Public Interest Advocacy Centre
December, 2003

Introduction

Over the years, consumer groups have been a strong voice in the regulation of important public services and utilities. They have been vigilant in compelling government and private corporations to administer programs or to conduct business in accordance with fairness and due process.

In particular, the groups have advanced the interests of individuals and groups who are underrepresented in issues of major public concern. They champion issues that involve the delivery of important public and utility services.

Consumer groups ensure that the public interest is not neglected by decision-makers in government and the private sector when decisions are made about consumer issues. The groups agree with Gaetan Lussier, Chair, External Advisory Committee on Smart Regulation, "Regulating is an act of public interest. It should be developed from the citizen's perspective."¹

Government committed to move forward

The Speech from the Throne 2002 committed the federal government to moving forward with a smart regulation strategy:

The knowledge economy requires new approaches to how we regulate. We need regulation to achieve the public good, and we need to regulate in a way that enhances the climate for investment and trust in the markets. The government will move forward with a smart regulation strategy to accelerate reforms in key areas to promote health and sustainability, to contribute to innovation and economic growth, and to reduce the administrative burden on business.

The Speech from the Throne said that the Government of Canada would create an external advisory committee on smart regulation "to recommend areas where government needs to redesign its regulatory approach to create and maintain a Canadian advantage." An 11-person External Advisory Committee on Smart Regulation (EACSR) was created in May 2003. The committee includes Louise Rozon, executive director, Options consommateurs. The committee's members work on a part-time basis. According to the EACSR Web site, the committee will "sunset within a 12-15 month time frame."

Broad terms of reference

The EACSR has very broad terms of reference, creating a formidable challenge for a time-limited committee with members who work part-time:

1. Develop a regulatory strategy designed for the 21 st century, supporting Canada as a sovereign trading nation offering a high quality of life to its citizens.

2. Identify priority sectors and areas requiring regulatory reform in order for Canada to have a strategic advantage.

3. Review and provide an external perspective on current regulatory issues identified by departments and stakeholders.

According to Gaetan Lussier, EACSR's chair, "What we have been asked to do is to recommend ways to make the practice and process of regulation in Canada, relevant to the changes inherent in 21 st century life."² Amongst other things, this means "that consumers can enjoy more choice and make more informed decisions," according to Mr. Lussier.³

What is smart regulation?

The words "smart regulation" may have the taint of a buzzword or a concept with lots of style but little substance. A clear understanding of what is meant by "smart regulation" is essential. Otherwise stakeholders in the regulatory system may be talking about different things when they talk about smart regulation.

EASCR appears to be clear about what is not smart regulation. According to EACSR's Web site, the committee "was not established to advance a deregulation agenda; it was asked to propose ways to improve and modernize the regulatory system in light of evolving needs, demands and challenges of the 21 st century. … The mandate of the EACSR is ‘smart regulation' – not deregulation or reregulation." Mr. Lussier expanded on this point in a speech during the fall of 2003:

Let me start, by stating, for the record, that this is NOT a deregulation exercise. Nor is it a "reducing the paper-burden on business" initiative. And it is NOT an effort to cull from the existing stock of regulation those that have outlived their usefulness.⁴

The EACSR defines "smart regulation" as follows:

Smart regulation has both protecting and enabling characteristics with the goals of promoting health, safety and sustainability, contributing to economic growth and reducing the administrative burden on business. Smart regulation protects citizens, consumers and the environment at the same time that it contributes to innovation for the social and economic benefit of Canadians.

According to the definition, regulators today are smart regulators because they attempt to do – with varying degrees of success – what the committee defines as smart regulation. For example, the Canadian Radio-television and Telecommunications Commission decided in 1994 to replace earnings regulation of regulated telephone companies with price regulation. The new method provided greater incentives to improve the companies' efficiency and introduce network and service innovations while at the same time providing rate protection for consumers. However, as discussed later, the method was not perfect. Quality of service and other problems emerged.

A four-year price cap regime was established in 1997. The regime was comprehensively and publicly reviewed and evaluated by the CRTC in 2001. The review included extensive participation by consumer groups; the CRTC made cost awards available to the groups that contributed to the Commission's understanding of the issues. A new four-year regime was put in place with several important differences from the initial price cap regime. The CRTC's price cap regime is smart regulation, according to EACSR's definition.

