us to our goal today.24
This ‘ask’ is very clearly focused on a completely distinct element of the ‘Stop The Meter’ campaign – participation in stakeholder meetings (OpenMedia staff did, in fact, fly to Ottawa and participate in these meetings. No independent funding was available for such participation). The only other direct reference to activity that could potentially fall within the scope of a CRTC cost award is found in the Initial Funding Request, where OpenMedia.ca points out its plan to “put together a united front of public interest groups, creators, indie ISPs, online service providers and half a million Canadians to put forth a well‐researched, evidence‐based submission to the CRTC.”25
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Clearly, this is not intended to indicate a research, analysis, and drafting process that encompasses half a million Canadians, let alone the other listed participants in OpenMedia’s ‘united front’. Rather, this bullet accurately represents the type of activity that occupies the majority of OpenMedia staff time in relation to such campaigns: public outreach/engagement and coalition building. The results of these public outreach activities were, of course, reflected in submissions to the TNC. OpenMedia Executive Director Steve Anderson, for example, presented oral submissions at Phases I & II of the hearing which were largely focused on presenting these views.26 As noted above, time spent in preparation of these submissions by Mr. Anderson is not recoverable through CRTC cost awards and not reflected in the bill of costs filed by CIPPIC in this proceeding. As with the Followup Funding Request, the impact of this bullet is margianlized within the broader context of the Initial Funding Request and does not transform that request into an earmark for financial assistance in connection with participation in the proceeding. It is, instead, intended to cover costs not otherwise recoverable through CRTC costs mechanisms and, more generally, is but one facet of a long list of envisioned ‘Stop The Meter’ advocacy. A partial itemization of ‘Stop The Meter’ campaign activity includes (in no particular order, chronological or otherwise): daily engagement activities by OpenMedia staff through OpenMedia’s various social and traditional media resources;27 various costs related to web and graphic design in support of general engagement activities; ongoing operation of a Digital Action Team, including coordination of volunteers, planning and hosting of meetings;28 the preparation of educational materials and resources on usage based billing;29 the preparation, translation and printing of “Casting an Open Net” – a report put out by OpenMedia regarding online billing practices and other ‘Stop The Meter’ related issues;30 meetings held in Ottawa with various members of Parliament to present ‘Casting an Open Net’ and call for the implementation of its recommendations;31
See “Transcript of Proceeding”, Vo. 2, July 12, 2011, TNC CRTC 2011‐77, lines 1501‐1509, <http://www.crtc.gc.ca/eng/transcripts/2011/tt0712.html>. 27 See: http://openmedia.ca, http://www.twitter.com/openmedia_ca and more specifically http://openmedia.ca/blog/internet‐essential‐service‐21st‐century‐society. 28 http://openmedia.ca/team 29 http://openmedia.ca/meter/resources ; http://stopthemeter.ca/ 30 http://openmedia.ca/plan/action‐plan 31 http://openmedia.ca/blog/casting‐open‐net‐ottawa and http://openmedia.ca/blog/openmediaca‐meets‐ another‐mp‐don‐davies‐vancouver‐kingsway.
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creation of a live portal for public engagement during the hearing;32 creating and hosting a live interactive ‘chat’ post‐hearing to interact directly with public supporters of the Stop The Meter campaign and answer questions regarding TNC CRTC 2011‐77;33 meeting with then Liberal Party industry critic Marc Garneau to discuss usage based billing, telecom competition and other related issues;34 coordinating, creating resources for, and promoting a National Day of Action to protest telecommunications issues in various cities across Canada;35 meeting with the Minister of Industry Tony Clement to discuss Internet billing practices, competition in the provision of Internet access services, and related issues;36 public advocacy campaign calling on CRTC to make its internet governance forum open to the public;37 participation in the CRTC organized Interne t governance forum;38 rallying political parties to participate in TNC CRTC 2011‐77;39 developing print advertisements and placing them in various news publications; and Mr. Anderson’s preparation and presentation of views gained from supporters of the ‘Stop The Meter’ campaign during oral presentations at TNC CRTC 2011‐77.40
While much of this activity can be characterized as “in connection with [OpenMedia’s] participation in TNC 2011‐77” in a very general sense, none of it is eligible for any form of cost recovery under the existing Guidelines for the Assessment of Costs. The funding campaign, while referencing TNC CRTC 2011‐77, was aimed at recovering OpenMedia costs associated with its general Stop The Meter campaign. The proceeding itself was one facet of that campaign, and OpenMedia.ca’s direct participation in the proceeding one slight facet of its overall hearing‐related activities. None of these itemized ‘Stop The Meter’ campaign costs, inclusive of OpenMedia Executive Director Steve Anderson’s direct participation in the proceeding, are recoverable under CRTC costs mechanisms.
