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US Senate approves bipartisan resolution to restore net neutrality rules

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The Senate approved a resolution Wednesday that aims to undo a sweeping act of deregulation undertaken last year by the Federal Communications Commission, issuing a rebuke to the Trump administration, which supported the FCC’s move.

The resolution targets the FCC’s vote in December to repeal its net neutrality rules for internet providers. If successful, the legislative gambit could restore the agency’s regulations and hand a victory to tech companies, activists and consumer advocacy groups.

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What happened and what’s next as the U.S. government rolls back net neutrality

“The Senate vote, on the eve of mid-terms, could have significant political effects,” said Marc Martin, a telecom lawyer at Perkins Coie in Washington. But, he cautioned, it remains unclear how many voters will actually be motivated by net neutrality to go to the polls.

Senate supporters of the FCC rules put forward the legislation under the Congressional Review Act, a law that permits Congress to revisit — and reject — decisions by administrative agencies within a certain window of their approval. The resolution, or CRA for short, passed with the backing of all 49 Democratic senators and three Republicans: Sens. Susan Collins of Maine, John Kennedy of Louisiana and Lisa Murkowski of Alaska.

“Today, we show the American people who sides with them and who sides with the powerful special interests and corporate donors who are thriving under this administration,” Sen. Edward Markey, D-Mass., who is leading the CRA effort, said on the Senate floor Wednesday morning.

Kennedy, whose vote was closely watched as one of the few Republicans siding with Democrats on the issue, said he was ultimately persuaded to vote yes because more than 1 in 5 Louisianans lack choice in their broadband provider. “It was a fairly close call, but I’ll tell you what it comes down to: The extent to which you trust your cable company,” Kennedy told The Washington Post moments after casting his vote. “If you trust your cable company, you’re not going to like my vote today. If you don’t trust your cable company, you will.”

Still, it is unclear what fate may await the measure in the House. Senate Minority Leader Charles Schumer, D-N.Y., urged the House to take up the issue quickly.

“House Republicans don’t have to choose the same path that the vast majority of Republicans in the Senate chose,” Schumer said at a news conference Wednesday afternoon. “The American people have spoken. Speaker Ryan should listen.”

House Majority Leader Kevin McCarthy, R-Calif., has said lawmakers in that chamber are focused on designing their own legislation to “permanently address this issue,” casting doubt on whether the Senate resolution can advance. And given the White House’s endorsement of the FCC’s repeal, analysts say, it is unlikely that Trump will sign the resolution to make it effective. (In one of his first acts of office, Trump last year signed a Republican-backed CRA overturning other FCC rules that established new privacy protections for internet users.)

The net neutrality regulations, imposed on broadband companies such as AT&T, Verizon and Comcast in 2015, banned the industry from blocking or slowing down websites. The rules also prohibited those companies from offering websites and app developers faster, easier access to internet users in exchange for extra fees — a tactic that critics described as digital “fast lanes” that could distort online competition in favour of large, wealthy businesses.

Despite surviving a court challenge from broadband industry groups seeking to overturn the rules in 2016, they came under fire again a year later — this time from the agency’s new Republican leadership. FCC Chairman Ajit Pai led the charge against the net neutrality regulations, calling them an example of government overreach that discouraged internet providers from investing in upgrades to their networks.

“Under my proposal, the federal government will stop micromanaging the internet,” he said in November, a month before he and the FCC’s two other Republicans, Michael O’Rielly and Brendan Carr, voted to repeal the rules.

The agency’s two Democrats at the time, Mignon Clyburn and Jessica Rosenworcel, voted to keep the rules on the books.

Pai’s opponents have said the rules are a necessary consumer protection as the internet has become more vital to supporting the economic livelihoods of everyday Americans. In surveys, solid majorities say they support the principle of net neutrality generally, and the FCC’s rules in particular.

“Pai’s so-called ‘Restore internet Freedom’ order was built on a mountain of false premises — about the law, the state of investment … and public sentiment,” Tim Karr, a consumer advocate at Free Press, tweeted Tuesday.

Trade groups representing internet providers sent a letter to Capitol Hill on Tuesday urging lawmakers to vote against the CRA. Calling on Congress to reject the resolution in favour of developing bipartisan legislation to replace the FCC rules, the groups argued that the CRA does “nothing” to address the data mining and other practices of tech companies who have come under growing scrutiny for their role in facilitating the spread of online misinformation and harassment.

The internet Association, a trade group backed by Facebook, Uber and others, has said that regulations targeting Silicon Valley on hate speech risks running afoul of the First Amendment. It also said last week that consumers demand strong and enforceable net neutrality rules on internet providers.