According to EACSR, smart regulation is not deregulation or re-regulation or reducing businesses' paper burden or eliminating unnecessary regulations. What is left? Apparently what is left is doing a better job with what we have – a worthwhile undertaking since, as described below, much can be done.

What to focus on?

Doing a better regulatory job is the context for PIAC's submissions. An Organization for Economic Co-operation and Development (OECD) paper, The Second Generation of Regulatory Reforms , on EACSR's Web site notes that "there is little hard data to chart the way forward…."⁵ Like the OECD and others, PIAC has little hard data – but we have an abundance of experience. The consumer groups' submissions are made from the perspective of organizations with more than a quarter of a century of direct involvement in the regulatory system – and from the perspective of consumers.

Doing a better regulatory job is an immense topic given the pervasive role of regulation – for example, food safety, intellectual property, privacy, telecommunications, copyright, agriculture, health protection, pharmaceuticals, mining, genetic manipulation, securities, environment, air safety, broadcasting, energy, land use, disease control, research involving humans, fishing, forestry, banking, aquaculture...

The challenge of dealing with the pervasive role of regulation is compounded by ethical dilemmas – for example, research involving humans – and by concerns about Canada 's sovereignty. According to a paper prepared for EACSR by its secretariat:

In responding to these demands [for more serious consideration of international regulatory harmonization], Canada will need to address key issues such as the impacts of greater co-operation with the U.S. and other jurisdictions on Canadian sovereignty, and assess Canadian and American values and the extent to which they are different and the same.⁶

The assessment of Canadian and American values and the extent to which they are different and the same is an immensely important, complex and controversial area. To confirm this observation, one need only look at the protests surrounding international meetings to discuss global trade harmonization or the angst surrounding CRTC as it struggles to maintain a predominantly Canadian broadcasting system.

The technological empowerment of consumers is an interesting facet of broadcast and cultural regulation (and other regulation) in the 21 st century For example; hundreds of thousands of Canadian households completely bypass the Canadian broadcasting system through the use of black and grey market satellite receiving dishes. These dishes receive US and other international programming that the CRTC refuses to authorize for distribution in Canada in order to protect the Canadian broadcasting system.

Cannot address every challenge

In an undated letter to the Public Interest Advocacy Centre Mr. Lussier stated:

Since we cannot possibly address every challenge confronting Canada 's regulatory system, or every issue that is brought to our attention, it is imperative that we focus our efforts on a limited number of areas where we feel we can make a substantive contribution.

Consumer groups agree with EACSR's approach. In his letter, Mr. Lussier went on to state:

... our current thinking is to focus our research and fact-finding efforts on six over-arching issues:

• International Cooperation/Synchronization
• Federal-Provincial-Territorial Cooperation (Harmonization)
• Process Efficiency
• Risk Management
• Alternate Instruments
• Defining the Public Interest

In light of the consumer groups' expertise, experience and objectives, we will focus our submissions at this stage of EACSR's work on two of the Committee's six over-arching issues: alternate instruments and defining the public interest. In addition, we will respond to the following request by Mr. Lussier on behalf of EACSR:

At this time, we would be particularly interested in your identification of current regulatory issues that you feel the EACSR should consider examining and what action is required.

Comments made in the context of public utility regulation

Our comments are made primarily in the context of public utility regulation. Consumer groups submit that public utility regulation should be a major concern for EACSR. The regulation of public utilities deals with essential public services, services that have economic, social, cultural and political dimensions.

We note utility industries in Canada and elsewhere are often in transition from monopoly to competitive markets, a complex process that raises critical issues about the regulation of incumbent utilities in light of their market dominance.

Current regulatory issues 

We turn first to current regulatory issues that EACSR should examine. Our comments are made in the context of EACSR's view that smart regulation is not deregulation or re-regulation or reducing businesses' paper burden or eliminating unnecessary regulations. We have identified current regulatory issues in the context of doing a better job with what we have. For example, consumer groups may have views about matters that should be re-regulated but we take this area to be outside the scope of EACSR's work.

