Enough is Enough

With a Part VII application submitted last Friday, Canadian telecom service providers are drawing a line in the sand with respect to the payment of costs to public interest interveners.

Mark Goldberg blogged recently about the general state of funding for consumer voices, noting in particular the recent cost claims made in the Internet traffic management proceeding, where a staggering $430,000 is being sought by public interest interveners.  As Barrett Xplore Inc. pointed out in that proceeding, each of the Public Interest Advocacy Centre (PIAC), the Advocacy Research Centre for the Handicapped (ARCH) and the Candian Internet Policy and Public Interest Clinic (CIPPIC) spent more on counsel fees alone than did Barrett Xplore itself in its full participation in the hearing.

Since then, in addition to obtaining more time to respond to these significant cost claims, a broad consortium of 10 telecom service providers has requested that the CRTC review and fundamentally reform an intervener costs framework that the applicants contend is out of control.  The applicants allege that the current regime has strayed a long way from its original objective, as a means of encouraging public participation in CRTC proceeding, to nearly guaranteeing a costs award for any submissions in any proceedings.  Moreover, they argue, there are no incentives for interveners to reduce their own costs or control external fees, such as for outside counsel.

Drawing inspiration from Québec’s energy regulator, the Régie de l’Énergie du Québec, the applicants urge the Commission to put in place detailed guidelines designed to narrow and clarify participant eligibility for costs and the criteria for the allocation of costs among potential respondents.  In addition, the applicants also seek guidelines designed to provide incentives for costs claimants to control their costs, and potentially to require interveners to combine efforts with other public interest groups.  Suggestions include the submission and approval of budgets prior to participation and the setting of maximum allowable hours that can be claimed for particular types of proceedings.

CRTC proceedings tend to be dominated by well-funded commercial organizations with strong business interests in the outcome of the proceeding.  In my view, the Commission and all participants benefit from the participation of groups representing the public interest, since that participation ensures a broader set of interests is heard and ultimately, enhances the legitimacy of the Commission’s eventual ruling.   Accordingly, some form of funding, whether direct or in the form of costs awards, may be desirable to the extent that it encourages meaningful participation by public interest groups. 

However, the Commission must carefully balance this interest in public participation against the administrative and financial burden on telecom service providers, who pay those costs.  At the same time, the Commission must take care not to introduce so many controls and hurdles that public interest groups are discouraged from participating, or are unable to participate in a substantive and meaningful way.

Has this pendulum swung too far?  The applicants certainly think so.