Telecom Regulatory Policy CRTC 2019-269

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References: 2018-422, 2018-422-1, 2018-422-2 and 2019-269-1

Ottawa, 31 July 2019

Public record: 1011-NOC2018-0422

The Internet Code

The Commission establishes the Internet Code (the Code), a mandatory code of conduct for providers of retail fixed Internet access services for individual customers. The Commission is creating the Code to make it easier for Canadians to understand their Internet service contracts, to prevent bill shock from overage fees and price increases, and to make it easier for Canadians to switch Internet service providers (ISPs).

The Code, among other things, ensures that customers will benefit from increased clarity in their interactions with ISPs; from clearer prices, including for bundles, promotions, and time-limited discounts; and from increased clarity around service calls, outages, security deposits, and disconnections.

The Code will take effect on 31 January 2020 and will apply in full to all renewed, amended, or extended contracts. Certain provisions related to the clarity of communication will also apply to existing contracts to ensure that customers have the necessary information to make informed decisions.

Upon taking effect, the Code will apply to large facilities-based ISPs that provide retail fixed Internet access services: Bell Canada (including Bell MTS, NorthernTel, and Télébec), Cogeco, Eastlink, Northwestel, RCCI, SaskTel, Shaw, TCI, Videotron, and Xplornet.

Introduction

The Commission hereby establishes the Internet Code (or the Code), a mandatory code of conduct for providers (i.e. Internet service providers [ISPs]) of retail fixed Internet access services (Internet Services). Footnote 1 The Code sets out new requirements for large facilities-based ISPs to (i) ensure that consumers are empowered to make informed decisions about Internet Services, and (ii) contribute to a more dynamic marketplace by making it easier for consumers to take advantage of competitive offers. The Code advances the telecommunications policy objectives set out in paragraphs 7(a), (b), (f), and (h) of the Telecommunications Act (the Act). Footnote 2 The Internet Code is set out in the Appendix to this decision.

Regulatory background

The Commission regulates the Canadian telecommunications industry with the goal of fulfilling the Canadian telecommunications policy objectives set out in section 7 of the Act (the policy objectives), which include rendering reliable and affordable telecommunications services of high quality accessible to Canadians in all regions of Canada, responding to the economic and social requirements of users of telecommunications services, fostering increased reliance on market forces for the provision of telecommunications services, and ensuring that regulation, where required, is efficient and effective. The Commission is required to exercise its powers and perform its duties under the Act in accordance with the 2006 Policy Direction, Footnote 3 which requires it to rely on market forces to the maximum extent feasible as the means of achieving the policy objectives. When the Commission must rely on regulatory measures to achieve the policy objectives, the 2006 Policy Direction requires the Commission to use regulatory measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary to meet the policy objectives. When the Commission implements non-economic regulatory measures (such as industry codes or participation in the Commission for Complaints for Telecom-television Services Inc. [CCTS]), the 2006 Policy Direction requires the Commission to implement these measures in as symmetrical and competitively neutral a manner as possible. While a new policy direction was recently issued under the Act (the 2019 Policy Direction), Footnote 4 this decision is not subject to it. Nonetheless, in reaching its determinations in this decision and in establishing the Code, the Commission took into consideration the principles set out in the 2019 Policy Direction, which include promoting competition, affordability, consumer interests, and innovation.

Commission’s approach to forbearance

The vast majority of Internet Services are forborne from rate regulation under section 34 of the Act. However, the Commission retains its regulatory powers under sections 24 and 24.1 and subsections 27(2) and 27(4) of the Act for Internet services. Sections 24 and 24.1 permit the Commission to impose conditions on the offering and provision of any telecommunications service by a Canadian carrier or by a non-carrier (also referred to as a reseller), respectively. Subsections 27(2) and 27(4) prohibit carriers from unjustly discriminating or giving an undue preference in the provision of telecommunications services or the charging of rates. Over the years, the Commission has imposed various conditions on ISPs pursuant to sections 24 and 24.1 of the Act. Examples of social and consumer policy obligations imposed pursuant to these sections of the Act can be found in the accessibility policy (Broadcasting and Telecom Regulatory Policy 2009-430), the CCTS policy and decisions (Telecom Decision 2007-130, Telecom Regulatory Policy 2011-46, and Broadcasting and Telecom Regulatory Policy 2016-102), the 30-day cancellation policy (Broadcasting and Telecom Regulatory Policy 2014-576) and the associated cancellation refund policies (Telecom Decisions 2016-171 and 2018-194), and the non-carrier regulatory obligation policy (Telecom Regulatory Policy 2017-11).

Internet services subject to rate regulation

As an exception to the general forbearance from the regulation of Internet Services, some of Northwestel Inc.’s (Northwestel) Internet Services are subject to rate regulation and tariffs. In Telecom Regulatory Policy 2013-711, the Commission, among other things, decided to regulate Northwestel’s rates for retail Internet and Ethernet Wide Area Network services in terrestrially served communities in light of its findings that Northwestel has significant market power in the markets for these services. The Commission has imposed other consumer protection measures on services subject to tariffs in recent proceedings, including the 30-day cancellation policy and the cancellation refund policy. In those policies, the Commission directed service providers offering tariffed services to file updated tariffs to reflect the new regulatory requirements.

Commission’s expectations regarding basic telecommunications services

The Commission acknowledged the increasing importance of Internet services to Canadians in Telecom Regulatory Policy 2016-496, in which the Commission defined fixed and mobile wireless broadband Internet access services as basic telecommunications services. The Commission further deemed that Canadians will increasingly need to access broadband Internet access services to effectively participate in the digital economy and society. The Commission also found it necessary to establish several new expectations for ISPs to address customer complaints related to bill shock and contract clarity. Specifically, the Commission established an expectation that all ISPs that provide broadband Internet Services to individual and small business customers (i) ensure that their contracts and related documents clearly explain, in plain language, certain contract terms; Footnote 5 and (ii) provide account management tools that enable customers to monitor their data usage, and plain-language information on the data usage associated with common online activities. The Commission stated that the tools and information should be accessible to customers with disabilities. The Commission also directed those ISPs to notify their residential and small business Footnote 6 customers who have incurred overage charges of where they can find information about (i) the account management tools the ISP offers, (ii) the data usage associated with common online activities, and (iii) alternative plans that may better suit the customer’s needs. As directed, the large ISPs identified in Telecom Regulatory Policy 2016-496 Footnote 7 confirmed that they are currently in compliance with all directives laid out by the Commission in that decision, providing various examples, links, and documents as evidence.

Other codes of conduct

To date, the Commission has created mandatory codes of conduct to address customer issues specific to the mobile wireless, television, and home phone markets, but not the Internet service market. These existing consumer codes are the Wireless Code (set out in Telecom Regulatory Policy 2017-200), the Television Service Provider Code (TVSP Code) [set out in Broadcasting Regulatory Policy 2016-1], and the Deposit and Disconnection Code (set out in Telecom Decision 2011-702), respectively. The expectations set out in Telecom Regulatory Policy 2016-496 are similar in content to some of the requirements set out in the Wireless Code and the TVSP Code.

Report on Misleading or Aggressive Communications Retail Sales Practices

In its Report on Misleading or Aggressive Communications Retail Sales Practices, published 20 February 2019, the Commission found that “it is apparent that misleading or aggressive retail sales practices are present in the telecommunications service provider market in Canada. These practices exist in all types of sales channels, including in-store, online, over the phone, and door to door. They occur to an unacceptable degree; they are harming Canadian consumers, in particular vulnerable Canadians; and they are a serious concern for the CRTC.” The Commission considered that the creation of an Internet code of conduct could be one way to strengthen consumer protections to address the occurrences of misleading or aggressive sales practices.

Complaints reporting

The CCTS is an independent organization dedicated to (i) resolving customer complaints about telecommunications and television services, and (ii) administering the Commission’s current codes of conduct, i.e. the Wireless Code, the TVSP Code, and the Deposit and Disconnection Code. The CCTS also receives and reports publicly on complaints from individuals and small businesses about services subject to those codes and about Internet Services.