Taking into account the scope of EACSR's work, we submit there are six major current regulatory issues for consumers:

1. Transition from monopoly to competitive markets
2. Transparency
3. Accountability
4. Competence
5. Independence
6. Cost awards for consumer interventions

Protect consumers in the transition to competitive markets

As noted above, utility industries in Canada and elsewhere are often in transition from monopoly to competitive markets, a complex process that raises critical issues about the regulation of incumbent utilities in light of their market dominance. The transition from monopoly to competitive markets is gradual, resulting in utilities offering regulated and unregulated services. In this situation, a utility has the incentive to shift costs from the unregulated service to the regulated service – and ultimately to ratepayers. A recent major study by the Public Interest Advocacy Centre shows that the dramatic increase in monopoly local telephone rates during the decade following the introduction of long distance competition overwhelmed long distance savings for the ordinary consumer. The report concluded:

The report concludes that while competition has brought welcome changes in choice, service innovation, and reductions in the price of long distance service, it has also brought higher overall telephone prices for the typical residential customer, a deterioration in service quality, and a number of new marketplace problems for consumers.⁷

Incumbents have tools other than cost shifting to increase competitors' costs of entry, tools that the regulatory system must effectively confront. These tools are:

• Regulatory delays, impeding competitors' entry. The delays require new entrants to incur, for example, extra legal costs.

• Gold-plating: incumbents can increase competitors' costs by "gold-plating" essential facilities that they provide to new entrants. For example, new electricity generators depend on a utility for interconnection to the system; new local telephone companies depend on incumbent companies for local lines and switching calls. Competitors typically must pay the costs of these interconnection facilities.

• Technological requirements: Incumbents may control the data and other information for selecting the appropriate technological option to provide essential facilities to new entrants. An incumbent seeking to increase competitors' costs has an incentive to select a higher cost technology. For example, the CRTC found earlier this year that Allstream Corp. should not have to pay MTS Communications Inc. for the costs of an MTS initiated network reconfiguration. The CRTC noted:

  The Commission is of the view that when an incumbent local exchange carrier (ILEC) plans to reconfigure its local network, a consultation process should take place between the affected competitive local exchange carrier(s) (CLEC) and the ILEC, in order to ensure that all services provided to the CLEC continue to operate and to minimize any adverse impact on the CLEC.⁸

• Tying arrangements: Utilities may bundle services into packages designed to impede competitive entry. For example, earlier this year the CRTC found that the ILECs' refusal to provide retail digital subscriber line Internet services to a CLEC's primary exchange service customers served by local loops leased from the ILECs constituted unjust discrimination against CLECs and undue preference toward the ILECs.⁹

Other tools to thwart competition

In addition to increasing new entrants' costs of entry, incumbents have three other tools to thwart competition:

1. Denial of access to key facilities and resources: For example, an incumbent may claim an inability to provide critical resources to competitors when, in fact, it has the ability to provide the resources, or it may create the circumstances preventing the incumbent from providing the resources.

2. Advertising: The danger that incumbents will use brand recognition to consolidate market power looms large in the transition from regulated monopoly to competition. In 1996 the Manitoba Public Utilities Board stated with respect to Centra Gas Manitoba, a natural gas distribution company:

   The Board is concerned that consumers may not understand that, while affiliated companies may share the same name as the utility, these affiliated companies are not subject to the regulatory oversight afforded the utility. The Board, therefore, will order that Centra not allow any Centra affiliate operating in Manitoba to advertise its relationship with Centra and Centra ensure that its affiliates operating in Manitoba clearly state in all media, correspondence and contracts that its activities are not regulated by the Board.¹⁰

3. Actions in anticipation of competition: For example, incumbent utilities may attempt to consolidate control over the market for electric generation by acquiring new resources at ratepayers' expense. In addition, incumbents may enter into long-term contracts with large customers, preventing competition until the contracts expire. This problem is compounded if the incumbents can shift costs attributable to serving these customers to captive ratepayers – that is, consumers who do not have competitive choices.

