A Few Thoughts on the Interim Commissioner of Competition’s C.D. Howe Institute Remarks

Yesterday, Canada’s Interim Commissioner of Competition, John Pecman, delivered remarks at the C.D. Howe Institute in Toronto – his fifth speech since taking the position of Interim Commissioner last fall (see: Remarks by John Pecman, Interim Commissioner of Competition).  In general, his remarks reflected some fairly well known aspects of his views as an antitrust official, notably his focus on enforcement (a theme consistent with the previous Commissioner who stepped down last fall).

The Interim Commissioner’s remarks confirmed some recent announcements and developments, including an appetite by the Bureau for increased regulatory interventions and advocacy (e.g., in the digital, retail and health sectors), the its plans to continue with “sector days” to meet key players in important sectors of the economy (including telecom and digital) and an ongoing focus on criminal competition law enforcement, particularly with respect to price-fixing, bid-rigging and other cartels.

With respect to regulatory interventions, the Bureau made the first of its new interventions last month, with a submission in the CRTC’s wireless code consultations.  Some past Bureau industry interventions and studies have included the grocery, auto insurance and dental hygiene markets, as well as studies of self-regulated professions including law, optometry, accounting and real estate services (see e.g.: here, here and here).

Some of the specific points from the Interim Commissioner’s remarks that I found interesting include:

1.  Comments that the Bureau is interested in ICANN policies (Internet Corporation of Assigned Names and Numbers) that could potentially restrict competition through exclusive access to new generic top-level domain names (“gTLDs”).

2.  A recognition that the regulated conduct doctrine potentially insulates regulated sectors from the full force of competition law (the subject of a recent C.D. Howe Institute report entitled Closing the Back Door Route to Cartels: The Need to Clarify the Regulated Conduct Doctrine) and indicating that, based on the fact that the case law is underdeveloped in this area, the Bureau is “searching for an appropriate case to deal with this”.  The Commissioner also indicated that the Bureau would be reviewing its existing Regulated Conduct Bulletin once again to ensure that it accurately reflects the Bureau’s policy (the Bureau’s current RCD Bulletin was updated in 2010 to replace its previous Technical Bulletin on “Regulated” Conduct, which was criticized for not accurately reflecting existing case law).

3.  A desire to further protect immunity applicants (i.e., their identities and information), given the Bureau’s continued reliance on its Immunity and Leniency Programs as its leading cartel detection and enforcement tools.

In addition to his newest remarks yesterday, over the past six months since Mr. Pecman has assumed the position of Interim Commissioner, he has also made a number of important enforcement and policy announcements.

These have included: a new policy by the Bureau to use compulsory production orders (section 11 orders) as a general rule in inquiries, with voluntary information requests only used as the exception; renewed scrutiny of trade and professional associations; plans to formulate new guidelines (including abuse of dominance FAQS, which may fill some of the void left by the Bureau’s significantly briefer recently amended Abuse of Dominance Guidelines); a shift away from issuing written opinions and reliance on guidelines to more enforcement; and a focus on misleading advertising enforcement in the digital and mobile areas (see: here, here, here and here).

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