Timothy M. Denton

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In the history of dumb ideas

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Why does this idea keep being pushed: that combining the Broadcasting Act with the Telecom Act is the appropriate response to "convergence"?

I gave an interview to a bright young thing this morning and her questions concerned this idea, largely because it is in the air. My response goes like this.

One, there is no such thing as "convergence". Convergence implies the coming together of things previously held apart. Broadcasting is not "converging" with anything. It is being absorbed into the Internet, just as the telephone system has been. The husk of the regulatory regime remains, managing ever smaller economic units of ever less relevance to consumers.

Convergence is how it seems when you think that previously separated technological silos are coming together. This is not the case: the silos are not coming together; they are being absorbed by something much more important.

Each formerly separate system had an "app", to speak in modern terms: voice telephony and full-motion video programming. Those "apps" still exist. But the technical underpinnings of delivering them, the substrates upon which they have been carried - are being absorbed, or have already been absorbed - into a computer architecture predicated on TCP/IP - as everyone discovers who has moved to Netflix.

Two, the two statutes are anti-thetical. One statute says do not discriminate unjustly or unduly against any kind of traffic. It posits a regulator to be the court of appeal as to what is unjust and undue. The other statute holds that any discrimination is to be encouraged that results in more money for Canadian television production.

So why combine in one act two antithetical ideas, unless you wish to achieve some change? Why bother troubling Parliament and opening the issue of cultural protection of Canadian broadcasting unless you intend to extend that protection?

Of course that is exactly the idea. The convergence of legislation idea is one of several ways to use legislative or regulatory change to save the broadcasting business model.

Just direct the CRTC in law always to consider the broadcasting implications of every telecom decision, or, better, state that one statute prevails over another, and voila! your Internet/Netflix problem disappears. Or, if you do not like the legislative approach, you can always try the method used in the recent Bell Mobility proceedings which contest the CRTC decision that said that Bell Mobility was offering a broadcasting app over a telecommunications infrastructure.The argument says that if it is broadcasting on top, it is broadcasting all the way down. This was recently argued in the Klass case and has yet to be heard in the Federal Court of Appeal.

The third method to overcome the problem which the Internet poses for broadcasting is to get an exemption order under section 9(4)of the Broadcasting Act - that'll do the trick! Wait! it has already been done. But you can amend the order, extend the order, or make up a new exemption order, and load it with conditions that amount to regulation. You can already see the flexibility of exemption orders in the recent decision of the CRTC to "exempt" specialty and pay TV offerings serving fewer than 200,000 customers.

What would be the advantage to declare jurisdiction over the Internet, and then exempt everything? Oh, by the way, the price of exemption is a little tax for the Canadian program production fund. Plus a few other conditions like only publishing non-sexist, non-racist utterly PC blogs. Why not?

And guess what? You do not need a full Commission to decide this. Just get the Chairman and two like-minded Commissioners of his choosing, and do this. On the principle of who hears, decides, the other Commissioners need only be consulted, and their opinions do not have to be listened to, because they did not hear the "evidence" at the hearing. So three Commissioners determine that a) the Internet when it uses full-motion video is a licensable activity under the Broadcasting Act; b)that a licensee is subject to severe penalties for "broadcasting" without a licence; c) that, to avoid those penalties, all it needs to do is contribute to the xyz Canadian production funds, and d) (it gets even better) the decision is not subject to Cabinet review!

What!?  Read the powers of the Governor in Council over licence decisions:

  •  (1) Where the Commission makes a decision to issue, amend or renew a licence, the Governor in Council may, within ninety days after the date of the decision, on petition in writing of any person received within forty-five days after that date or on the Governor in Council’s own motion, by order, set aside the decision or refer the decision back to the Commission for reconsideration and hearing of the matter by the Commission, if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1).

An exemption order is not a licence. 

9(4) The Commission shall, by order, on such terms and conditions as it deems appropriate, exempt persons who carry on broadcasting undertakings of any class specified in the order from any or all of the requirements of this Part or of a regulation made under this Part where the Commission is satisfied that compliance with those requirements will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1).

My scenario for extending the Broadcasting Act over the Internet, via exemption orders is by no means paranoid. The Commission has already proclaimed that the Internet, when it transmits full motion video, is subject to the Broadcasting Act. Thus newspapers are potentially "broadcasting undertakings" and subject to federal broadcasting licensing when they transmit video clips of news. And blogs that post video clips are also subject to speech controls vie "exemption" orders. We exempt you from regulation as long as you behave and say nice things about capitalism, socialism, Islam, atheism, Catholicism, global warming, or whatever the agenda of the day requires.

It ought to be clear that I think the chances of this happening successfully are zero or close to it, at least under the Harper regime. But I think the extension of CRTC jurisdiction over the Internet is far more likely through regulatory action than through legislative change.

The regulation of the Internet as "broadcasting" can be accomplished without legislative change, by loading a special panel of the CRTC with like minded enthusiasts for Canadian culture, excluding the net-heads, confining one's thinking to the narrowest of interpretations, and ignoring the global context. It also requires ignoring issues such as the constitutional right to free speech. I know lawyers who would argue this and I believe they could make it look reasonable.

To return the the "convergence" idea, why would you want to unite the two Acts into one unless you had quite specific objectives in mind? These objectives usually mean that the protection and promotion of Canadian content are to prevail over the free movement of traffic. So one Act prevails over another.

To my mind, "convergence" is one of those pseudo-deep ideas that disguise a cultural-nationalist protectionist agenda.

 

 

 

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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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