Major regulatory issue

The transition to competitive markets is a major regulatory issue. The regulatory system must recognize that the transition is slow and complex with risks to consumers. As one commentator has noted:

Although technological developments have reduced the scope of natural monopoly in industries such as telecommunications, the need for regulation of firms with market power will not wither away in the foreseeable future.¹¹

In addition, the system must recognize that the regulation of public utilities deals with essential public services, services that have economic, social, cultural and political dimensions. The regulatory system must be careful not to prematurely release its regulatory reins or we will be left with unregulated monopolies. At the same time, the system must move in lockstep with the transition to competitive markets in order to ensure the transition moves forward. The CRTC's price cap regime is an excellent example of moving in lockstep. In addition, as discussed below, important changes must be made to the system to ensure, as Mr. Lussier said, "regulating is an act of public interest."¹²

Make the regulatory system more transparent

The Canadian regulatory system is not sufficiently transparent. Information is not systematically made available to the public. For example, the Public Interest Advocacy Centre, Bell Canada and some other telephone companies recently asked the CRTC to disclose staff briefing documents and other documents and analysis relied upon by the Commission in reaching certain of its views. The CRTC denied the request on the grounds that such material is consistently retained in confidence.¹³ In addition to the lack of information, public consultation is not systematic and too often it is centralized in Ottawa. The reasons underlying regulatory decisions are often not adequately disclosed, creating doubts about whether or not the regulations in the decision are in the public interest.

Weaken information monopolies

More transparency in the regulatory system means more effective participation by stakeholders, leading to better decisions. More transparency also means more public confidence that the regulatory system serves the public interest. Transparency is also a counter-balance to the economic power of regulated companies. A 1999 OECD paper on EACSR's Web site notes:

...the openness and contestability of regulatory processes weakens information monopolies and the powers of special interests, while encouraging entrepreneurism, market entry, consumer confidence, and the continual search for better regulatory solutions.¹⁴

Make the regulatory system more accountable

The Canadian regulatory system is not sufficiently accountable. Accountability, including evaluation, is critical to smart regulation. If ongoing accountability and evaluation are not an integral part of the regulatory system, smart regulation is dead in the water because we will not know whether or not regulators are meeting their objectives. We will also not understand the unintended effects of regulation nor will we have a basis for making changes that will improve the system. Accountability includes clear and effective appeals procedures that are not shrouded in secrecy and "behind the scenes" lobbying by vested interests.

Introduce more competence to the regulatory system

The Canadian regulatory system is not sufficiently competent, a problem that increases in significance as the matters at hand become more complex and interrelated.

Too often individuals are appointed to regulatory tribunals not because of what they know but because of whom they know. In addition, appointments can be the result of intense lobbying by powerful vested interests, a process that places emphasis on compliant regulators rather than competent regulators.

Make the regulatory system more independent

The Canadian regulatory system is not sufficiently independent. Regulators are often dependent on the companies and industries they regulate for research, data and other information. This information is often withheld from consumers and others on the grounds that it contains competitively sensitive information.

An OECD paper on EACSR's Web site states:

Sector-specific independent regulators are vulnerable to capture by the very industry they regulate, because regulators depend on the industry for information and cooperation in order to do their job.¹⁵

Regulators' dependence on regulated companies for information is particularly unsettling during the transition from monopoly to competitive markets in utility industries such as telecommunications and electricity. Incumbent utilities can control the information they possess to the disadvantage of new entrants, thwarting regulators' ability to bring about a viable transition to competitive markets.

As noted above, appointments to regulatory bodies can be the result of intense lobbying by powerful vested interests. This leaves the appointees with a sense of obligation to those who worked hard to have them appointed. In addition, a revolving door frequently exists between regulators and the regulated. Regulators often obtain employment or consulting assignments with regulated companies after their employment with a regulatory agency.

Increase the availability of cost awards

Adequate cost awards are typically not available to consumer groups intervening in the regulatory process. Regulators, government officials, and businesspeople often pay rhetorical homage to a mythical consumer ideal but when it comes to ensuring that consumer groups have sufficient resources to counter the resources of regulated companies in the regulatory arena, the cupboard is often bare. Regulated companies normally pay cost awards. As a result, increasing the availability of cost awards does not place a burden on the public purse.

More regulatory bodies need to be empowered to make cost awards to consumer groups that contribute to the bodies' understanding of the matters before them. Cost awards to public interest groups promote representation of as broad range of views as possible. This enhances regulators' understanding of the public interest and improves the record on which regulators' base their decisions.

Alternate instruments

EACSR has identified alternate instruments as one of the over-arching issues that the committee will focus on.