The proceeding

In Telecom Notice of Consultation 2018-422 (the Notice), the Commission noted the increasing importance of Internet Services to Canadians and the rising number of customer complaints about these services. The Commission set out the preliminary view that it is necessary to establish a mandatory code of conduct to address customer contracts and related issues – including contract clarity, bill shock, and barriers to switching service providers – regarding the Internet Services that the large facilities-based ISPs Footnote 8provide to individuals and small businesses. As a result, in the Notice, the Commission initiated a proceeding (the proceeding) to develop the Internet Code. The Commission called for comments on the need for such a code; its content, application, implementation, administration, enforcement, and promotion; and how its effectiveness should be measured and reviewed. The Commission also set out its preliminary views with respect to key issues in the proceeding. The Commission issued the Internet Code Working Document (the Draft Code) in Appendix 1 to the Notice to provide interested persons with a possible model of an Internet code and to stimulate discussion and debate. The Commission invited interested persons to provide alternative wording, with supporting rationale, where they considered that changes, additions, or removals were necessary. The proceeding included an online consultation to enable individual Canadians to participate easily in the development of the Code. The Commission received comments from 147 participants, including over 110 individual Canadians, as part of the interventions in the proceeding. The Commission also received over 430 comments from individual Canadians as part of the online consultation. In addition, the Canadian Association of the Deaf (CAD), the Canadian National Society of the Deaf-Blind, Inc.; the Deaf Wireless Canada Consultative Committee; and the Deafness Access Advocacy Association Nova Scotia (collectively, CAD et al.) submitted a survey of Deaf, deaf-blind, and hard-of-hearing (DDBHH) individuals regarding their experiences with Internet services and related contracts. The Commission received interventions from Ageing + Communication + Technologies (ACT); Bell Canada; Bragg Communications Incorporated, carrying on business as Eastlink (Eastlink); the Canadian Communication Systems Alliance (CCSA) (including submissions from Cochrane Telecom Services [CochraneTel], Coopérative de Câblodistribution de Sainte-Hedwidge [Coop Sainte-Hedwidge], Diffusion Fermont, DERYtelecom Inc. [DERYtelecom], and Seaside Communications Inc. [Seaside]); the Canadian Network Operators Consortium Inc. (CNOC); the Canadian Association of Wireless Internet Service Providers (Canwisp); Cogeco Communications Inc. (Cogeco); the CCTS; the Competition Bureau; the Conseil provincial du secteur des communications du Syndicat canadien de la fonction publique (CPSC); the Consumers Council of Canada; Distributel Communications Limited (Distributel); the Forum for Research in Policy in Communications; the Government of Yukon; the Independent Telecommunications Providers Association (ITPA); the Internet Society Canada Chapter; the Manitoba Branch of the Consumers’ Association of Canada; the Ministère de la Culture et des Communications du Québec and l’Office de la protection du consommateur du Québec; Primus Management ULC, Quebecor Media Inc., on behalf of Videotron Ltd. (Videotron); le Réseau Fédération de l’Âge d’Or du Québec (FADOQ); Rogers Communications Canada Inc. (RCCI); Rothschild & Co. (Rothschild); Saskatchewan Telecommunications (SaskTel); Shaw Communications Inc. (Shaw); TekSavvy Solutions Inc. (TekSavvy); TELUS Communications Inc. (TCI); l’Union des consommateurs (l’Union); and Xplornet Communications Inc. (Xplornet).

Issues

The Commission has identified the following issues to be addressed in this decision: Need for an Internet code

Application of the Code

Content of the Code

Administration and enforcement of the Code

Implementation of the Code

Promoting awareness of the Code and rights

Review and measuring success

Need for an Internet code

Positions of parties

Several parties, including individual Canadians, consumer groups, some large facilities-based ISPs, and other ISPs, considered it necessary to create an Internet code to respond to customer concerns and further the policy objectives, while some parties opposed the creation of an Internet code. The arguments in support of an Internet code can be summarized as follows: The number of complaints to the CCTS about Internet Services is significant, relates to multiple ISPs, and continues to increase over time. The complaints cover a wide range of issues that an Internet code could address.

The Commission has deemed Internet services to be basic telecommunications services.

The customer experience of accessing the Internet is functionally similar whether customers are using mobile wireless services or Internet Services to do so. As well, customers often purchase Internet Services as part of a bundle of services, including television and mobile wireless services. However, customers of television and mobile wireless services are protected by the TVSP Code and the Wireless Code respectively, but customers of Internet Services are not protected by similar rules at this time.

An Internet code is necessary to better respond to the needs of Canadians with disabilities and the challenges they face with respect to their Internet Service contracts and related issues. Specifically, individual Canadians raised a wide range of issues that they considered an Internet code should address, including the following: the clarity of Internet Service offers, especially those that include discounts or promotions;

the clarity of verbal and written contracts, including contracts that cover bundled services;

the content and format of contracts;

issues related to contract changes, including when such changes should be prohibited and what information must be disclosed prior to the changes;

bill shock due to overage fees, unexpected price increases, and unclear time limits on or changes to promotional prices or discounts;

the cancellation process, including the associated challenges, the amount of early cancellation fees, and the duration of the charging of these fees;

service outages and installations;

security deposits and disconnections; and

the complaint process. Similarly, CAD et al. submitted a survey reflecting the challenges that Canadians with disabilities, specifically DDBHH individuals, have with the clarity of contracts and contract terminology, and with managing data use to prevent bill shock, among others. Several parties, including individuals, the Competition Bureau, CNOC, the CPSC, and FADOQ, considered it essential to establish new rules to ensure that customers know what they will receive when they agree to subscribe to an Internet Service and that they receive what they pay for. The Competition Bureau argued that there is a disconnect between what customers think they are going to receive and what they actually receive as a result of ISPs’ failure to adequately disclose key contract terms and unclear changes to contract terms. Many individual Canadians submitted that they never received a written contract that set out key information, such as the services and prices agreed to. Several indicated that the lack of records of verbal agreements, whether they were making a new contract or changing an existing contract, makes it difficult for them to complain effectively to obtain what they considered to be the terms and conditions they agreed to. The CCTS emphasized the value of rules requiring the effective and clear disclosure of all terms and conditions about prices and services, and when ISPs may change them. CNOC submitted that rules that improve the clarity of contract terms and conditions would enable customers to scrutinize service offerings and the attached terms and conditions, including those associated with material changes to the contract and early cancellation fees. Other parties, including FADOQ, the Government of Yukon, and Rothschild, emphasized the importance of establishing rules that will improve bill management and prevent bill shock, especially for customers in rural and remote regions and for Canadians with disabilities. Rothschild argued that an Internet code should require ISPs to notify customers before they reach their monthly data usage limit to give them time to adjust their usage or their monthly data allowance before accruing overage charges. The Government of Yukon submitted that in that territory, (i) ISP choice is limited, which makes switching ISPs difficult; (ii) unlimited services are unavailable; and (iii) usage charges can be significant and can lead to bill shock. The Government of Yukon suggested that an Internet code should include rules to better protect consumers in the North, including rules related to the disclosure of overage charges and usage notifications. FADOQ and Rothschild highlighted the importance of rules designed to help customers switch ISPs to take advantage of competitive offers, including limits on early cancellation fees and trial periods. Several parties, including Rothschild argued that a trial period is necessary to give customers time to use the service and receive their first invoice. Some large facilities-based ISPs, such as Cogeco, Eastlink, SaskTel, and TCI, argued that an Internet code is not necessary to achieve the policy objectives and respond to customer concerns. Additional arguments raised by various large facilities-based ISPs can be summarized as follows: Existing protections and industry codes are sufficient to address customers’ concerns.

The Internet Service market is competitive; therefore, imposing a mandatory code of conduct on ISPs would amount to disproportionate and unnecessary regulation that would suppress innovation and competition, and harm the market and Canadians.

The number of customer complaints to the CCTS is not significant in the context of the total number of Internet Service subscriptions; thus the complaints are due to specific industry participants and do not demonstrate that there is a systemic issue to be addressed. The Government of Quebec also opposed the creation of an Internet code, arguing that it would be unnecessary and confuse customers in Quebec, who are already protected through provincial contract and consumer protection legislation.