“It is essential that rules be reinstated through any means necessary, including the CRA, courts, or bipartisan legislation,” the group said in a statement.

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Kinder Morgan could win all the battles and still lose the war

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Of the 16 judicial challenges that the Trans Mountain pipeline project has survived so far, none is as important as one handed down this week by the B.C. Supreme Court.

The court actually ruled in two separate lawsuits, one filed by the City of Vancouver and the other by the Squamish Nation. But, make no mistake − it is the second that is so consequential and portends well for the company in terms of the legal matters still outstanding.

To understand why the Squamish case is so important, one has to go back to a Federal Court of Appeal decision in 2016 regarding Enbridge’s proposed $7.9-million Northern Gateway pipeline. Approved by the National Energy Board and the federal cabinet, the court found that Ottawa failed to properly consult First Nations communities along the planned route. That ruling effectively killed the venture there and then.

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Kinder Morgan was always aware of the concerns expressed by aboriginal groups in northern B.C. that there had been insufficient consultation around the Gateway project. Both Enbridge, and the federal government at the time, had been publicly criticized for the poor job they had done in trying to get First Nations groups educated about both the overall project and the measures being undertaken to mitigate potential risks. Kinder Morgan was determined not to make that mistake, determined that inadequate conferral would not be something that killed its project. It pushed the federal government on this front, too.

That First Nations groups would one day launch court actions to try and stop it was a given. And the Squamish, among other aboriginal groups, complied.

Of all the lawsuits levelled against the project, Kinder Morgan was still most nervous about the ones involving First Nations. Courts at all levels had, in recent years, sided heavily in favour of Indigenous groups, when it came to areas such as land rights and consultation.

There’s always been a feeling that if anything was going to threaten Trans Mountain, it would be a legal ruling that sided with a First Nations group opposed to the project – which is why Justice Christopher Grauer’s decision this week is so consequential.

While going to great pains to make it clear what his two rulings were not about – whether the project should go ahead, whether it is in the national interest or whether it presented unacceptable risks to the environment – he said in the case of the Squamish that he was satisfied that the consultation that took place as part of the NEB’s assessment process was adequate.

“I find that … consultation and accommodation sufficient to satisfy section 35 of the Constitution Act, 1982, had occurred, was reasonable and entitled to deference,” Justice Grauer ruled in dismissing the Squamish’s petition.

Of course, this is not the end of it. It never is with this project. There is still the reference question that the B.C. government is sending to the courts on jurisdiction. And the Federal Court of Appeal is soon expected to render a decision in a massive case, involving, among others, several First Nations groups along the coast and the B.C. Interior. It also centres around the question of consultation, and whether there was enough of it prior to the NEB and the federal cabinet approval of the pipeline expansion.

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It doesn’t necessarily follow that because the B.C. Supreme Court has ruled that consultation was sufficient, the federal appeal court will, too. But most legal observers believe that Justice Grauer’s decision certainly bodes well for Kinder Morgan, which must be anxiously awaiting the federal court’s verdict. Whether the company still has the stomach to go ahead with this endeavour is another matter.

If the company sells the project to Ottawa and walks away, which it could, it would be a seminal moment in the history of resource development in this country. Despite what federal Finance Minister Bill Morneau might say, there does not appear to be a lot of suitors waiting in the wings to take over this project should Kinder Morgan decide to wash its hands of it. (And increasingly, that is a view that many are subscribing to).

In the end, the project could end up surviving every court challenge thrown its way and still not proceed. Why? Because people may not have the appetite for the on-the-ground fight that still lies ahead. First Nations groups may lose their legal challenges, but win in the court of public opinion, especially after images of protesting aboriginal elders being carted away by Mounties or the army start being broadcast around the world.

Kinder Morgan could win all the battles and still lose the war.

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Police lay charges in alleged Calgary-based, $20-million Ponzi scheme

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Two Calgarians have been charged with fraud in connection with an alleged Ponzi scheme that netted more than $20 million from investors.

Following a decision by the Alberta Securities Commission (ASC), police claim Arnold Breitkreutz, 70, and Susan Way, 67, defrauded hundreds of Albertan investors by using their funds “contrary to what investors were told.”

Police say the pair took in over $27 million dollars in 2014 and 2015 and used the funds to pay off other investors instead of being used for mortgage lending.

“This has been an extremely complex investigation involving substantial resources, interviews and time,” Sgt. Doug Johnston with the RCMP Federal Serious and Organized Crime unit said in a release. “We are pleased to be able to conclude this investigation with charges and extend our gratitude to the various agencies who provided support to the RCMP.”