As noted earlier, our comments are made primarily in the context of public utility regulation. The ultimate alternate instrument to "command and control" public utility regulation is competition – a paradise currently beyond the horizon. However, during the transition, steps can be taken by regulators and governments to adjust the regulatory system to changes that occur as the transition unfolds. These steps include new approaches by regulatory bodies, "self-regulation on a leash", voluntary codes, and consumer education.

New approaches by regulatory bodies

The CRTC's 1994 shift from earnings regulation to price regulation of telephone companies provides an example of a new regulatory approach that adjusts to the transition from monopoly to competitive markets.

In considering whether or not a price cap regime should be introduced, the CRTC posed three questions to the public:

1. Is the Commission's historical form of monopoly regulation still the most appropriate?

2. Are there alternatives to traditional rate base rate of return regulation that would permit telephone companies greater flexibility to innovate and compete while maintaining a balance among the interests of subscribers, shareholders and competitors?

3. Should there be increased regulatory flexibility for the telephone companies in competitive markets?¹⁶

After an extensive public process, the Commission decided to establish a price cap regime. The Commission said:

Price caps allow for more efficient and effective regulation in a number of ways. First, price caps reduce incentives and opportunities for companies to over-invest or misallocate costs. Once caps are established, prices cannot exceed them (apart from the operation of a limited number of exogenous variables), even if the investment base is increased. Second, price caps reduce opportunities to cross-subsidize or engage in anti-competitive pricing, because price changes in one basket cannot be offset by changes in other baskets. Third, price caps provide incentives for telephone companies to be more efficient and innovative, since shareholders assume more of the risks and rewards of business decisions and retain the benefits of higher levels of productivity. Fourth, price caps can eliminate the need for regulatory assessment of investment, expenses and earnings between price cap performance reviews.¹⁷

As noted earlier, a four-year price cap regime was established in 1997. The regime was comprehensively and publicly reviewed and evaluated by the CRTC in 2001. The review included extensive participation by consumer groups; the CRTC made cost awards available to the groups that contributed to the Commission's understanding of the issues. A new four-year regime was put in place with several important differences from the initial price cap regime.

Not perfect

The CRTC's approach to challenges to an existing regulatory scheme show that alternate instruments can be developed and implemented within the existing system. This is not to say that price cap regulation is perfect from the consumer's perspective. For example, the CRTC's review of its first price cap regime found significant problems with the incumbent telephone companies' quality of service:

The [incumbent local exchange carriers] ILECs' unsatisfactory quality of service record during the initial price cap regime indicates that measures must be put in place to ensure that customers receive reliable services of high quality. Furthermore, the Commission is not persuaded that competitive pressures in either the retail or competitor services markets will be sufficient to ensure that ILECs will meet approved service quality standards during the next regime.¹⁸

In addition to quality of service problems, the rates for optional local services such as voice mail and call display rose dramatically during the first price cap regime. These rates had not been capped by the CRTC on the grounds that local competition would prevent undue rate increases. Local competition did not emerge and the incumbent telephone companies followed their incentives and implemented huge rate increases. These services were capped in the second price cap regime.

Concerns were also expressed by consumer groups that the incumbent telephone companies' profits had soared during the first price cap period, reaching levels well beyond what the CRTC would have allowed under earnings regulation. The CRTC ignored this issue, apparently on the grounds that one of the benefits of a price cap system is to provide an incentive for telephone companies to become more efficient and innovative and, as a result, more profitable. Once prices are initially capped at a reasonable level, the CRTC apparently will ignore the companies' profits (unless profits fall to a level where the companies seek permission to raise capped prices at the end of a price cap period.)

Other approaches

Earnings Sharing:

New regulatory approaches other than the CRTC's price cap regime exist. For example, an earnings-sharing mechanism can be introduced into a price cap system. An earnings threshold is set. When the threshold is reached, the additional revenues are shared with customers. The CRTC rejected earnings sharing on the grounds that it "would introduce a number of significant elements of earnings regulation and thereby diminish the advantages of price regulation."¹⁹

Revenue Cap:

A revenue cap is another regulatory approach. Energy conservation is a key driver for the imposition of a revenue cap. The cap "de-couples" the link between profits and increased energy sales so that there is no economic hindrance to the operation of demand side management programs. The objective of the revenue cap mechanism is to focus the efficiency efforts of the regulated utility on cost control rather than giving incentives to the utility to sell more commodity. Typically, under a revenue cap, the utility is allowed some measure of pricing flexibility, but its revenues are capped at a limit usually specific to each rate class. Revenues in excess of the cap are used to reduce rates. The Company pockets all or a share of the cost savings generated during the operation of the cap.