Commission’s analysis and determinations

In the Notice, the Commission set out the preliminary view that the creation of an Internet code would further the policy objectives set out in paragraphs 7(a), (b), (f), and (h) of the Act and is necessary to respond to customer concerns about Internet services and related issues, including contract clarity, the clarity of promotional offers, the prevention of bill shock, and the reduction of barriers to switching ISPs. In Telecom Regulatory Policy 2016-496, the Commission designated Internet services to be basic telecommunications services. The Commission seeks to ensure that all Canadians have access to a world-class communication system. Internet services play an important role in the lives of all Canadians, enabling them to participate in today’s digital economy and to access, for example, health care, education, government, and public safety services. Individual Canadians and consumer groups raised significant concerns regarding various ISPs, which were related to a wide range of issues that the Commission had identified in the Notice as potentially in the scope of an Internet code. This includes contract clarity, bill shock, and barriers to switching ISPs. In particular, the record of this proceeding demonstrates that there is a failure by ISPs to effectively disclose information that is essential to customers understanding all important contract terms. The Commission considers that such failures when offers are made, when contracts are agreed to, and when contracts are changed, have led to significant consumer challenges in making informed choices about Internet services. In addition, the record demonstrates that Canadians with disabilities are experiencing the same challenges as other Canadians with respect to making informed choices about Internet Services, but to a more significant degree, as well as additional challenges such as the clarity of contract terminology or data not being available in American Sign Language/Langue des signes québécoise (ASL/LSQ). The record also demonstrates that some customers are experiencing bill shock. In this regard, the Commission noted in the 2018 Communications Monitoring Report (CMR) that individual Canadians paid over $94 million in overage fees in 2017. The Commission acknowledges the arguments by CAD et al. that Canadians with disabilities find it difficult to manage their data use to prevent bill shock. A number of customers also seem to be experiencing challenges understanding their rights regarding service cancellations, outages, installation, and disconnection, as well as security deposits. The CCTS’s reports, which span the period from 2008 to 2018, demonstrate that the number of complaints it receives about Internet services is significant and is increasing over time. The CCTS stated that over the last five years, complaints related to Internet Services have increased by 170%, compared to an increase of 25% for mobile wireless service complaints. As well, the complaints relate to multiple ISPs and address a wide range of issues in the scope of the Draft Code. The Commission has created consumer codes for mobile wireless and television services, but not for Internet Services, leading to fewer protections for customers regarding Internet Services than mobile wireless or television services. Since the Commission has designated Internet services as basic telecommunications services, it would be appropriate to consider creating an Internet code. The Commission has found the Wireless Code to be effective in meeting its objectives, which are to make it easier for customers to obtain and understand the information in their mobile wireless service contracts, to establish consumer-friendly business practices for the mobile wireless service industry where necessary, and to contribute to a more dynamic mobile wireless service market. The Commission is of the view that similarly, an Internet code would be effective in making it easier for customers to obtain and understand the information in their Internet service contracts, establishing consumer-friendly business practices for the Internet service industry where necessary, and contributing to a dynamic Internet service market. Although customers can submit complaints to the CCTS about Internet, mobile wireless, home phone, and television services, in situations where there is no consumer code which the CCTS administers, the CCTS’s mandate in respect of such complaints is limited to enforcing existing contract terms. If the Commission were to establish an Internet code that would be administered by the CCTS, the CCTS could apply it when resolving complaints. This would ensure that ISPs, in addition to complying with their Internet service contracts, meet other minimum standards deemed necessary by the Commission. The creation of an Internet code would also further the implementation of the policy objectives set out in paragraphs 7(a), (b), (f), and (h) of the Act, that is, rendering reliable and affordable telecommunications services of high quality accessible to Canadians in all regions of Canada, responding to the economic and social requirements of users of telecommunications services, fostering increased reliance on market forces for the provision of telecommunications services, and ensuring that regulation, where required, is efficient and effective. The Commission considers that an Internet code would provide much-needed certainty and clarity to ISPs and many customers of Internet services across Canada, insofar as it relates to the offering and provision of such services. An Internet code would address issues where market forces in the telecommunications market have failed to sufficiently protect Canadian customers and responds appropriately. Adopting the Code will improve the conditions in which Canadians can access and benefit from these basic telecommunications services. The creation of an Internet code would also be consistent with the 2006 Policy Direction. Specifically, the 2006 Policy Direction requires that in exercising its powers and performing its duties under the Act, the Commission should (i) rely on market forces to the maximum extent feasible as the means of achieving the telecommunications policy objectives, and (ii) when relying on regulation, use measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary to meet the policy objectives. When relying on regulation, the Commission should also use measures that (iii) if they are not of an economic nature, to the greatest extent possible, are implemented in a symmetrical and competitively neutral manner. The Commission considers that individual Canadians, consumer advocacy groups, and certain ISPs have identified significant customer concerns related to Internet Services that market forces alone have not been sufficient to address to date, and market forces cannot be relied upon to address these issues going forward;

the creation of an Internet code that establishes new rules and targets specific customer concerns would be efficient and proportionate to its purpose. In this regard, each rule and its application (to ISPs, consumers, and contracts) must also be efficient and proportionate to its purpose; and

the creation of an Internet code is not an economic measure; thus, to the greatest extent possible, it should be implemented in a symmetrical and competitively neutral manner. In light of all the above, the Commission determines that it is necessary to create the Internet Code, to be imposed using its powers pursuant to sections 24 and 24.1 of the Act, so that customers will be better informed of their rights and responsibilities as they relate to offers and contracts with ISPs.

Application of the Code

Application to different business models and technologies

Positions of parties

Parties, including individual Canadians, generally agreed with the Commission’s preliminary view that the Internet Code should apply to all Internet Services. The CCTS requested that the Code and the Commission’s related decision be clear that the Internet Code will also apply to fixed wireless and satellite services;

should not apply to services governed by the Wireless Code and should apply to Internet Services (i) sold on a stand-alone basis or in a bundle of services, and (ii) whether they are agreed to in person, over the phone, or over the Internet; and

should be business model- and technology-agnostic, given that ISPs may change business models at any time and that technologies evolve over time. Business models include the basis on which the service is sold, such as on a fixed-term or indeterminate basis. The technology refers to the means used to deliver the service, such as fibre optic, cable, digital subscriber line (DSL), fixed wireless, and satellite direct-to-home (DTH). With respect to the Code being business-model-agnostic, Eastlink argued that an Internet code should apply only to fixed-term contracts and not to indeterminate contracts, similar to the TVSP Code’s application. Eastlink argued that the exclusion of indeterminate contracts from the full application of the Code would reduce the burden of compliance for ISPs.

Commission’s analysis and determinations

The Act requires the Commission to exercise its powers to ensure that the policy objectives are fulfilled in the exercise of its powers and performance of its duties. Since the issuance of Telecom Order 99-592, the Commission has not regulated retail Internet services as closely as it regulates other telecommunications services, having found in that order that there is sufficient competition to protect the interests of users of Internet services. However, the Commission has retained its powers under sections 24 and 24.1 and subsection 27(2) of the Act to ensure that it has the tools necessary to address instances where market forces alone are not ensuring that the policy objectives are being met. The Commission notes that many Canadians access the Internet from home using a fixed Internet connection or a mobile wireless service. Footnote 9 Many mobile wireless data services include a combination of voice, text, and/or data services and are accessed via devices such as smartphones, smart watches, and tablets or are mobile Internet services, which are generally limited to data services accessed via devices such as mobile Internet hubs, sticks, or keys, or MiFi devices. Mobile wireless data services are subject to the Wireless Code. Thus, while the Wireless Code applies to mobile wireless data services, it does not apply to Internet Services. The Wireless Code was imposed on certain wireless service providers (WSPs) under section 24 of the Act. Both mobile wireless data services and fixed Internet access services are regulated pursuant to the Act and must satisfy the policy objectives of the Act and be consistent with the 2006 Policy Direction. Given this regulatory context and on the basis of the record of this proceeding, the Commission considers it necessary at this time to impose additional measures on ISPs for customers, using its powers under section 24 of the Act. In light of the above, the Commission determines that the Internet Code will apply to Internet Services (i) whether they are offered through fixed-term or indeterminate contracts, (ii) regardless of the technology or business model of the ISP, (iii) that are sold on a stand-alone basis or in a bundle of services, and (iv) whether they are agreed to in person, over the phone, or over the Internet. For clarity, the Commission notes that the Internet Code will not apply to contracts that are governed by the Wireless Code. With respect to Eastlink’s arguments, the Commission notes that the majority of contracts for Internet Services are indeterminate and that excluding indeterminate contracts from the full application of the Code would result in the majority of customers not benefiting from the protections offered by the Code. Moreover, there is no evidence on the record that the burden of compliance on ISPs would be unreasonable.

Application across Canada

Positions of parties

Many parties, including the CCTS and consumer groups, supported the Code applying in all regions of Canada to ensure that it can benefit Canadians wherever they live. Various parties, depending on the provinces/territories in which they operate, considered that ISPs are subject to federal rules (i.e. regulation by the Commission) as well as provincial/territorial laws. In adopting the Internet Code, the Commission should avoid conflicts with existing laws and ensure consistency across the various protections. Canwisp and CNOC argued that overlap between the Internet Code and provincial law was acceptable, so the Commission should not carve out areas of the Code’s application. Rather, the Code should apply universally regardless of location of operation. Certain interveners, notably TCI and Xplornet, and to a lesser extent Bell Canada, commented on the Commission’s constitutional authority to impose the Internet Code, its interaction with related provincial consumer protection laws and the constitutionality of those consumer protection laws. They argued that federal law, including an Internet code imposed by the Commission under the Act, exclusively applies to ISPs and their customer/contractual relationships. TCI argued that this is the case regardless of whether there is a conflict or inconsistency with provincial consumer protection legislation. Accordingly, they argued that the Commission should declare its regulatory regime, including the Code, to be the sole governing authority over ISPs. Eastlink also submitted that, if an Internet code were created, it should take precedence over provincial consumer protection legislation. L’Union argued that TCI’s position regarding exclusive federal authority, was at odds with recent Supreme Court jurisprudence favouring a cooperative approach to determining constitutional authority. The Government of Quebec argued that an Internet code is unnecessary and will confuse customers in Quebec, who are already protected through provincial contract legislation. Videotron argued that some ISPs did not comply with applicable consumer protection laws, so the Commission could not rely on those regimes to protect customers in those areas. The Government of Yukon submitted that provisions of the Draft Code did not appear inconsistent with Yukon legislation.

