The Right Tool For the Job

Recently, I was mounting shelves and needed to secure some metal brackets to a brick wall. The job required a hammer drill, so I rented one and got to work. It did not take long, however, for my schemes and dreams to devolve into an ugly mess of dust, sweat, and foul language. I got the shelves up, in the end, but the work was really difficult and unpleasant; my results were acceptable, but they were far from the perfection that I had envisioned. Later, returning the drill, I pictured myself complaining about the stupid thing. Upon reflection, though, I recognized that the main problem lay, almost certainly, not with the tool, but with the man that had wielded it (I am a man, to be sure, but I am no handyman).

Bodies of legislation, together with the particular regulations framed under them, may be regarded as tools (implements, devices, etc.). Governments use these tools when (in accordance with this or that conception of what is right and good) they work to organize those parts of the social order over which they have jurisdiction. More specifically, laws and regulations are (some of) the tools to which bureaucracies have recourse, as they seek to obstruct some kinds of social relation, while working to actualize, or at least to facilitate, others. If laws or regulations prove to be ineffective with respect to their stated aim, it might be that they include defects that render them ill-suited to their purpose. As with my rented drill and me, however, it is possible that these legal devices’ ineffectiveness is a function of deficiencies in those that wield them.

The Canadian Radio-television and Telecommunications Commssion (CRTC) and the Ontario Energy Board (OEB) are two government bodies (one federal, the other provincial) that wield tools of the kind described above. The CRTC wields laws and regulations that enable it to organize and control relations between Canada’s telecommunications marketers and their customers. The OEB is equipped with tools, too, that enable it to organize and control relations between Ontario’s energy marketers and their customers.

The CRTC recently assembled, and now wields, a new tool, a remarkable instrument that will enable them to effect and enforce a deep reorganization of relations between Canadian telecommunication service providers and their customers. The device in question consists in a stark prohibition: service providers are forbidden, henceforth, to require 30 days’ notice when customers want to cancel their television, phone, or internet services. The CRTC is by no means perfect, but to the extent that they enforce this new prohibition (by means of sanctions and the threat of sanctions), this development is an enormous step in the right direction.

Now, my last post discussed one of the tools that the OEB has at its disposal as it goes about its work of organizing and monitoring relations between marketers and consumers of energy products here in Ontario: the Energy Consumers Protection Act, 2010 (ECPA). As I showed last month, it is possible, by reverse engineering the ECPA, to determine the basic features of the situation that motivated its development. In fact, as I pointed out, we need look no further than the ECPA’s name to see what this situation consisted in: as of 2010, at least, energy consumers faced market-specific risks and thus stood in need of special protection.

Legislators do not frame laws that command things that everyone is doing already. Nor do lawmakers promulgate laws that forbid activities in which no one is (or might be) engaged. Among other things, then, a law is a kind of statement of what legislators take people to be doing and/or failing to do at the time when the law is being articulated and enacted. We may infer from the ECPA’s very title that, as this law was being developed and put into effect, policymakers must have taken Ontario’s energy consumers to be in a predicament marked by significant hazards. In fact, policymakers did think this; they saw that, although parts of then-current (but subsequently amended) laws were intended as tools for protecting energy consumers, the OEB was not adequately equipped. Those older tools turned out to be ill-suited to their purpose. A new device, the ECPA, was therefore designed, assembled, and then handed over to the OEB. It was delivered to them as an implement custom-designed to enable them better to protect Ontario’s energy consumers.

Now, however, as I mentioned in my last post, Ontario’s Energy Minister wants to know whether the ECPA has turned out, thus far, to be an effective tool in this regard. In other words, the Minister wants to know whether the ECPA is a tool by means of which the OEB is actually succeeding in protecting Ontario’s energy consumers. But recall, again, my rented hammer drill and me: questions about the ECPA’s effectiveness cannot be divorced from questions about the strengths and weaknesses of staff at the OEB.

The CRTC’s recent ban on the long-standing 30 days’ notice requirement gives us a valuable standard for comparison here. We may ask whether the ECPA gives the OEB leeway for making an equivalent move, at the provincial level and in regard to energy products. If it does, then we may wonder why the OEB has not fully exploited the powers afforded it by the ECPA. Has the OEB promulgated and enforced regulations under the ECPA (in tandem with other relevant legislation) that are as radically consumer-protecting as the CRTC’s recent ban? Why not? Does the problem lie with the tool or with those wielding it?

The CRTC’s intervention might well be called “radical,” for it addresses the foundations of the system that has long constituted Canada’s telecommunications market. It aims at a deep reconfiguration of that system. By means of their ban, too, the CRTC makes a statement concerning the telecommunications market: the unjust enrichment of telecommunications companies is best prevented when consumers are free to purchase telecommunications products from whomever they want, right now, today, on the spot. There is no prima facie reason to think that a similarly radical reconfiguration would be impossible or undesirable in Ontario’s energy market. It is a question that ought to be studied, in any case. Does the ECPA enable the OEB to frame enforceable regulations that truly express the ECPA’s intended purpose? Does the ECPA enable the OEB to effect the kind of radical restructuring of market relations that is foreseen and aimed at by the CRTC’s recent move? If the ECPA is a tool that would facilitate an equivalent move, then why does the OEB fail to put an otherwise effective instrument to effective use?

It is unlikely, at best, that the OEB as currently constituted will ever undertake anything as radical as the CRTC has done. As I pointed out last month, the credibility of any statement or plan coming out of the OEB’s current “consultation” on the effectiveness of the ECPA (its second part in particular) will be undermined by the extent to which energy providers dominate the discussion. The credibility of these results will be undermined too, however, to the extent that OEB staff prefer to blame their tools, rather than to acknowledge that they are not using them correctly. In the meantime, service providers will continue to engage in practices that place consumers at risk. Consumers will continue to stand in need of protections that regulative bodies are unable or unwilling provide. And this is why the services offered by Utility Advocates Inc. will continue to be indispensible to their clients.