Yardstick or Benchmark Regulation:

Similar in operation to price regulation, cost index mechanisms automatically increase base rates by the application of a specific cost index. The index may be based upon measurements taken from a small group of utilities. The cost index mechanism provides an incentive to attempt to have actual unit costs decrease less than indexed costs.

One variation involves the ability of the utility to earn a premium rate of return if the utility exceeds a set of predetermined standards and a lower rate of return if it doesn't meet those standards. This may be based on a unit cost index based on the cost performance of a control group of utilities.

One advantage of the cost index approach is that it helps overcome problems associated with informational disparities between the utility and the regulator. The index supposedly provides an objective fair measure to re-base the utility revenue requirement.

There are a number of drawbacks or potential implementation problems to the implementation of a cost index approach. The chief difficulty is associated with the fashioning of an index that bears a verifiable historical relationship with changes to utility unit costs. The index must involve costs that are under management control and appropriate base costs and rates must be determined. While the development of a regional utility cost index may be appropriate, it may also be a difficult and complex exercise.

Yardstick PBR has also been employed in place of price and/or revenue caps, to provide appropriate targets for the utility to outperform in order to obtain additional earnings. Essential to the yardstick PBR regulation format is the grouping of peers that face similar external factors associated with their cost of service ad have available similar management tools to deal with them. In Ontario, a Task force on Yardstick PBR identified the following specific benchmarks that might be applied to the numerous local distribution utility companies that were within the jurisdiction,.

These included:

1. Operations and maintenance cost
2. billing and collection costs
3. administration costs
4. capital expenditures
5. losses
6. Return on equity

While such yardstick regulation was proposed for second generation PBR because of lack o f regulatory knowledge concerning the LDCs that made grouping difficult, it was noted that the yardstick system avoids the need for extensive and expensive cost of service studies and evidentiary hearings associated with other forms of regulation²⁰ Another commentator expressed the benefits in the following fashion:

"Yardstick regulation is yet another form of competition in the distribution of power. The fact that more than one distributor can provide electric distribution services in a state, or in several neighboring states allows the regulator to compare the performances of the utilities it regulates to one another as well as to other utilities when it sets rates. While these types of comparisons are sometimes difficult to make, they do provide a check on the reasonableness of the utility's performance, if only because it may fear the results of the comparison²¹."

DSM

Demand side management (DSM) is another regulatory approach. Regulators have tried to reconcile the societal objectives of energy conservation and reduction of harmful emissions with the obvious interest of the energy industry in obtaining greater revenue from selling more product. Two mechanisms have been prominent as regulatory options to incent electricity and natural gas utilities to achieve DSM program goals. The electric revenue adjustment mechanism or lost revenue adjustment mechanism periodically reconciles the utility's actual base revenue to authorized base revenue. It automatically adjusts for revenue losses for DSM or self-generation. The shared savings mechanism gives the utility a bonus equal to a percentage of the savings that result when DSM is chosen over conventional supply side resources.

Self-regulation on a leash

"Self-regulation on a leash" is an important alternate instrument. Self-regulation on a leash allows regulated companies to self-regulate – but only with regulatory oversight. The regulator hands-off certain tasks to the regulated industry. In some cases the self-regulatory body may be required to return to the regulator for approval of decisions. In other cases, individuals unhappy with the self-regulatory decision can ask the regulator to consider their case. The self-regulatory body typically includes representation from all stakeholders, including consumers.