Commission’s analysis and determinations

The same issue regarding whether the Wireless Code should apply across Canada in light of consumer protection legislation in force in certain provinces or territories arose in the context of the decisions to impose the Wireless Code (Telecom Regulatory Policy 2013-271) and the revised Wireless Code (Telecom Regulatory Policy 2017-200). The Commission’s position was that there was no evidence of serious conflict between the Wireless Code and provincial/territorial consumer protection laws, or the frustration of the Wireless Code’s objectives by these laws. Further, the Commission’s position was that the Wireless Code takes precedence over conflicting provincial legislation, consistent with general constitutional principles of interpretation. At present, some provincial/territorial legislation (in particular, consumer protection legislation) has been adopted that may apply to Internet service contracts. Some parties argued that this legislation is constitutional, according to the division of powers between the federal Parliament and provincial/territorial legislatures, while other parties argued that it is not. The record of this proceeding, which includes complaints to the CCTS, indicates that customers across Canada are experiencing challenges with their Internet service contracts and related issues, despite the existence of provincial/territorial consumer protection legislation. As noted above, one of the objectives of the Code is to further the policy objectives set out in paragraphs 7(a), (b), (f), and (h) of the Act. Another objective of the Code is to establish consumer-friendly business practices that would, among other things, require ISPs to provide customers with easy-to-understand contracts. Applying the Code across Canada would ensure that the Code provides a uniform baseline of protection to customers, regardless of whether they may otherwise have the benefit of protections at other levels of government or by other agencies. In implementing regulatory measures, the Commission must ensure that it is acting within federal constitutional jurisdiction over telecommunications undertakings rather than assessing whether provincial/territorial legislatures or other agencies are acting within theirs. The substance of the Code is the relationship between customers and ISPs in the context of the ISPs’ role of offering and providing Internet Services. The Code is imposed as a condition of offering and providing such services. This parallels how the Wireless Code governs the relationship between customers and WSPs. Both represent the valid exercise of delegated federal constitutional authority over telecommunications undertakings. Nevertheless, where possible, the Commission has sought to avoid creating direct conflicts with other legislative regimes. Accordingly, the Commission determines that to ensure that customers can benefit from the Internet Code regardless of which region of Canada they live in, the Code will apply across Canada. In light of the Commission’s delegated powers under the exclusive federal constitutional authority over telecommunications undertakings, the Code will apply regardless of any provincial/territorial consumer protection laws and will take precedence over conflicting provincial/territorial legislation.

Application to customers and consumers

Positions of parties

FADOQ and l’Union argued that parts of the Code should apply to consumers in general (i.e. individuals who are not currently ISP customers). In this regard, l’Union proposed changing the wording of several sections of the Code to change the term “customer” to “consumer,” since many of the Code’s provisions appear to deal with situations that arise prior to the Internet service contract being entered into, including provisions on the clarity of service offers. The CCTS noted that it could not administer rules that apply to non-customers, since its procedural code and mandate are limited to responding to complaints from ISP customers.

Commission’s analysis and determinations

In the Notice, the Commission was of the preliminary view that the Internet Code should be administered by the CCTS. To that end, the Commission considers that all rules set out in the Internet Code should be aligned with the CCTS’s current mandate to enable the CCTS to effectively administer the Internet Code and for the Code to meet its objectives. Footnote 10 It is appropriate to limit application of the Code to individuals who may use the recourses offered to them by the CCTS to resolve complaints, who are customers (i.e. persons with an existing contract at the time of the complaint), not consumers in general. In this regard, with respect to offers and other pre-sale activities, any applicable rules will be relevant only for individuals who enter into a contract. To the extent that a customer has a complaint regarding a mismatch between the offer and the contract, the customer will be able to file a complaint to the CCTS to address such matters, once the customer has received a copy of their contract. Accordingly, the Commission determines that the Internet Code will apply to ISP customers, not consumers in general.

Application to individuals and small businesses

Positions of parties

While parties agreed that the Internet Code should protect individual customers, they disagreed strongly on whether the Code should apply to small business customers. In the Notice, the Commission defined a small business as one whose average monthly telecommunications bill is under $2,500. The CCTS has the same definition for what constitutes a small business. CNOC, consumer groups, and the Government of Yukon generally agreed that the Code should apply to small business customers for the reasons set out in the Notice, namely that small businesses, through their size and purchasing power, face the same challenges as individuals. The CCTS submitted that its complaint data suggest that the Internet Code would benefit small business customers. Complaints from small businesses about Internet Services are within the CCTS’s mandate, and the CCTS reports on such complaints each year. In its most recent annual report, the CCTS concluded 494 complaints from small business customers regarding home phone, mobile wireless, Internet, and television services combined, representing 3.7% of complaints. The CCSA noted that most of its members, which are smaller ISPs, stated that they generally treat individual and small business accounts in the same manner. Coop Sainte-Hedwidge and Diffusion Fermont echoed that there are no functional differences between their individual and small business contracts. Some ISPs, such as DERYtelecom, Seaside, and Xplornet, submitted that some business customers subscribe to individual service contracts since those contracts meet their needs. Most of the large facilities-based ISPs (Bell Canada, Cogeco, Eastlink, RCCI, SaskTel, Shaw, TCI, Videotron, and Xplornet) opposed the Internet Code’s application to small business customers. They argued that the needs of small business customers are different from those of individuals and that service delivery is more complex for small businesses. They also generally argued that there is not a sufficient number of complaints to the CCTS to prove that small business customers need the protections that individuals need. Most ISPs generally argued that some small business contracts are significantly different from individual contracts regarding the composition of the services offered. Canwisp submitted that small business customers may have greater speed, capacity, and redundancy needs than individual customers. CochraneTel and Seaside supported this view regarding bandwidth requirements. ISPs generally argued that small business contracts are more likely than individual contracts to have the following: fixed terms; early cancellation fees and installation fees, which are also more likely to be set at a higher level; automatic renewal of the contract at the end of the term (and that renewal is more likely to be for a longer term); higher prices, guaranteed for the term or subjected to pre-defined increases; greater speed, capacity, redundancy, and bandwidth requirements; a specific quality of service; and different standards and needs regarding customer support. Cogeco, SaskTel, Shaw, and TCI proposed changes to the CCTS’s definition of small businesses on the basis that it does not appropriately capture the businesses that are similar to individuals to which the Internet Code should reasonably apply. These parties argued that the current definition that the CCTS uses in assessing whether it can accept a complaint captures businesses that have complex, custom installations, sometimes requiring the use of extensive infrastructure or expensive specialized equipment. Some ISPs, such as Bell Canada, TCI, and Xplornet, stated that the rules on early cancellation fees as set out in the Draft Code are not workable for small business contracts. Eastlink, TCI, and Xplornet argued that limiting early cancellation fees for small businesses would impede ISPs’ ability to recover capital costs in fixed-term contracts. Cogeco, Shaw, and Videotron argued that small business contracts require higher early cancellation fees than individual contracts, since small business contracts are more likely to be longer fixed-term contracts (often exceeding two years). RCCI indicated that if the Commission were to impose restrictions on early cancellation fees, it would negatively affect competition and investment in the wireline business service market. RCCI took issue with limiting the time period during which they could charge small businesses an early cancellation fee, stating that if ISPs are limited, in effect, to offering 24-month contracts and subject to a maximum early cancellation fee of only $50, they would not be able to recuperate their large upfront costs. Bell Canada and RCCI added that it is important to look at how early cancellation fees are calculated when contracts are automatically renewed. Canwisp noted that ISPs may need to enter into fixed-term wholesale supply arrangements to serve small business customers, which affects the types of terms that ISPs can offer to those customers.

Commission’s analysis and determinations

The Commission notes that all parties agreed that the Internet Code should apply to individual customers; however, there was significant disagreement as to whether the Code should apply to small businesses. Most ISPs considered that the CCTS’s definition of small business works in the context of mobile wireless services and the Wireless Code, but not in the context of Internet Services or the Internet Code. In the mobile wireless service market, small businesses enter into the same contracts as individuals. In contrast, in the Internet Service market, many small businesses enter into contracts that are distinct from those for individuals. The types of services subscribed to, the scale of the necessary installation and associated costs, as well as terms of the contracts, including the scale of the early cancellation fees, can significantly differ, according to submissions by ISPs. It appears that many small businesses, as captured by the CCTS’s current definition, do not face the same issues as individual customers of Internet Services and vary significantly in size, needs, and purchasing power. The Commission reiterates, as it determined in the Wireless Code Review (which led to Telecom Regulatory Policy 2017-200), that any review of the CCTS’s definition of a small business would be better suited to the next review of the CCTS, and that this issue is out of the scope of the current proceeding. Further, the record of this proceeding is not sufficient to determine if and how the definition should be changed. Accordingly, the Commission determines that the Internet Code will not apply to small business customers at this time. However, small businesses will continue to benefit from the right to complain to the CCTS about their particular contract terms with their ISPs or with respect to certain Commission policies, such as the 30-day cancellation policy.