http://openmedia.ca/blog/letter‐supporters‐what‐weve‐been‐waiting http://openmedia.ca/chat 34 http://openmedia.ca/GarneauMeeting 35 http://openmedia.ca/blog/action‐update‐heres‐how‐were‐doing 36 http://openmedia.ca/blog/action‐update‐heres‐how‐were‐doing 37 http://openmedia.ca/blog/action‐update‐heres‐how‐were‐doing 38 http://openmedia.ca/news/media‐advisory‐openmediaca‐executive‐director‐attend‐crtc‐forum‐future‐internet‐ governance‐available 39 http://openmedia.ca/blog/action‐update‐heres‐how‐were‐doing 40 http://openmedia.ca/blog/letter‐supporters‐what‐weve‐been‐waiting 3. By bringing your voices to the table. OpenMedia.ca is attending the Internet metering hearing on your behalf. When it’s our time to speak, we’ll be representing the interests of the nearly half‐a‐million Canadians who signed the Stop The Meter petition. We’ve got your back.
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IV. The Commission Request for Information
In a letter dated October 6, 2011, the Commission has issued the following Request for Information:
In their joint answer to CIPPIC’s application, Bell Aliant, Bell Canada and Telus alleged that OpenMedia.ca had received financial assistance for its participation in this proceeding that must be deducted from any costs awarded. They point to two letters to supporters that were posted on the OpenMedia.ca website on 22 February 2011 and 23 February 2011. In the first letter, OpenMedia.ca solicited financial support and stated that ISPs Acanac inc. and Teksavvy Solutions Inc. would provide some matching funds if OpenMedia.ca could raise $15,000 within 48 hours. In the second letter, OpenMedia.ca stated that it had surpassed its goal of $15,000 within 24 hours, and solicited further funds, stating that TekSavvy Solutions Inc. and Acanac Inc. would provide further matching funds if they could raise another $5,000 within the next 24 hours. Question: 1) Provide the amounts that OpenMedia.ca received in response to each of the two letters mentioned above, further broken down between the amounts received from Acanac Inc. and TekSavvy Solutions Inc. as matching funds and the amount from individual donations.
As indicated above, there is no overlap between funds raised in the referenced letter campaigns and CIPPIC’s bill of costs in this proceeding. There is no issue of double recovery. The funds were raised for purposes wholly unrelated to those reflected in CIPPIC’s bill of costs and were not, therefore, specifically designated for cost‐recoverable purposes associated with participation in this proceeding.41 As with the word ‘costs’ in section 73 of the former National Transportation Act, R.S.C. 1970, c. N‐17, section 70(1) of the Rules should not be read in a restrictive manner that ignores the true nature of public interest organization cooperation. The Commission should certainly take into account any financial assistance received “for the purpose of participating in Commission proceedings”, this term should not be interpreted restrictively to include fundraising campaigns earmarked for organization activity not recoverable through CRTC costing mechanisms. Such a narrow interpretation would “in ultimate practical effect, weaken or destroy the principle which the Commission set out to accomplish” in defining its cost award mechanisms.42 It would prevent organizations from effectively campaigning on necessary and costly advocacy efforts surrounding proceedings, but not recoverable through them. There is no reason for the Commission to take such funding into account in determining CIPPIC’s application for costs. It would be unfair to OpenMedia.ca to require this disclosure, as direct participation in TNC CRTC 2011‐77 was at best one minor facet of the full funding
Bell, supra note 2, para. 19. Bell, supra note 2, para. 16, citing Taxation Order 1980‐1.