The ASC decision back in March found Breitkreutz and Way ran a Ponzi scheme through Breitkreutz’s company, Base Finance. The RCMP began looking into Breitkreutz, Way and Base Finance in 2015 after the ASC brought the Ponzi scheme to law enforcement.

The commission said Breitkreutz, Way used Base Finance to deceive investors into thinking they were putting their money into mortgages held by the company, rather than in a loan to an undisclosed entrepreneur involved in U.S. oil and gas developments, according to the regulator panel’s decision.

Between 2004 and 2015, the operators of Base Finance raised more than $137 million from upwards of 250 investors.

Breitkreutz and Way have both been charged with fraud over $5,000 and theft over $5,000.

“Conditions of their release include not to contact certain investors, to report to the RCMP regularly, to surrender their passports and remain in Canada, and not to deal with land or money or securities of others,” police said in a release.

The pair will appear in court on May 28 in Calgary.

RRumbolt@postmedia.com

On Twitter: @RCRumbolt

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Trump administration seeks WTO panel to resolve wine dispute with Canada

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The Trump administration said Friday it requested that the World Trade Organization set up a dispute settlement panel to rule on its claim of Canada‘s “discriminatory” trade practices involving U.S. wine.

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The dispute with Canada relates to policies at the provincial level that limit grocery store access to American wines. The marketplace for alcohol in several big Canadian provinces is controlled by government-run enterprises and liquor control boards, and in some cases they own and operate state-run retail networks.

Friday’s action specifically relates to the province of British Columbia, where liquor authorities in 2015 amended rules to allow regular grocery stores to start selling wine and liquor but in doing so separated U.S. and other imported wine from B.C.-only product. Even so, American wine industry executives say the U.S. industry continues to have market access issues in other Canadian provinces, including Ontario and Quebec.

Last year, the U.S. held consultations with Canada on the wine issue, but those talks failed to resolve the matter. The request for establishment of a WTO dispute panel is the next step in the settlement process.

The trade action was jointly announced by U.S. Trade Representative Robert E. Lighthizer and Agriculture Secretary Sonny Perdue, who requested that the WTO set up a dispute settlement panel to look at “unfair regulations” that govern the sale of wine in grocery stores in B.C.

According to the announcement, B.C.’s policy of excluding imported wine from grocery store shelves gives “substantial competitive advantage” to B.C. wine. “These regulations appear to breach Canada’s WTO commitments and have adversely affected U.S. wine producers.”

Canada is the largest single country market for U.S. wine, according to the Wine Institute, a trade organization representing more than 1,000 wineries and related businesses in California. California-produced wine is the No. 1 table wine category in B.C., and the retail value of U.S. wine sales to all of Canada last year was almost $1.1 billion.

“Wine Institute greatly appreciates the Trade Representative’s continued efforts to end these discriminatory practices and hold Canada accountable for their WTO obligations,” said Robert Koch, president and CEO of the Wine Institute. “Canadian consumers should have the same access to the vast array of the world’s great wines.”

Koch said his organization will continue to push “for equal treatment of imported and domestic wine by all Canadian provinces. Policies supporting B.C., Ontario and Quebec that provide favorable distribution and retail access, discounted excise taxes, and local bottling requirements for the benefit of domestic producers are contrary to Canada’s commitments to the WTO.”

The 2015 regulations adopted in B.C. allowed grocery stores in the province a so-called “wine on shelf” option to sell wine anywhere within the store but only BC-produced wine on grocery store shelves. Also, U.S. and other imported wine was only allowed to be sold in B.C. grocery stores where there was a separate so-called “store within a store” option.

“The B.C. policies would allow for imported wine to be in grocery stores within these completely separate [‘store within a store’] stores,” said Charles Jefferson, vice president of federal and international public policy for the Wine Institute. “But today I’m not aware of any grocery stores that have actually set up those kinds of arrangements.”

Yet, Jefferson said it’s “very hard to speculate” about the financial impact of the B.C. regulations on U.S. wine producers. “It’s really hard to see what the potential impacts are other than we know we’re being excluded from those consumers who are in the grocery store,” he said.

U.S. wine has an estimated 10 percent share of the B.C. marketplace.

“The practice of discriminating against U.S. wine is unfair and cannot be tolerated any longer,” Perdue said in a statement. “Our wine producers rely on export markets and they deserve fair treatment, especially by our northern neighbors in British Columbia.”

Lighthizer stated, “Discriminatory regulations implemented by British Columbia are unfairly keeping U.S. wine off of grocery store shelves, and that is unacceptable. Canada and all Canadian provinces, including B.C., must play by the rules. The Trump administration will continue to hold our trading partners accountable by vigorously enforcing U.S. rights under our trade agreements and by promoting fair and reciprocal trade through all available tools, including the WTO.”

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