Application to ISPs

Positions of parties

While parties generally agreed with the Commission’s preliminary view that the Internet Code should, at a minimum, apply to the large facilities-based ISPs, most consumer groups and large facilities-based ISPs argued that the Code should also apply to other ISPs, including not-for-profit ISPs, co-operatives, and Indigenous and municipally owned ISPs, or smaller ISPs that are not affiliated with the large facilities-based ISPs. In contrast, other ISPs considered that the Code should apply only to the large facilities-based ISPs. Other ISPs generally argued that either the Code should not apply to them, or if the Commission were to apply the Code to them, it should hold a distinct proceeding to examine the applicable issues in more detail. In this regard, non-facilities-based ISPs requested that the Commission examine underlying wholesale Internet service contracts to address issues related to the passing on of customer protections. SaskTel submitted that it was involved in relatively few Internet service complaints to the CCTS and argued that the Internet Code should apply only to ISPs involved in the most complaints to the CCTS or to all ISPs equally. In response, CNOC submitted that many complaints to the CCTS reflect issues with underlying wholesale services over which non-facilities-based ISPs have no control. TekSavvy raised challenges associated with wholesale service contracts that may affect service delivery to retail customers and ISPs’ ability to meet Internet Code obligations, and that may be a significant source of the complaints SaskTel referred to. Parties generally considered that the Internet Code should apply to Northwestel to benefit its customers. The Government of Yukon submitted that the Internet Code should apply to all large facilities-based ISPs and that Northwestel must be included in this category as the dominant provider of Internet services in Yukon. CNOC submitted that rate regulation is designed to protect customers in regions deemed not sufficiently competitive. Customers who purchase regulated services offered predominantly by a large carrier, such as Northwestel, should benefit from the protections that an Internet code provides. CNOC argued that there is no valid justification for exempting Northwestel from the Code. Bell Canada submitted that since Northwestel’s Internet services are regulated, the Code would create unnecessary administrative burden for Northwestel with little benefit. However, Bell Canada indicated that if required, Northwestel is prepared to file updated tariffs and implement the Code within nine months. The CCTS noted that certain of Northwestel’s Internet service rates are regulated, and the CCTS’s mandate includes only forborne (unregulated) retail telecommunications services provided by participating service providers. As a result, the CCTS cannot administer the Code with respect to Northwestel’s customers. Several parties, including Quebecor, Shaw, and l’Union, noted that the Wireless Code applied immediately to all WSPs that provide mobile wireless services in the scope of that code, and submitted that the Internet Code should follow this approach. In support of the Code applying to all ISPs, the CCTS submitted that the same rules, for all types of services offered by all communications service providers to all customers, would be easier for parties to understand and for the CCTS to administer. The Competition Bureau and most consumer groups, including CAD et al., the CPSC, FADOQ, and l’Union, submitted that the Internet Code should apply to all ISPs to ensure that all customers benefit from the Code, regardless of which ISP they choose. Most large facilities-based ISPs, including Cogeco, Eastlink, SaskTel, Shaw, RCCI, TCI, Videotron, and Xplornet, submitted that the Code should apply equally to all ISPs, including large facilities-based ISPs, to ensure that all customers benefit from the Code and to avoid asymmetric regulation. RCCI and TCI argued that inconsistent application of the Code would violate the 2006 Policy Direction, which requires that non-economic measures be implemented symmetrically to the extent possible. However, some parties, including the CCSA and CNOC, submitted that issues related to non-facilities-based ISPs and their underlying Canadian wholesale-retail relationships were not relevant to the Wireless Code and should be taken into account in the context of the Internet Code. CNOC and TekSavvy stated that several complaints concerning non-facilities-based ISPs are outside these ISPs’ control. CNOC submitted that the Commission should initiate a separate process if it wishes to assess if and how the Internet Code should apply to non-facilities-based ISPs. Distributel submitted that a follow-up proceeding would allow for further investigation into the specific needs, issues, and responsibilities of non-facilities-based ISPs. With respect to the impact of applying the Internet Code to non-facilities-based ISPs, CNOC, supported by the CCSA, stated that application of the Internet Code to smaller ISPs and/or resellers would be inconsistent with the 2006 Policy Direction, which requires Commission intervention only to the minimum extent necessary and that regulation be symmetrical and competitively neutral. These parties submitted that these requirements are not absolute. They submitted that symmetrical and neutral application of the Internet Code would be inappropriate given that there currently exist two classes of ISPs (i.e. large facilities-based ISPs and competitive ISPs), for which different regulatory treatment is warranted, because they (i) do not contribute equally to the need for the protections that the Code would provide, and (ii) have different capacities to implement and comply with the Code’s requirements. The Government of Yukon and some ISPs supported the Commission’s preliminary view set out in the Notice that the Code’s application should be limited to large facilities-based ISPs at this time to strike an appropriate balance between addressing customer concerns and not placing a heavy regulatory burden on smaller carriers or non-facilities-based ISPs. The CCSA submitted that many smaller ISPs (i) do not have written contracts with their retail customers but, rather, rely on standard terms of service published on their websites; (ii) permit their customers to cancel service at any time without penalty; (iii) do not experience significant numbers of customer complaints; and (iv) will do whatever they can to resolve customer complaints as quickly and as simply as possible. The CCSA submitted that its members’ customers would be unlikely to benefit from new requirements placed on their ISPs. Rather, such requirements are likely to introduce new costs and complexities to both the smaller ISPs and their customers. The CCSA noted that according to the CCTS’s 2016-2017 Annual Report, 73% of the complaints received about Internet services related to five large facilities-based ISPs: Bell Canada, RCCI, TCI, Videotron, and Xplornet.

Commission’s analysis and determinations

As set out in the Notice, the Commission considers that over 87% of Canadians receive their Internet service from nine large facilities-based ISPs; however, the Commission notes that there are an additional 700 non-facilities-based ISPs and 400 DSL providers registered with the Commission whose revenues represent approximately 13% of Internet Service subscriptions. The record of the proceeding demonstrates that there are differences in the typical Internet service contracts offered by the large facilities-based ISPs on the one hand, and other ISPs on the other hand. The large facilities-based ISPs appear to be more likely to (i) offer bundles of services, (ii) offer fixed-term contracts, and (iii) impose early cancellation fees, higher installation fees, and higher overage fees. The large facilities-based ISPs are also less likely to have customers subscribe to unlimited services. The large facilities-based ISPs are also more likely to offer time-limited promotional offers, gifts with purchase, or other discounts than other ISPs. In this regard, many smaller ISPs indicated that they have very simple plans and pricing, with no promotional offers at any time. As set out in the Notice, for the purpose of the Internet Code, the large facilities-based ISPs include large service providers in the “incumbent telecommunications service provider,” “cable-based carrier,” and “other carrier” categories as referenced in the Commission’s 2018 CMR. The Commission considers that large facilities-based ISPs have more complex service offerings than those offered by other ISPs. In particular, the large facilities-based ISPs are more likely to (i) include bundles, time-limited offers, promotional prices, and multiple package options; and (ii) have a fixed term. Customers are also more likely to be subject to an early cancellation fee with a large facilities-based ISP, and such fees, where imposed, are higher through a large facilities-based ISP. The complexity of these service offerings, which are often set out through a verbal agreement, renders these contracts particularly difficult to navigate for customers. This is reflected in the many complaints submitted on the record of this proceeding and to the CCTS regarding a broad range of Internet Service issues that relate to the large facilities-based ISPs. Most of the large facilities-based ISPs are also WSPs and/or TVSPs and offer bundles of services. In offering these other communications services, these service providers are subject to the Wireless Code and/or TVSP Code, which set minimum standards for the associated services. However, Internet Services, when sold as part of a bundle, are currently carved out of any such minimum standards. Given that the large facilities-based ISPs account for 87% of all Internet services received by Canadians, and that these service offerings are complex and oftentimes offered as part of a bundle, the Commission considers that the Internet Code should apply to large facilities-based ISPs at this time. The Commission considers that imposing the Code on the largest national and regional ISPs strikes an appropriate balance between benefiting the largest possible customer base and minimizing the burden of compliance with the Code. It will also ensure that customers can avail themselves of minimum standards, which will aid them in navigating the more complex agreements between themselves and their ISP. Regarding SaskTel’s argument that the Code should not apply to ISPs involved in few complaints to the CCTS, it is important to consider that complaints to the CCTS are useful in establishing overall trends in customer complaints about Internet Services. However, these complaints do not reflect all complaints related to Internet Services. As parties noted, the companies involved in the most complaints to the CCTS change from year to year. As a result, the Commission considers that it would be inappropriate to use the volume of complaints submitted to the CCTS as a parameter upon which to base the application of the Code. The record of this proceeding supports the application of the Internet Code to the following ISPs, which the Commission considers are the large facilities-based ISPs, including all of their brands and affiliates that provide Internet Services: Bell Canada (including Bell MTS Inc.; NorthernTel Limited Partnership; and Télébec, Société en commandite), Cogeco, Eastlink, Northwestel, RCCI, SaskTel, Shaw, TCI, Videotron, and Xplornet. At present, Northwestel is the only ISP with Internet Services that are subject to rate regulation. Northwestel’s current tariff generally does not address the issues contemplated by the Internet Code. Northwestel’s customers are more vulnerable due to a lack of competitive choice of service providers in Canada’s North, making switching between providers difficult. Without the benefit of the Code, the company’s customers would have fewer protections regarding issues related to contract clarity and bill shock than customers elsewhere in the country who could more easily switch providers. The rules in the Code related to the clarity of service offers and contracts, bill management, disconnection, and other issues would be relevant to Northwestel’s customers. In recent proceedings, the Commission has found it appropriate and necessary to impose other customer protection measures on Northwestel’s services subject to tariffs. For example, the Commission required Northwestel to amend its tariffs to reflect the 30-day cancellation policy. Accordingly, the Commission determines that the Internet Code should apply to Northwestel, as a large facilities-based ISP and a wholly-owned subsidiary of Bell Canada. The Commission therefore directs Northwestel to (i) modify the terms and conditions specified in its tariffs (for regulated services) to reflect the requirements set out in this decision, including in the Internet Code; and (ii) issue revised tariff pages by 31 January 2020. However, the Commission notes that rate-regulated services are outside the CCTS’s mandate. Thus, the CCTS cannot receive or report on complaints about Northwestel’s Internet services because they are now subject to rate regulation. Any such complaints would need to be addressed directly by the Commission. Many parties suggested that it would be best for customers if all ISPs were subject to the Internet Code immediately. However, the Commission considers that certain factors must be assessed before determining whether the Code should apply to other ISPs in addition to the large facilities-based ISPs. For example, issues related to non-facilities-based ISPs (also referred to as resellers) and the underlying wholesale-retail relationships were raised as significant concerns. While the majority of Canadians receive their Internet Services from a facilities-based carrier, the majority of ISPs are not facilities-based. As noted above, there are 700 registered non-facilities-based ISPs and 400 registered DSL ISPs whose revenues represent approximately 13% of Internet Service subscribers. In assessing the appropriateness of imposing new customer-oriented regulatory requirements such as the Code, the Commission must consider not only the impact on customers, but the impact of the regulatory burden on ISPs. For example, in the case of non-facilities-based ISPs that have wholesale contracts with ISPs that provide the underlying Internet service, the Commission must consider the ability of the non-facilities-based ISP to recover costs if the retail contract changes but the underlying wholesale contract remains the same. The potential impact on the competitiveness of the marketplace and its associated impact on customer choice and the range of price points available in the market must also be assessed. The Commission acknowledges the arguments from non-facilities-based ISPs that, regardless of their size, the imposition of certain Internet Code rules could place an unreasonable regulatory burden on them, due to the fixed nature of Internet Services and the lack of control that these ISPs have over the underlying wholesale service they rely on to provide service to their customers. As noted by non-facilities-based ISPs, wholesale services are the origin of certain complaints such as those related to service interruptions, or issues related to installation, repairs, disconnection, and reconnection. The Commission acknowledges that non-facilities-based ISPs, by reason of their wholesale relationships with underlying facilities-based ISPs, would face unique challenges to meeting customer protections as contemplated in the Code. In order to properly assess the feasibility of the Code’s application, or certain provisions thereof on non-facilities-based ISPs, the Commission would need to examine the potential interactions between the final Code and the wholesale tariffs or agreements. Such an analysis would enable the Commission to better identify any potential unintended consequences related to competitive choice or affordability. In the absence of this analysis, and a sufficiently robust record to allow for such an analysis to take place, the Commission is not in a position to determine which rules, if any, could be imposed on non-facilities-based ISPs at this time. Moreover, the Commission considers that the application of the Code to non-facilities-based ISPs could not take place without an examination, in more detail, of whether new policies should be created to address the underlying wholesale-retail relationships. Consistent with other proceedings to establish customer protections, such as the Wireless Code, and as stated in the Notice, the resolution of wholesale issues are outside the scope of this proceeding. Further, smaller ISPs represent a diverse range of ISPs, including not-for-profits and cooperatives run by members of the community. They may not have the resources to fully understand and implement the Code at this time and, in many instances, they offer a limited range of plans with no discounts or promotional prices, lessening the potential risks to customers. Accordingly, the Commission determines that the Internet Code will not apply to smaller ISPs at this time. However, because customer protection is an important issue for the Commission, it expects all ISPs to behave in a manner that is consistent with all the principles set out in the Internet Code, such as using clear communication, providing bill management tools, and having consumer-friendly business practices. The Commission considers that this expectation is in keeping with the fulfilment of the policy objectives of the Act.

