Archive for the 'News' Category
“The CRTC’s well-reasoned decision to deny Bell’s application to acquire Astral addressed concerns of Canadians and consumers about the scope and impact of this transaction.”
(Canada’s largest media union,
the Communications, Energy and Paperworkers Union of Canada)
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“We commend the CRTC for this courageous decision. We believe Canadians should have fair and open access to content”
(Rogers)
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“This is a decision that should not stand. Canadian consumers were told today by the CRTC that they don’t deserve more – more choice, more competition, more Canadian content funding – all of which Bell and Astral committed to with this transaction.”
(George Cope, President and CEO of Bell Canada and BCE Inc.)
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“Evidently, this decision was taken in the best interest of not only the Canadian broadcasting system, but also in the best interest of all Canadian consumers. It demonstrates the CRTC’s desire to ensure healthy competition in the Canadian communications industry and to protect the interests of consumers.”
(Cogeco Cable Inc. CEO)
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On October 18, 2012, in a decision that to be honest surprised me a little (although perhaps it shouldn’t have), the CRTC announced that it was denying BCE Inc’s bid to acquire Astral Media Inc.
The decision is noteworthy for, among other things, its speed (public hearings had only concluded about a month ago), breadth (the decision to block the deal entirely) and a further expression of the CRTC’s apparently reinvigorated focus on the consumer. In this regard, some commentators (see e.g.: here) have noted that the decision is consistent with other recent consumer-oriented initiatives, including upcoming public consultations for a new mandatory wireless code that has started online (with public hearings scheduled to begin in the early new year) and emphasis on consumer access in the CRTC’s recently issued Three Year Plan.
Other CRTC initiatives lately also show its focus on the consumer include the first new interpretation guidelines for the upcoming anti-spam legislation issued last week (which are being criticized by some in the business sector as overly onerous to comply with and impractical in some respects) and stepped up Do Not Call List enforcement in the telemarketing area (e.g., the CRTC’s enforcement action against 85 companies for Do Not Call List violations last spring and exercising more enforcement muscle against offshore deceptive telemarketing – see e.g.: CRTC takes action against telemarketers offering anti-virus software).
In making the announcement earlier today, CRTC Chairman Jean-Pierre Blais said:
“’BCE failed to persuade us that the deal would benefit Canadians,’ said Jean-Pierre Blais, Chairman of the CRTC. ‘It would have placed significant market power in the hands of one of the country’s largest media companies. We could not have ensured a robust Canadian broadcasting system without imposing extensive and intrusive safeguards, which would have been to the detriment of the entire industry.’ The proposed transaction raised substantial concerns related to healthy competition, the concentration of ownership in the television and radio markets, vertical integration and the exercise of market power in an anti-competitive manner. The CRTC was not persuaded that the transaction would have provided significant and unequivocal benefits to the Canadian broadcasting system and to Canadians sufficient to outweigh its concerns.”
Reading some of the recent coverage of the global LIBOR price-fixing investigation made me think about how this case illustrates the sometimes subtle distinction between legitimate and anti-competitive industry “regulation” by associations.
For example, in this particular case, the U.K. Treasury announced today that it had accepted all of the recommendations of an independent review of the LIBOR benchmark, which will include the removal of the British Bankers’ Association (the “BBA”) as the “operational LIBOR administrator” (see also: Libor to be regulated ‘without delay’). LIBOR regulation is, therefore, set to be shifted away from the BBA (a trade association comprised of UK banking and financial services firms) to a new legislatively authorized Financial Conduct Authority.
Specific changes are to include: bringing LIBOR activities within the scope of statutory regulation (Including the submission and administration of LIBOR); creating a new criminal offence for misleading statements in relation to benchmarks, including LIBOR (and amending the language for existing offences); and giving the new Financial Conduct Authority specific power to make rules requiring banks to submit to LIBOR (including a code of conduct).
While the conduct in this specific case, LIBOR and the resulting competitive effects (or potential effects) are all clearly complex, and any wrongdoing not established, the case seemed to me as I said to raise the issue of when an association may assume an industry “regulatory” role and when industry association coordination, rules or barriers may raise competition/antitrust concerns.
The Brookings Institution has published a very interesting new article on the proposed acquisition by CNOOC (China National Offshore Oil Corporation) of Nexen in Canada, which discusses, among other things, some of the possible rationales for Chinese interest in unconventional oil assets in Alberta including increasing reserves and production (North America now being the “epicenter” of unconventional upstream oil and gas mergers), a desire to acquire technological and operational expertise to develop China’s own domestic shale gas reserves and to diversify political risk. I thought this was a rather good commentary on the proposed CNOOC/Nexen deal (the Investment Canada Act review for which was recently extended by another 30 days for a national security review). This recent Brookings article also discusses CNOOC’s failed bid for Unocal. For a copy of this Brookings Institution note authored by Erica Downs see: China, Iran and the Nexen Deal.
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In the second of two recent major announcements (the first being yesterday’s release of the CRTC’s inaugural guidelines under Canada’s impending anti-spam legislation – see: here), Canada’s telecom regulator today announced public consultations on a new mandatory wireless code. The thrust of the new consultations appears to be primarily two-fold: to impose guidelines for contracts (e.g., increased clarity of terms, required terms, changes to terms, cancellation, expiry, renewals, etc.) and reduce potential misleading advertising related issues.