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campaign and not sufficient to bring the entire fundraising campaign within the Commission’s assessment of CIPPIC’s costs application. Indeed, providing the information requested above would, in CIPPIC’s view, prejudice the Commission’s determination. Without a full and detailed accounting of the myriad ways in which ‘Stop The Meter’ funds were spent across all the activities detailed above, the Commission will not be able to properly assess whether or to what extent this funding should impact on CIPPIC’s bill of costs. Yet a full accounting of such spending would be onerous to provide. Given that the funding was earmarked for activities that, at best, touch only minimally on the proceeding itself, it would be unfair to call on OpenMedia.ca to provide this detailed accounting. In Telecom Notice of Consultation CRTC 2009‐716, the Commission was asked to alter its cost recovery process so as to obligate costs applicants to:
(a) declare their sources of funding; and (b) attest to the fact that without a costs award, their participation in the proceeding would cause them to suffer significant financial hardship.43
In TRP CRTC 2010‐963, the Commission rejected this request to obligate onerous declaration of funding sources beyond those associated specifically with a given proceeding.44 CIPPIC’s bill of costs reflects costs necessarily and reasonably incurred in connection with the proceeding. Indeed, CIPPIC’s costs request was extremely modest in comparison with proceedings of comparable length, complexity, and public importance, and reflective of its responsible participation in the proceeding. It relied heavily on junior counsel in preparation of its submissions in order to keep costs low. It engaged the assistance of experts in a responsible manner calculated to minimize costs incurred. In light of this, CIPPIC asks the Commission to reconsider its request to provide a full accounting of OpenMedia.ca’s funding campaign. If the Commission does not do so, it must find a way to take into account the full range of non‐recoverable costs associated with the ‘Stop The Meter’ campaign in determining whether CIPPIC’s bill of costs reflects costs ‘necessarily and reasonably incurred in connection with the proceeding’.
In conclusion, while CIPPIC recognizes the legitimacy of concerns raised in the Bell Letter, it is of the view that these concerns are based on a misunderstanding of the nature of the division of labour between CIPPIC and OpenMedia.ca. These types of divisions arise from the nature of public interest organization interactions, which are atypical, but legitimate (as noted in Bell v. CAC). When read through a clearer understanding of the division of activities and non‐
See Telecom Regulatory Policy CRTC 2010‐963, Revision of CRTC costs award practices and procedures, Reference No.: 8657‐C12‐200915770, December 23, 2010, para. 8. 44 Ibid., para. 11.
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compensable nature of the relationship between CIPPIC and OpenMedia.ca, it should become clear that the funding campaign referred to in the Bell Letter was not related to costs reflected in CIPPIC’s bill of costs. Rather, these funds were earmarked generally for a vast range of OpenMedia.ca staff ‘Stop The Meter’ advocacy activities, primarily related to the public engagement and lobbying efforts that are its core activities. Given the breadth and scope of OpenMedia.ca advocacy efforts conducted through the Stop The Meter campaign and clearly envisioned in the February funding requests, this funding is not far different from the general core funding received by all CRTC telecom participants from time to time. For this reason, such funding was not disclosed in the initial costs application, and need not be disclosed now. This funding was not ‘financial assistance received in connection with participation in the proceeding.’ There is no ‘double recovery’ involved. Costs reflected in the bill of costs have not been recovered. Funds received from the campaign covered organizational costs that are not recoverable through CRTC costing mechanisms, but that are no less vital and important to a functioning multi‐stakeholder ecosystem such as that relied upon by the Commission and under the Telecommunications Act as a prerequisite for developing balanced and optimal telecommunications policy in Canada. CIPPIC asks, therefore, that: These comments, representing its reply to the Bell Letter and/or to the Commission’s Request for Information of October 6 be accepted on the record of the proceeding; That its costs be taxed as reflected in its bill of costs; and That the Commission reconsider its Request for Information of October 6. If there are any questions or concerns in relation to this submission that I can clarify, please do not hesitate to contact me. Best regards, Tamir Israel Staff Lawyer, CIPPIC CC (VIA Email Only): Interested parties to TNC CRTC 2011‐77 Crystal Hulley, Legal Counsel, CRTC *** END OF DOCUMENT ***
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