Consistency with the 2006 Policy Direction

The 2006 Policy Direction states that when relying on regulation, the Commission should use measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary to meet the policy objectives; and measures that, if they are not of an economic nature, to the greatest extent possible, are implemented in a symmetrical and competitively neutral manner. Large facilities-based ISPs and other ISPs both argued that their respective opposing perspectives were consistent with the 2006 Policy Direction. The large facilities-based ISPs emphasized the importance of symmetrical and competitively neutral regulation. In contrast, the other ISPs emphasized the importance of such regulation “to the greatest extent possible,” which they argued required consideration of the burden of imposing the Internet Code on ISPs that are not large and/or not facilities-based. The Commission considers that limiting the initial application of the Internet Code would (i) further the policy objectives set out in paragraphs 7(a), (b), (f), and (h) of the Act; and (ii) be efficient and proportionate to its purpose by ensuring that the majority of customers benefit from the Code, without imposing an undue regulatory burden on other ISPs. The Internet Code would be implemented in a symmetrical and competitively neutral manner to the greatest extent possible by being applied equally to all the large facilities-based ISPs, regardless of where they operate or their business models.

Application to existing, new, amended, and renewed contracts

Positions of parties

In general, application of the Internet Code to new, amended, and renewed contracts was not contentious. In contrast, parties were divided on whether the Code should apply to existing contracts. Most consumer groups considered that the Code should apply to all contracts, regardless of when they were entered into. The CCTS submitted that Option 3 set out in the Draft Code, i.e. application of only specific Internet Code sections to existing contracts, would offer the best combination of broad customer protection and simple implementation and administration. The CCTS further stated that this would give more customers equal rights as compared to Option 1, i.e. application of the Internet Code only to new or amended contracts, which denies some customers protections until they renew or extend their contracts. Most ISPs strongly opposed the application of the Internet Code to existing contracts, submitting that, among other things, it would be burdensome to do so. The large facilities-based ISPs submitted that it would take, on average, 12 months to apply the Code to pre-existing contracts and that it would be costly to do so. Xplornet submitted that if the Code applies to existing contracts, certain provisions of the Code should not apply, such as those relating to early cancellation fees. CNOC argued that application of the Code to existing contracts would distort bargains that were established under a different set of terms. TCI submitted that should the Commission apply the Internet Code retroactively, it would cause significant market distortions by opening up every term Internet Service contract. RCCI stated that retroactive application must not alter the legal consequences of past transactions. RCCI also opposed the proposal to apply the Code to existing contracts, stating that it is not workable, given the obvious practical challenges of changing contracts mid-term. ISPs including Bell Canada, RCCI, TCI, and Xplornet submitted that the Commission should use Option 1 since it is the only option that applies entirely prospectively. Certain ISPs, including Bell Canada and TCI, submitted that in the alternative, should the Commission insist on giving a new Code retroactive effect, it should adopt Option 3 and limit the retroactive effect to rules that mandate the provision of certain information, rather than rules that reopen the bargains struck between ISPs and their customers.

Commission’s analysis and determinations

The Commission considers that (i) an existing contract is a contract that was agreed to before the date on which the Internet Code takes effect, (ii) a new contract is a contract agreed to on or after the date on which the Code takes effect, (iii) a renewed contract is a contract that is automatically renewed under the same terms and conditions on or after the date on which the Code takes effect, and (iv) an amended contract is an existing contract that is amended on or after the date on which the Code takes effect. The Commission notes that the contentious issue for parties was whether the Internet Code should apply and, if so, to what extent, to existing contracts. In determining whether the Code should apply to existing contracts, the Commission must determine that such an application is necessary to achieve the Code’s purpose, fulfills the policy objectives set out in the Act and otherwise complies with the 2006 Policy Direction. Applying the entire Internet Code to existing fixed-term contracts would require many changes to those contracts. The impact of such changes is difficult to determine since the level of detail in the contracts, and the issues they address, varies. The issue is different in the case of existing indeterminate contracts, since these types of contracts automatically renew every billing cycle (i.e. monthly). For this reason, the Commission determines that the Code will apply to indeterminate contracts upon their first renewal following the date of the implementation of the Code. The Commission considers that the most relevant fees to consider with respect to the retrospective application of the Code are fees that an ISP may impose at a future date. This includes early cancellation fees, and could include installation fees. Some ISPs indicated that they may waive installation fees unless a customer cancels within a certain period, making the installation fee functionally similar to an early cancellation fee in those cases. If the Commission were to determine that the Code should apply in its entirety to existing contracts, this might prevent ISPs from recovering the full value of any previously agreed-to early cancellation fee charged to a customer, depending on the terms set out in the contracts. The Commission has previously determined in the context of mobile wireless services that early cancellation fees can be a barrier for customers to switch service providers in order to take advantage of competitive service offers. The Commission notes the submissions about early cancellation fees and customer complaints about these fees, and considers that customers in the Internet Service market who have fixed-term contracts with early cancellation fees are experiencing similar challenges. However, the record of this proceeding also shows that while early cancellation fees for Internet services are a source of customer concern, they appear to affect a smaller percentage of customers and affect these customers to a lesser degree (i.e. such fees, if imposed, are lower) than early cancellation fees imposed on mobile wireless service customers. The provisions of the Internet Code, as set out in the Appendix to this decision, that are relevant to early cancellation fees are provisions B.2., G.1., and G.2. In light of the record of this proceeding, the Commission considers it reasonable that these provisions apply to new, amended, and renewed contracts only. The Commission also considers that there is insufficient evidence of the benefit of imposing these provisions on existing contracts when taking into account the cost to ISPs to implement them. The Internet Code also includes provisions (B.1., B.5., C.1., and F.2.) on the content of contracts. The application of these rules to existing contracts would require ISPs to effectively redraft the contracts under new terms and conditions, which may be burdensome for ISPs and their customers. The Commission also considers that there is insufficient evidence of the benefit of imposing these provisions on existing contracts when taking into account the potential costs to ISPs to implement them. The Commission therefore considers it reasonable that these provisions apply only to new, amended, and renewed contracts. Other rules in the Internet Code do not retrospectively change the existing contractual relationship between ISPs and customers, but rather address the ongoing relationship and what information must be provided to customers to empower them to make informed decisions. The Commission considers that these rules can apply to existing contracts. Accordingly, the Commission determines that when the Internet Code takes effect, it will apply in full to new, renewed, and amended contracts. The Internet Code will also apply to existing contracts, excluding provisions B.1., B.2., B.5., C.1., F.2., G.1., and G.2.

