Timothy M. Denton

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Do we need amended communications legislation?

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I am at a conference in the University of Ottawa on the subject of "Rebooting Canada's Communications legislation". I was on the first panel. My position on changing legislation is quite simple. Do nothing.

The CRTC administers three statutes: the Telecommunications Act, the Broadcasting Act, and the Canadian Anti-Spam Act (CASL).

The Telecommunications Act is a scheme of non-discrimination. It provides for the movement of signals across systems without undue preference or unjust discrimination. It envisions competition as normal and desirable, not exceptional. It interposes a regulator and mediator between the carrier and the applications providers, and the carrier and the end user.

By contrast, the Broadcasting Act is all about discrimination in favour of Canadian signals. It depends on licensing, and it maintains strict controls over market entry. Its modus operandi is to restrict competition so that "stations" can maintain revenues so that they can carry out their regulated duties.

When you think of it, it is hard to imagine two statutes more antithetical in objectives, means, and assumptions. Yet they are administered by the same set of Commissioners.

Why?

Broadcasting constitutes at best 30% of the revenues under the regulation of the Commission, and yet absorbs roughly 70% of Commissioners' attention. The cultural industries command far more popular attention than telecoms, yet as we progress into the Internet era, carriage issues are becoming more important because "culture" is reaching us through Internet-mediated systems.

When people talk of uniting the Telecom and Broadcasting Acts, they cannot mean that both statutes will remain intact. One must prevail over the other. In the circumstances, the cultural objectives of the Broadcasting Act will be made to prevail. So say good bye to net neutrality, for instance, anytime some party claims the privileged position of a broadcaster.

This is essentially what is at issue in the Klass case, the appeal to the courts from Telecom Decision CRTC 2015-26.

The Internet has de-coupled applications (viz."programming" in Broadcasting Act lingo) from transport. The Broadcasting Act does not know of this technical reality. It assumes that if the signal is "broadcasting" on top then it is "broadcasting" all the way down the protocol stack. What is absurd in terms of the Internet is considered a reality in terms of broadcasting law.

So my solution for Canadian communications law is to

a) leave the two statutes, Telecom Act and Broadcasting Act separate;

b) understand the layered nature of the Internet;

  • that apps ride on transport, and
  • that carriers are not the sources of innovation in a world of apps;

d) allow the Broadcasting Act to wither as the world moves to Internet-delivered culture, or as I like to call it, to melt like an ice cube in a drink on a summer's day; and

e) separate the administration of telecommunications from broadcasting, so that two regulatory agencies exist where one is now. I do not mean adding personnel. I mean focusing one agency on telecommunications (and Internet-related carrier  issues) and leave broadcasting to be administered by the remnant of the CRTC.

In time the administration of the Broadcasting Act will come to seem like the College of Heraldry.

But above all, do not subordinate the Internet to the broadcasting policy for Canada. When people speak of amalgamating the Acts, this is what they usually intend.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Monday, 19 August 2019
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