The CRTC Interconnection Steering Committee (CISC) is an example of self-regulation on a leash. According to the CRTC, CISC is an "organization established by the CRTC to assist in developing information, procedures and guidelines as may be required in various aspects of the CRTC's regulatory activities." CISC was initially established to identify requirements and develop the systems required to facilitate local competition. CRTC staff chairs CISC; the Committee and working groups are made up of industry representatives. Consumer representatives participate in some of the groups. And now for the leash:

When the CISC has completed work on an item, a report will be prepared for transmission to the Commission, providing details of the conclusions reached as well as recommendations for Commission approval.²²

The Cable Television Standards Council is another example of self-regulation on a leash. The Council was established by cable television companies with the CRTC's blessing to deal with consumers' complaints about quality of service. The Council includes a consumer representative. And now for the leash: consumers could ask the CRTC to hear their case if they were not happy with the Council's decision. The ability of consumers to seek redress from the Commission has recently vanished in light of the Commission's deregulation of cable rates, a development that may explain the withdrawal of two large cable companies, Shaw and Videotron, from the Council. The Commission deregulated cable rates on the grounds that vigorous and sustainable competition to cable companies is being provided by direct-to-home satellite services, a conclusion that many consumers may dispute. In any event, the Council was an excellent example of self-regulation on a leash. Its current status may be the next stage in the transition from monopoly to competitive markets – that is, the leash can be severed when sustainable competition arrives.

Voluntary Codes

As the above discussion of self-regulation on a leash illustrates, consumers believe that effective alternate approaches must address potential remedies in the event that the public interest has not been served by the mechanism chosen. The considerable emphasis on the withdrawal of government regulatory supervision of industry which crested in Canada with the various fiscal crises of federal and provincial governments in the 1990s, led to the popularizing of industry self regulation in the form of voluntary codes. The considerations appropriate to the consideration and adoption of such codes have been well canvassed in government and consumer literature²³. A review of the experience to date is beyond the scope of this paper. We note that any successful implementation contemplates a set of checks and balances that may be as rigorous as the regulation they replaced. As well, ironclad mechanisms for monitoring and policing have to be established which may meet with considerable dissatisfaction by the newly self- regulated. The potential decrements in the form of risks associated with such a process may well outweigh any potential benefits and governments should be loath to prescribe such an instrument as a standard one-size- fits- all approach.

Consumer education

EACSR's Mr. Lussier asked in a recent speech:

If consumers want greater choice and faster access to the flood of new science-driven amenities that are on the horizon, will they have to be prepared to assume greater risk and take more personal responsibility for staying informed and for the choices they make [?]²⁴

As markets change from a single provider of services to multiple providers of the same services, consumers will need to be educated about the choices that are available. Without adequate consumer education, consumers will find it difficult to make informed choices, perhaps paying more than they should to satisfy their needs. In addition, they will be exposed to competing claims, creating confusion and uncertainty. New entrants may be thwarted because consumers may continue to purchase from the incumbent due to consumers' inertia and lack of knowledge about the new marketplace. Incumbents may take advantage of this situation, offering lower prices to customers that they attract from the new entrants than they do to their loyal customers.

It would be a significant error to conclude that, because the Information Highway has expanded the range of information available to most consumers, this availability has transformed the marketplace into a level playing field of buyers and sellers. There has been significant increase in the volume of the information on products and services available to consumers as a result of Internet access. However, there are still many fundamental issues of rights and remedies still to be resolved in e-commerce. A quick perusal of the intake files of the Competition Bureau would also clearly reveal that marketplace failure including problems of misrepresentation and customer service did not vanish with the arrival of the Internet. As well, reliance upon the Internet for marketplace consumer protection consigns over a third of Canadians without Internet access to second- class status as consumers.

Consumer education is an alternate instrument in the world of emerging competition. The regulatory system must contribute to the education of consumers. All the smart regulation in the world will come to naught if consumers do not have the information to make informed choices in the marketplace.

The public interest

We conclude by addressing EACSR's sixth over-arching issue: defining the public interest. The notion of the public interest often assumes there is a general interest of the community as a whole that can be affected by the actions of governments, including regulators. This notion may suffice as a convenient touchstone. It does have relevance in the sense that there is a foundation of overall societal objectives associated with concepts such as access to quality health care, and education, provision of a healthy and safe environment, adherence to the law and the Charter of Rights that should underpin all forms of regulatory governance.