Content of the Code

The sections below describe parties’ positions on the content of the Internet Code and the Commission’s related analysis. The Commission has reflected the resulting modifications to the Draft Code that it deemed appropriate, as set out in the Appendix to this decision.

Interpretation

Positions of parties

Most parties supported the preamble proposed in the Draft Code. Parties noted that the preamble is the same as that in the Wireless Code, which ensures that, among other things, in the case of ambiguity, the Internet Code and Internet Service contracts must be interpreted in a manner that is favourable to the customer. The CCTS argued that the preamble to the Draft Code should be modified to reflect the facts that, consistent with the Commission’s statements in previous proceedings, (i) the CCTS may make interpretations of codes when administering complaints, (ii) CCTS determinations with respect to individual complaints cannot be appealed, and (iii) the appropriate approach to seeking clarification from the Commission on a code is through a Part 1 application. TCI argued that the preamble regarding interpretation of ambiguity in the Code or a contract in favour of the customer should be removed, as it runs contrary to the common law rules of statutory and contractual interpretation and is inconsistent with the Act. L’Union disagreed and submitted that the provision conformed with the law and was welcome for consumer protection.

Commission’s analysis and determinations

The Internet Code should reflect many of the same policy principles as those established in the Wireless Code, since both Internet Services and mobile wireless services raise similar customer concerns. As with any new set of rules, there may be issues of interpretation that the Commission has not anticipated. Therefore, the Commission considers that to ensure the greatest benefit to customers, if any part of the Internet Code or a contract is ambiguous, or if it is unclear how the terms of the Code or the contract are to be applied, then the Code and the contract must be interpreted in a manner that is favourable to customers. The Commission considers that the Interpretation section, including on the interpretation of any ambiguity, can help further the Internet Code’s objectives by ensuring the greatest benefit possible to customers. The Commission also considers that the CCTS’s proposals are reasonable and accurate, and that they would help all parties better understand the role of the CCTS when they make a complaint. The Commission therefore determines that the CCTS may interpret the Code for the purpose of investigating complaints. Decisions rendered by the CCTS about specific complaints cannot be appealed to the Commission. If, however, at any time ISPs or other interested persons are unclear about the application or interpretation of the Internet Code by the CCTS, they may seek guidance or interpretation from the Commission through Part 1 applications. The Commission reserves the right to issue guidelines of general application.

Section A. Clarity

Clear communication

Positions of parties

Most parties supported the provision regarding clear communication as written in the Draft Code. Parties noted that clear communication and easy to understand contracts and related documents are important to ensure that customers have the information they need in a timely, accessible manner in order to make informed choices about their Internet Services. Individual Canadians submitted that Internet Service contracts and terms of service are difficult to understand and frequently contain technical language. It was also argued that contract clarity would improve if consumers had access to ASL/LSQ videos explaining key contract terms before or while they agree to a contract, and that this would make Internet Service contracts more accessible to DDBHH individuals. In its survey of 135 DDBHH individuals, CAD et al. found that the clarity of Internet Service contracts was problematic for many such individuals, in particular due to the legal and technical language used. CAD et al. proposed that ISPs be required to collaborate on developing sign language videos that explain key terms in Internet Service contracts. CAD et al. also proposed that to ensure that all communications with DDBHH individuals are clear and use plain language, ISPs should be required to have in-store displays that provide access to information in ASL/LSQ. L’Union submitted that the Commission should clarify what is meant by the term “plain language” in the Draft Code. L’Union indicated that, since customers’ levels of understanding differ, the average customer should be considered to have the level of understanding of the most vulnerable, credulous, and inexperienced customer. L’Union also submitted that the use of plain language by ISPs is not sufficient; it is also essential that communication and contracts be clear and easy to understand. Some ISPs supported the requirement that ISPs communicate in a clear manner. However, they also submitted that they should not be prevented from using key legal terminology in their service agreements for which there are no plain language alternatives.

Commission’s analysis and determinations

The purpose of this provision is to set a baseline for consumer-friendly behaviour that addresses several aspects of what it means to get clear information. Individual Canadians, including those speaking about the needs of DDBHH individuals, stated that the information they currently receive about their contracts is confusing and full of legal or technical language. In light of the above, the Commission determines that ISPs subject to the Internet Code must communicate with customers in a way that is clear, easy to understand, timely, accurate, and accessible, and that uses plain language. The Commission also determines that ISPs subject to the Internet Code must ensure that their written contracts and related documents, such as privacy policies and fair use policies, are written and communicated in a way that is clear, accessible, and easy for customers to read and understand. Accordingly, the Commission directs the large facilities-based ISPs to work together to create and promote common terminology sign language videos (in ASL and LSQ), in consultation with the DDBHH community. Consultations must begin no later than 2 December 2019. The videos are to be created in the interests of all customers and must not be an advertising vehicle for any particular ISP(s). They must also include closed captioning. The large facilities-based ISPs are to support this initiative with the resources necessary to allow for the meaningful and active participation of the DDBHH community. The “Promoting awareness of the Code and rights” section of this decision contains more information on this direction. With respect to what is meant by plain language, for the purposes of the Code, the Commission defines plain language as communication that is clear and easy to understand by a public audience, including for the most vulnerable and inexperienced customer.

Prices

Positions of parties

Most parties agreed that prices in contracts should be clear. Individual customers stated that prices set out in contracts are not sufficiently clear, especially prices related to promotional offers, discounts, bundles, and fees. FADOQ suggested that customers should be informed of the relevant details of these time-limited offers. L’Union submitted that one-time and recurring fees are a frequent source of bill shock, and therefore proposed that the Commission also require that all fees set out in contracts be clear. The Competition Bureau submitted that additional mandatory costs beyond the advertised price, such as modem rental fees, should not be placed in fine print disclaimers, but rather clearly disclosed to customers. It stated that the prices advertised for a service should be clear and represent the “all-in” price, including all mandatory costs. L’Union also proposed that the Code should prohibit ISPs from charging fees that are not expressly stated in the contract. TCI indicated that l’Union’s proposal would require that ISPs send a customer a new contract every time a small or temporary change is made to the customer’s account, which would be administratively burdensome for ISPs and confusing for customers, and would serve no purpose.

Commission’s analysis and determinations

The Commission considers that the issues raised by individual Canadians and consumer groups support the principle that prices in both offers and contracts should be clear. Clear prices in offers and contracts, including clear promotional prices, will better enable customers to decide which offer or contract best meets their needs. With respect to the Competition Bureau’s proposals regarding all-in pricing as advertised, the Commission considers that the record of this proceeding is not sufficiently developed to make a determination on this issue. Further, the Commission considers that the issue of misleading or false advertising falls outside the scope of this proceeding. The Commission notes that ISPs must already adhere to existing federal and provincial legislation regarding advertising practices. However, the Commission considers that all ISPs should indicate in their offers and contracts whether or not their prices include taxes. In light of the above, the Commission determines that ISPs subject to the Internet Code must ensure that prices set out in offers and contracts are clear, including prices related to promotions, discounts, incentives, and other time-limited offers, and bundles. The Commission also determines that ISPs subject to the Internet Code must indicate in all offers and contracts whether the prices include taxes.

Unlimited services

Positions of parties

Most parties supported the provision regarding unlimited services as set out in the Draft Code, on the basis that unlimited services should not be subject to overage fees and that functional limits, such as those related to security, network management, and related issues, can be set out in a fair use policy. No party objected to prohibiting overage fees for unlimited services. Some parties, including the Competition Bureau, FADOQ, and Rothschild, submitted that unlimited services should not be subject to any functional limits on the basis that describing such services as unlimited would be misleading to customers. FADOQ and Rothschild submitted that ISPs should not be allowed to describe a service as unlimited if it has any limits, because this would enable them to mislead customers. The Competition Bureau submitted that a claim that a service plan is unlimited could be considered misleading if, in fact, the plan is limited in some material way. FADOQ and l’Union submitted that ISPs should not be able to use disclosure in a fair use policy as a justification for imposing any limit; instead, only justifiable limits should be allowed.

Commission’s analysis and determinations

The purpose of this provision is to set a baseline for appropriate behaviour regarding unlimited services, while taking into consideration that (i) issues related to false or misleading advertising are outside the scope of the Internet Code and the CCTS’s mandate, and (ii) issues related to the appropriateness of Internet traffic management practices and other issues described in fair use policies are outside the scope of this proceeding. A similar provision exists in the Wireless Code, and the Commission is of the view that the same principles are equally relevant for both mobile wireless and fixed Internet service contracts as they relate to clarity on the functional limits of services purchased on an unlimited basis. Such limits are generally set out in a fair use policy. With respect to proposals that the Code should limit or qualify what an ISP can set out in a fair use policy, the Commission notes that fair use policies have several functions, many of which are outside the scope of this proceeding. Parties did not raise specific concerns about fair use policies that they considered to be unjustified. ISPs may set limits on the use of Internet services, whether those services are described as limited or unlimited, as long as any such limits are clearly disclosed to customers. Requiring ISPs to disclose such limits in a Critical Information Summary (CIS), as required in the Wireless Code, would ensure that customers obtain such information when signing contracts, enabling them to make informed decisions. Accordingly, the Commission determines that ISPs subject to the Internet Code must not charge customers any overage charges for services purchased on an unlimited basis. Moreover, the Commission determines that ISPs subject to the Internet Code must not limit the use of services purchased on an unlimited basis, unless those limits are clearly explained in the fair use policy.