While the CRTC has allowed market forces to govern the wireless industry since the early-1990s, this new announcement shows some willingness by the CRTC to regulate Canada’s concentrated wireless sector (albeit at this stage through a mandatory code of conduct). In making the announcement, the CRTC’s Chairman Jean-Pierre Blais said:
“Our goal is to make sure that Canadians have the tools they need to make informed choices in a competitive marketplace. … In the past, Canadians have told us that contracts are confusing, and that terms and conditions can vary greatly from one company to another. We are asking them to assist us in developing a code that will help them better understand their rights as consumers and the responsibilities of wireless companies.”
The CRTC’s Notice of Consultation describes the rationale for the new consultation and code:
“In Telecom Decision 2012-556, the Commission determined that it would be appropriate to develop a code for retail mobile wireless data and voice services (mobile wireless services) to ensure the clarity of mobile wireless service contracts and related issues for consumers. The Commission concluded that consumers need additional tools to better understand their basic rights, as well as their service providers’ responsibilities with respect to mobile wireless services, in order to participate in the competitive market in an informed and effective manner. With this Notice of Consultation, the Commission initiates a proceeding to establish a mandatory code to address the clarity and content of mobile wireless service contracts and related issues … The code developed as a result of this proceeding is intended to provide a clear and concise list of consumers’ rights and service providers’ responsibilities regarding mobile wireless services.”
The following are a few developments from our friends at the Canadian Council on International Law (CCIL):
Winners of the Ronald St. John Macdonald Award
CCIL extends its congratulations to the two student winners of the Ronald St. John Macdonald award: Andréanne Charpentier-Garant (Graduate category) and Alix Tolliday (Undergraduate category). Ms. Charpentier-Grant recently concluded her LLM at Utrecht University, having completed her undergraduate law degree at UQAM. Alix Tolliday is completing a JD at the University of Victoria. Congratulations to both – it was no small thing to win this award, given the quality of the roughly 50 papers we received. (Some good summer reading.)
Both will now present their papers at the CCIL annual conference Nov 8-11. In relation to that conference, we would certainly welcome your registration. Many have already registered and thank you if you are among them. We are looking forward to a terrific event with many notable speakers, including Philippe Sands QC. More information is on the preliminary program at www.ccil-ccdi.ca/ccil-program/.
Canadian Yearbook of International Law
On behalf of the Canadian Yearbook of International Law, I would like to bring to your attention the Yearbook’s Call for Papers for its next volume. That call has been posted on the CCIL website at bit.ly/T4Iggb. I hope you will consider publishing in this excellent venue.
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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October 10, 2012
On October 10, 2012, the Canadian Radio-television and Telecommunications Commission (the “CRTC”) issued new guidelines on Canada’s anti-spam legislation (the Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC) (“Interpretation Guidelines”) and Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation) (“Toggling Guidelines”). These are the first of a series of CRTC guidelines to be issued to facilitate compliance with Canada’s upcoming anti-spam legislation.
Upcoming Canadian Bar Association National Competition Law Section Events:
1. The Reviewable Matters/Unilateral Conduct Committee of the CBA’s National Competition Law Section and the The Pricing Conduct Committee of the International Committee of the ABA Section of Antitrust Law present: Canadian Pricing Law – Wednesday, October 24, 2012 – 12:00 – 1:30 pm ET – 9:00 – 10:30 am PT – Details and Registration.
2. The Economics & Law Committee of the CBA’s Competition Law Section and the ABA’s Economics Committee present: Recent Developments in Two-Sided Markets in US and Canada – Tuesday, October 30, 2012 – 12:00-1:15 pm ET – 9:00-10:15 PT – Details and Registration.
3. The Criminal Matters Committee of the CBA’s Competition Law Section and the ABA Section of International Law present: Cartel Enforcement in Smaller Jurisdictions – Issues and Challenges – November 6, 2012 (1 p.m. – 2:30 p.m.) – Details and Registration.
For more information see: National Competition Law Section.
The National Competition Law Section of the Canadian Bar Association has published a new issue of its Competition Law Review (which is now also available in a searchable format online).
This new issue includes articles on The Competition Act of 1986, Competitor Agreements: Interpreting Criminal Conspiracy in a Blended Criminal-Civil Regime, Section 36 of the Competition Act, Abuse of Dominance in Canada: Reflections on 25 Years of Section 79 Enforcement, The Treatment of Vertical Price Restraints under the Competition Act, The Evolution of Vertical Distribution Practices under the Competition Act, 25 Years of Merger Review in Canada, The Evolution of Canada’s Pre-Merger Notification Regime (1986-2012), Foreign Investment Screening under Canada’s Investment Canada Act, Misleading Advertising and Deceptive Marketing Practices under the Federal Competition Act, A Quarter Century of the Competition Tribunal and Economics and Canadian Competition Policy.
From the CBA:
“Volume 25, Issue 2 is a special edition devoted to a retrospective on 25+ years of the Competition Act and the Investment Canada Act. Leading members of the bar, including four former Commissioners, have authored high quality papers taking an in-depth look at the substantive and procedural development of those statutes. We trust that you will find them informative, thought-provoking and enjoyable.”
For a copy see: Canadian Competition Law Review (Fall 2012)
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For more information about our regulatory law services contact us: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