The collision of values within policy making and regulatory governance takes place on the road to attempting to reconcile specific actions based on current exigencies with the furtherance of these founding objectives. The approach taken on this road is usually very much a product of input from stakeholders. If a particular stakeholder group has ascendancy, regulatory decision making may reflect only the goals of that group. For example, the recommended policy approach associated with the development of the Information Highway was often very different depending on the stakeholder. Commercial interests were focussed on marketing potential and technological efficiencies, consumers wanted access at reasonable cost, other public interests focussed on access as a social, educational and community building tool. All stakeholders undoubtedly felt that they were urging strategies that were in the "public interest" but without mechanisms to carefully obtain and weigh input in policy development, the better-resourced stakeholders would prevail.

The challenge for the regulatory system is to balance the unique and contending interests in the making of specific decisions and policy that, in the end, will help achieve the overall societal or statutory objectives. This is no easy task since, as we have indicated, these stakeholder interests often compete with each other, particularly in terms of the resolution of who should bear the economic costs of particular decisions. Regulators must frequently resolve an economic problem involving the allocation of scarce resources with unlimited demands on them. The regulator has to reconcile the ends with the limited means²⁵. When this is done and the unique interests are balanced, one can say the decision making process is more likely to have served the public interest.

The regulatory system is where the unique interests must come together to strike a balance. This is an essential feature of "smart regulation" And hence the barriers to smart regulation must be removed by furthering specific operational policies. These include transparency, accountability, competence, independence, and resources for the economically disadvantaged to participate.

¹ Speech, Public Policy Forum Dinner, Toronto, September 16, 2003.

² Ibid.

³ Ibid.

⁴ Ibid., Emphasis in original.

⁵The Second Generation of Regulatory Reforms , Scott H Jacobs, Head of Program on Regulatory Reform, Public Management Service, OECD, October 22, 1999.

⁶Regulating in the 21 st Century: Global Changes and Implications for Regulation , September 2003.

⁷A Comparative Analysis of Residential Telephone Service: 1992-2002 , Public Interest Advocacy Centre, September 2003, p. 2.

⁸ Telecom Decision CRTC 2003-62, Allstream v. MTS – Sherbrook Central Office , September 19, 2003, paragraph 31.

⁹ Telecom Decision CRTC 2003-49, Call-Net Enterprises Inc. – Request to lift restrictions on the provision of retail digital subscriber line Internet services , July 21, 2003.

¹⁰ Public Hearing to Review the Guidelines for Appropriate Conduct between Centra Gas Manitoba and Its Affiliated Companies, Order No. 110/96, Manitoba Public Utilities Board, p. 25.

¹¹ Regulatory Reform, Economic Analysis and British Experience, Mark Armstrong et al, MIT Press, Cambridge, Mass. 1997.

¹² Gaetan Lussier, Chair, External Advisory Committee on Smart Regulation, speech, Public Policy Forum Dinner, September 16, 2003.

¹³ Telecom Decision CRTC 2003-78, Modifications to the procedures for Telecom Public Notice CRTC 2003-8, Review of price floor safeguards for retail tariffed services and related issues, November 20, 2003, paragraph 35.

¹⁴The Second Generation of Regulatory Reforms , Scott H Jacobs, Head of Program on Regulatory Reform, Public Management Service, OECD, October 22, 1999.

¹⁵ Ibid.

¹⁶ Telecom Decision 94-19, Review of Regulatory Framework , September 16, 1994.

¹⁷ Ibid.

¹⁸ Telecom Decision CRTC 2002-34, Regulatory Framework for Second Price Cap Period , May 30, 2002, paragraph 74.

¹⁹ Ibid., paragraph 82.

²⁰Report of The Ontario Energy Board Performance Based Regulation Yardstick Task Force, May 18, 1999

²¹Rate Design, Yardstick Competition and Franchise Competition (1999) Harvey Reiter and Christopher Cook

²² Telecom Public Notice CRTC 96-28, Implementation of Regulatory Framework – Development of Carrier Interfaces and Other Procedures , August 1, 1996.

²³ Voluntary Codes, A Guide for their Development and Use, Government of Canada, 1998

²⁴ Gaetan Lussier, Chair, External Advisory Committee on Smart Regulation, speech, Public Policy Forum Dinner, September 16, 2003.

²⁵ Bonbright et al, Principles of Public Utility Rates, PUR inc.1988, foreword