Unsolicited services

Positions of parties

Most parties agreed with the provision regarding unsolicited services as written in the Draft Code, submitting that customers should not be charged for devices or services they have not expressly purchased. Several individual Canadians stated that they have been charged for services they did not order and did not want, resulting in bill shock. One customer stated that they have to constantly monitor their billing to ensure that the ISP is not charging them for services they do not have, which, they submitted, the ISP has done on occasion. Another customer stated that when they upgraded their Internet service, their ISP started billing them for television services they did not request. Shaw agreed that ISPs should not charge for services that were not purchased, but argued that ISPs should have the right to charge for unreturned, damaged, or otherwise unrecoverable equipment. FADOQ argued that the Code should include a provision that if charges do apply, these charges must have been previously indicated by the service provider. L’Union agreed with this rule in principle but proposed adjusting it to include only those services that a customer expressly asked for.

Commission’s analysis and determinations

The purpose of the provision regarding unsolicited services is to ensure that customers have recourse through the Internet Code if they are billed for services they did not expressly purchase. The Wireless Code contains a provision with the same intent and the Commission determines that it is appropriate to maintain this provision in the Internet Code. With respect to Shaw’s concerns, the Commission notes that any fee charged for unrecoverable equipment should be clearly disclosed in contracts, to be consistent with the Code, and that rules relating to unsolicited services should not affect a fee disclosed in this manner. With respect to the difference between “expressly purchased” and “expressly requested” or “expressly asked for,” the Commission considers that “expressly purchased” captures the terms and conditions that a customer agrees to at the time of sale, all of which must be clearly disclosed pursuant to the proposed Internet Code. It is reasonable for ISPs to be able to charge fees for services that customers have agreed to purchase, to the extent that those fees were appropriately and sufficiently disclosed.

Clarity of offers

The Commission notes that the provisions of the Draft Code related to the clarity of offers are addressed below as part of the analysis in Section C. Critical Information Summary.

Section B. Contracts and related documents

When contracts must be provided

Positions of parties

Many ISPs, most of them smaller ISPs, as well as Eastlink, SaskTel, and TekSavvy, submitted that they do not offer “contracts” to any or all customers, meaning that they do not offer a written document that sets out the specific terms and conditions of their agreement to provide service to a customer, except in the case of small business customers. In general, these ISPs submitted that, instead, they make a “terms of service” document available on their websites. L’Union submitted that customers who request a copy of their contract should receive it within 15 days, the same timeline as when a customer originally agrees to a contract. FADOQ proposed that when an ISP provides a copy of a contract to a customer, it should be required to provide both a permanent copy of the original contract and an up-to-date version of the contract that reflects any changes that may have been made, to enable customers to compare both versions. Videotron opposed the rule that allows customers to choose the default format of their contract (paper versus electronic). The company submitted that most customers have no preference, but that there can be higher costs and ecological impacts involved in providing the paper version of a contract. Videotron considered that ISPs should be able to determine the default format, as long as they provide customers with the format of their choice upon request. Cogeco supported this proposal. SaskTel submitted that an electronic copy of a contract can be provided immediately, but that ISPs should be allowed 15 calendar days to provide a paper copy of a contract in the case of in-store and door-to-door sales. Alternatively, SaskTel submitted that contracts agreed to with door-to-door representatives should be categorized as contracts agreed to “at a distance” in order to recognize that salespersons may not have the capacity to produce a paper contract immediately upon request. Eastlink noted that the preliminary view set out in the Draft Code that electronic copies must be sent within one calendar day is a departure from the TVSP Code, which allows 15 calendar days, and would require a system change involving significant time and resources, without any material benefit to customers. Eastlink noted that it provides customers with a CIS containing all relevant information within two hours of a service being ordered. Eastlink submitted that flexibility should be afforded to ISPs in order to strike a balance between providing the required information and complying with other timelines.

Commission’s analysis and determinations

The Commission acknowledges that some ISPs forgo the provision of a contract and rely on terms of service instead, and that individualized documents can be more costly to produce than a single document for all customers. However, this cost does not outweigh customers’ need to be informed of the specific conditions of their contractual relationship with an ISP, including all items outlined in provision B.5 of the Code. As such, the Commission is of the view that it would be appropriate to add to the current provision of the Draft Code a section indicating that when a contract is agreed to, a service provider must give the customer a contract that meets all the conditions in terms of its content, as set out in provision B.5. A terms of service document is sufficient to meet this requirement only if it contains all of this information. Regarding l’Union’s proposal that copies of contracts – distinct from the permanent copy that is provided initially – be provided upon request to customers within a specific time frame, the record of this proceeding and the CCTS complaint data are insufficient to assess whether the non-provision of copies of contracts in a timely manner, apart from the initial permanent copy, is a significant concern for customers and prevents them from determining their rights under the Code. The Commission is not convinced that there is justification at the moment for changing the Draft Code in this regard. Regarding FADOQ’s proposal that ISPs, upon request by their customers, provide both an up-to-date version of a contract and the original contract, the Code includes provisions for the retention of information to assist in dispute resolution. It would be premature to determine that those provisions would not address the concerns raised by FADOQ, and thus, the Commission determines that it is not necessary to implement FADOQ’s proposal. Regarding the request by Cogeco and Videotron that ISPs be allowed to choose the default format of a contract, paper or electronic, the provisions of the Code require that customers be offered a meaningful choice. This does not prevent ISPs from setting the default format of a contract, provided that customers are allowed to obtain the other format if they so choose. Door-to-door salespeople may not always carry the required material or equipment to produce a paper copy of a contract upon request. The Commission considers that it is reasonable to allow door-to-door salespeople to be considered “at a distance” for the purposes of this provision when a customer elects to receive a paper copy of a contract. The Commission notes that provisions of the Code allow customers to cancel their service if, when they receive the contract, it does not match what they had agreed to. However, the Commission is of the view that in-store salespeople should be provided with the equipment necessary to provide a paper copy of a contract, as required, for in-person transactions. Regarding Eastlink’s request about the different timelines in the Internet Code and the TVSP Code for providing the permanent electronic copy of a contract, the underlying objective of the Code is to ensure that customers have access to the most efficient means possible of ensuring that their contract matches their offer. Furthermore, if Eastlink is able to provide a CIS containing all relevant information within two hours of the service being ordered, it is not unreasonable to expect a contract to be provided within one business day. In light of the above, the Commission determines that, when a contract is agreed to, ISPs subject to the Internet Code must provide the customer with a permanent copy of the contract that meets all the conditions set out in provision B.5, either immediately, if the contract is agreed to in person; within 15 calendar days, if the contract is not agreed to in person (e.g. over the phone, online, or otherwise at a distance) and the customer chooses to receive a paper copy of the contract; or within one business day, if the contract is not agreed to in person and the customer chooses to receive the contract electronically. The Commission also determines that ISPs are not required to provide a new permanent copy each time a contract renews automatically with the same rates, terms, and conditions. However, ISPs must provide customers with a permanent copy of the contract in the format of the customer’s choosing (electronic or paper), upon request and at no charge, at any time during the commitment period.

Cancellation period when the permanent contract conflicts with the customer’s agreement

Positions of parties

Parties generally agreed with the inclusion of this provision in the Code. The CCTS indicated that it would struggle to implement the rule as worded because it is not always clear precisely when the customer receives the permanent copy of the contract. The CCTS submitted that the start date of the contract is clearer.

Commission’s analysis and determinations

If an ISP fails to provide the contract within the required time frame, or if the terms and conditions of the permanent copy of the contract conflict with the terms and conditions that the customer agreed to, the customer may, within 45 calendar days of the start of the contract, cancel the contract without paying an early cancellation fee or any other penalty. The Commission clarifies that the start of the contract is the day on which the service begins, that is, when the customer can effectively start using the service.

Accessible formats

Positions of parties

CAD et al. noted that many customers have difficulty obtaining ISP contracts and related documents in accessible formats. CAD et al. indicated that it is critical for the Commission to establish mandatory accessible formats, such as electronic plain text, Braille, and large font. The CCTS suggested that the documents should be provided in a format that meets the specific customer’s accessibility needs. FADOQ and l’Union submitted that ISPs should be required to offer contracts and related documents in accessible formats for persons with disabilities at no charge, upon request, and within the time frame that was set out when the contract was accepted.

Commission’s analysis and determinations

Accessible formats that are provided to customers must be responsive to each customer’s accessibility needs. However, to provide an exhaustive list of accessible formats would preclude new formats that result from future technological advances. Therefore, the Commission clarifies what is meant by accessible formats by adding to the Code a non-exhaustive list of types of accessible formats, which include plain text, Braille, and large font. Further, regardless of whether or not they are in an accessible format, contracts and related documents must be provided in accordance with the time frame for any contract, as set out in the Code.

Content of contracts

Positions of parties

Individual Canadians who participated in this proceeding submitted that contracts frequently contain significant amounts of legal and technical language and are difficult to understand. They argued that terms of service are too long and complex, and th